Commencement date: (Today)
This Agreement is made on the commencement
date, by and between AVG and its Authorised Distributor in South Africa,
OASIS CC.
CK1998/047086/23 t/a AVG South Africa,
with its registered seat at 117 11th Street, Parkmore, Sandton, South Africa
(hereafter referred to as AVG)
and the Reseller, with its
registered seat at the Reseller Address above, represented by the
Reseller Representative (hereafter referred to as the Reseller).
Background
AVG owns or has the exclusive rights to
license and distribute protection software products known as "AVG Software".
The Reseller wishes to become a non-exclusive reseller of AVG Software
within the Territory, as defined below.
It is agreed as follows:
1. INTERPRETATION
In this Agreement:
AVG
refers to OASIS CC, authorised AVG distributor for South Africa,
appointed by AVG Headoffice in Czechoslovakia.
AVG Reseller Center
means the website administered by AVG and
dedicated to its resellers, accessible at
http://www.avgsa.co.za/rc.php
AVG Software
means the security software products
produced, owned or duly licensed by AVG, described in the AVG Reseller
Center, together with any other software and related documentation developed
by AVG and which AVG may permit the Reseller, by express notice in writing,
to promote and sell under this Agreement.
Confidential Information
means non-public information of either party
that is disclosed by one party to the other party pursuant to this Agreement
in written form or orally and marked "Confidential", "Proprietary" or with a
similar designation. If disclosed orally, such information is confidential
at the time of disclosure if a written summary of such information is sent
to the receiving party within thirty (30) days of disclosure and such
summary is marked "Confidential", "Proprietary" or with a similar
designation.
Confidential Information also includes all
summaries or abstracts of Confidential Information. The terms of this
Agreement and all personally identifiable information obtained from or about
End Users related to or arising from the use of the Restricted AVG Reseller
Center and Dedicated Site shall be deemed confidential, irrespective of
whether they are marked or identified as confidential or otherwise.
Dedicated Site
means any domain name which contains "AVG", "avg"
or any other trademark owned by AVG and its affiliates and subsidiaries.
Effective Date
means the date on which AVG delivers notice
to the Reseller confirming the acceptance of this Agreement and providing
the Reseller with a user name and a Password for the secure access to the
Restricted AVG Reseller Center.
End User
means an individual or a company purchasing
AVG Software for their internal use and not for resale.
Exclusive Territories
means the countries listed in the AVG
Reseller Center which comprise the countries in respect of which AVG may
from time to time appoint an exclusive distributor or reserve to itself.
Licence Number
means a unique licence number for each End
User provided by AVG that is necessary for any copy of AVG Software to be
activated upon installation.
Logo
means the AVG Software logo and the AVG Authorized Reseller logo
available in the Restricted AVG Reseller Center.
Password
means a secret and individualised
authentication data used by AVG’s reseller in order to have access to and to
effect operations in the Restricted AVG Reseller Center.
Resellers Discount Policy
means AVG’s policy of discounts granted by
AVG to resellers referred to in the AVG Reseller Center, which may be
amended by AVG from time to time.
Reference Period
means a period of six (6) months from the
Effective Date and each consecutive period of six (6) months thereafter
during the term of this Agreement.
Restricted AVG Reseller Center
means the website administered by AVG and
dedicated to its existing resellers and protected by the Password,
accessible at
http://www.avgsa.co.za/rc.php
Suggested Retail Price List
means a list of suggested retail prices
referred to in the AVG Reseller Center, which may be amended by AVG from
time to time without notice.
Terms and Conditions
means "AVG's Binding Terms and Conditions of
Logo Usage for Resellers" accessible in the Restricted AVG Reseller Center.
Territory
means the territory of SOUTH AFRICA.
2. APPOINTMENT AND RELATED PROVISIONS
a. Appointment of the Reseller
AVG, subject to the terms and conditions of
this Agreement, hereby appoints the Reseller as a non-exclusive reseller of
AVG Software in the Territory for the End User’s internal use and not for
resale. The Reseller undertakes to use its best endeavours to promote the
sale of AVG Software to End Users in the Territory.
b. Licence to reproduce and sell AVG
Software AVG further grants the
Reseller a non-exclusive and royalty-free licence to reproduce and sell AVG
Software as necessary for the purposes of its sale to End Users, in
accordance with the terms set forth in clauses 2.c, 2.f, and 6, and of equal
quality to that provided by AVG. Upon request by AVG, the Reseller shall
timely provide a sample of its reproduction of AVG Software for review and
approval by AVG.
c. Licence to use the Logo
AVG grants the Reseller a non-exclusive and
royalty-free right and licence, when acting under this Agreement, to use the
Logo in accordance with the Terms and Conditions, in the promotion,
advertisement and sale of AVG Software in the Territory. Whilst performing
its obligations under this Agreement, the Reseller may describe itself as an
"AVG Authorized Reseller".
d. Restrictions
The Reseller undertakes not to sell, ship or
divert AVG Software outside of the Territory without AVG's written consent.
To the extent that AVG grants such consent, the Reseller agrees to be
responsible for exporting AVG Software in accordance with all applicable
export laws and regulations. In addition, the Reseller agrees not to engage
in buying via the grey market.
e. No transfer
For the purposes of this Agreement, the words
"licence" or "distribution" shall not be interpreted as a partial or full
transfer of AVG's rights to AVG Software to the Reseller. No right to
further copy, borrow, rent, sell, sublicense or otherwise dispose of AVG
Software will be constituted for the Reseller beyond the Reseller's rights
granted under clauses 2.a, 2.b and 2.c above. All rights not explicitly
granted hereunder to the Reseller are reserved to AVG.
f. Procedure and policies
The Reseller acknowledges that, in order to
activate any copy of AVG Software, the Reseller or the End User must obtain
the Licence Number from AVG in accordance with the procedures then currently
effective and established in the Restricted AVG Reseller Center. The
Reseller agrees to review the Restricted AVG Reseller Center regularly and
at least once every fifteen (15) days for changes in the procedures, and to
comply at all times with such procedures. The Reseller shall be solely
responsible for distributing Licence Numbers to its End Users. The Reseller
agrees to comply at all times with all AVG's policies available in the
Restricted AVG Reseller Center.
g. End User Licence Agreement
The Reseller acknowledges that each End
User is required to accept AVG's appropriate then currently effective End
User Licence Agreement before its first use of AVG Software. The Reseller
agrees that it shall ensure that the End User unambiguously and with full
awareness consents to AVG's then current End User Licence Agreement, failing
which it shall compensate AVG for or indemnify AVG against all costs,
expenses, losses and liabilities arising from the Reseller's failure to do
so.
h.
During the term of this Agreement, the
Reseller will not directly or indirectly sell any product or service other
than AVG Software and services related thereto through any Dedicated Site
without the prior written consent of AVG, which should not be unreasonably
withheld.
i. Suggested Retail Price List
The Suggested Retail Price List contains
AVG's suggested retail prices of AVG Software for End Users. The actual
retail prices of AVG Software charged by the Reseller to its purchasers may
differ from the suggested retail prices provided by AVG in the Suggested
Retail Price List. The Reseller acknowledges that AVG may, at its sole
discretion, make changes to the Suggested Retail Price List from time to
time by displaying a notification of the revised Suggested Retail Price List
on the Reseller's screen on entering the Restricted AVG Reseller Center.
j. Change of control
The Reseller shall inform AVG immediately of
any changes in ownership or control of the Reseller and of any change in its
organisation or method of doing business.
k. Support
During the term of this Agreement, AVG shall
make available updates (including updated virus definitions),
upgrades, error corrections and
service packs for download by End Users.
l. OEM License Agreement:
The
reseller will ensure that each AVG OEM license is only sold bundled with a
complete computer system.
3. RESELLER'S IDENTIFICATION
a. Restricted AVG Reseller Center
The Reseller shall access the
Restricted AVG Reseller Center using an individualised user name and the
Password provided by AVG. The Reseller agrees that any order placed with AVG
by electronic means mentioning or utilising the Reseller's user name or
Password is a valid and binding purchase order. AVG is entitled to rely on
all transmitted data in the form received by AVG.
b. Protection
The Reseller shall implement and maintain
reasonable security measures to ensure the Password is only used by
authorised persons for its authorised purpose. The Reseller acknowledges
that AVG does not guarantee the internet security and the possibility of
interception or corruption of data transmitted from the Reseller to AVG
using the correct Password.
c.
The Reseller shall promptly inform AVG in
writing, if there is a reason to believe or suspect that the security or
confidentiality of the Password has been or may be lost or misused in any
way so that a mitigating action may be taken and arrangement made, if
appropriate, for the issue of a new Password. The Reseller shall be
responsible for any loss, damage, costs and inconvenience suffered or
incurred by AVG in consequence of any loss or misuse of the Password by any
person connected with the Reseller or by any other party, whether or not
known to the Reseller.
4. PRICES AND PAYMENT
a. Wholesale prices and fees
The Reseller shall pay to AVG for each
copy of AVG Software that the Reseller orders from AVG the wholesale
purchase price calculated based on the Suggested Retail Price List net of
discount calculated in accordance with AVG's Resellers Discount Policy then
currently effective and established in the AVG Reseller Center. For any and
all copies of AVG Software ordered on a compact disc (CD-ROM) or another
similar medium, all shipping, handling and other fees and charges incurred
in connection with the delivery of the product will be added to such
purchase price.
b. Payment
The Reseller shall pay the purchase price and
other fees either by cheque, credit card or a bank transfer prior to the
delivery of products (copies of AVG Software or Licence Numbers) based on an
invoice issued by AVG, in accordance with the amount of products ordered by
the Reseller, and sent to the Reseller by e-mail, fax, or registered mail.
Each bank transfer must include the Reseller's identification provided by
AVG. AVG shall have no obligation to deliver to the Reseller any products or
Licence Numbers until a full and proper payment is received by AVG. All fees
arising from transferring funds are the sole responsibility of, and are
borne by, the Reseller.
c. Credit account
If at any time AVG advances credit to the
Reseller, then in place of clause 4.b the Reseller shall pay the purchase
price and other fees by a bank transfer based on an invoice (with 30 day
maturity from the date of delivery of AVG Software or Licence Numbers)
issued by AVG, in accordance with the amount of sold products i.e. copies of
AVG Software or Licence Numbers delivered to the Reseller, and sent to the
Reseller by e-mail, fax, or registered mail. Each bank transfer must include
the Reseller's identification provided by AVG. Other conditions for granting
a credit account are available on request. A credit amount may be used by
the Reseller only after receiving a written confirmation by e-mail, fax, or
registered mail from AVG of granting of a credit account and its applicable
limits.
d. Due payment
If the Reseller fails to make payment on the
date due as stipulated in clause 4.c, without prejudice to its other rights
and remedies, AVG may (i) suspend any further deliveries and services to the
Reseller, and (ii) charge, and the Reseller will pay, interest, accruing
daily from the due date to the date of actual payment on any overdue amounts
under this Agreement at the rate of 0.25 per cent. per day.
e. Taxes
Any amount payable under this Agreement by
the Reseller to AVG is exclusive of any value added tax, sales tax, customs
or any other tax of a similar nature which might be chargeable in connection
with that amount. If any such tax is chargeable, the Reseller must pay to
AVG (in addition to and at the same time as paying that amount) an amount
equal to the amount of that tax.
The Reseller shall also pay directly and
without any delay all other applicable taxes, including but not limited to,
income, personal property, stamp or other taxes and fees, levies, duties or
other imposts or fees, including withheld taxes, together with all
penalties, fines and interest thereon that in any way arise out of this
Agreement and to which AVG or Reseller shall be liable, whether on or
measured by the price, charges, programs or services furnished, or their
use, however designated, levied or based.
The Reseller must make all payments to be
made by it under this Agreement without any tax deduction unless a tax
deduction is required by law. If a tax deduction is required by law to be
made by the Reseller, the amount of the payment due from the Reseller will
be increased to an amount which (after making the tax deduction) leaves an
amount equal to the payment which would have been due if no tax deduction
had been required.
f. Other expenses
Any and all expenses, costs and charges
incurred by the Reseller in the performance of its obligations under this
Agreement shall be paid by the Reseller unless AVG has expressly agreed
beforehand in writing to pay such expenses, costs and charges.
g. Delivery
Delivery of AVG Software shall be made by AVG
to such a place as agreed between AVG and the Reseller. Any dates set up for
delivery of AVG Software are approximate and AVG shall not be liable for any
delay in delivery however caused.
5. TERM AND TERMINATION
a. Term and termination
This Agreement is concluded for an indefinite
period of time and shall commence on the Effective Date. Subject to clause
10.e, either party may terminate this Agreement by not less than thirty (30)
days' prior written notice served on the other party by e-mail, fax, or
registered mail.
b. Immediate termination
Without prejudice to its other rights or
remedies, either party may terminate this Agreement immediately by written
notice to the other party, if the other party (i) breaches any of its
obligations under this Agreement and either that breach is incapable of
remedy or the other party shall have failed to remedy that breach within
thirty (30) days after receiving written notice requiring it to remedy that
breach; or (ii) is unable to pay its debts or becomes insolvent or an order
is made or a resolution passed for the administration, winding-up or
dissolution of the other party or the other party enters into or proposes
any composition or arrangement with its creditors generally or anything
analogous to the foregoing occurs in any applicable jurisdiction.
c. Challenge of the intellectual
property rights AVG shall have the
right, without prejudice to its other rights or remedies, to terminate this
Agreement immediately upon delivery of a written notice to the Reseller if
the Reseller challenges the intellectual property rights of AVG.
d. Change of control
AVG shall have the right, without prejudice
to its other rights or remedies, to terminate this Agreement immediately
upon delivery of a written notice to the Reseller if there is a change of
control of the Reseller or any holding company of the Reseller.
e. Volume Level
AVG shall have the right to terminate this
Agreement immediately upon delivery of a written notice to the Reseller if
the Reseller fails in any Reference Period to order and pay AVG Software in
value of at least ZAR 10000.
f. Revised and updated terms and
conditions of this Agreement If
the Reseller fails to accept the revised and updated terms and conditions of
this Agreement duly published by AVG in the Restricted AVG Reseller Center
in accordance with clause 10.e of this Agreement within thirty (30) days of
such publication, AVG shall have the right to terminate this Agreement
immediately upon delivery of a written notice to the Reseller.
g. Effects of termination
Upon termination of this Agreement, the
Reseller shall (i) deliver, within fifteen (15) days after the termination
of this Agreement, to AVG all AVG Software including code, the Licence
Numbers and documentation, covered by this Agreement, or destroy or erase
any versions of such material which cannot be returned to AVG, (ii) cease
using the Dedicated Sites, and (iii) in case AVG or its affiliate or
subsidiary is not the owner of the Dedicated Site, without delay assign it
to AVG or AVG's designee. AVG shall reimburse the Reseller all costs
incurred in relation to the registration of the Dedicated Site. Licences and
rights referred to in clauses 2.a, 2.b and 2.c of this Agreement shall
automatically end on termination of this Agreement. Any termination of this
Agreement shall not affect any rights or liabilities of either party accrued
at the date of termination, nor shall it affect the coming into force or the
continuance in force of any provision of this Agreement which is expressly
or by implication intended to come into force or continue in force on or
after termination.
6. OWNERSHIP AND RESTRICTIONS
a. Ownership
The Reseller hereby acknowledges that, as
between the Reseller and AVG, all patents, copyrights, trade secret rights
and other intellectual property rights embodied in AVG Software are and at
all times shall remain the sole and exclusive property of AVG. The Reseller
shall not challenge AVG's ownership of the Dedicated Site unless it is owned
by any other person than AVG or AVG's affiliate or subsidiary. The Reseller
shall reproduce AVG's copyright notices, confidential or proprietary legends
and trademarks, in substantially the same manner as they exist on copies of
AVG Software provided directly by AVG, on each copy of AVG Software that the
Reseller reproduces pursuant to this Agreement. The existence of a copyright
notice shall not cause, or be construed as causing, any of AVG Software to
be anything other than a copyrighted work with all rights reserved under the
applicable copyright laws. Nothing in this Agreement shall be construed to
grant the Reseller any rights with respect to the source code version of AVG
Software.
b. Protection of AVG's intellectual
property rights The Reseller shall
implement and maintain reasonable security measures to safeguard all AVG
Software materials, and all copies of AVG Software materials made by or on
behalf of the Reseller, from access or use by any unauthorised person. The
Reseller shall not, and shall not permit or cause any third party to, alter,
update, upgrade or modify the whole or any part of AVG Software nor merge
any part of AVG Software with any other computer software programs nor, save
to the extent expressly permitted by applicable laws, decompile, disassemble
or reverse engineer the object code of AVG Software nor attempt to do any of
these things. Unless agreed otherwise in this Agreement, the Reseller shall
not alter, obscure, remove, interfere with or add to any of the trade marks,
trade names, logos or notices used on or contained in AVG Software materials
at the time they are delivered to the Reseller and shall ensure that all
those trade marks, trade names, logos and notices are reproduced on all
copies of AVG Software materials made by or on behalf of the Reseller.
7. CONFIDENTIALITY
a. General provision
Confidential Information may be used only for
performance under this Agreement but may not be copied or reproduced unless
such copying or reproduction is a requirement for using such information.
Any and all Confidential Information remains the property of the disclosing
party and the receiving party is obliged to return to the disclosing party
all copies and reproductions no later than the date or termination of this
Agreement. The Reseller undertakes to comply with the terms of AVG's Privacy
Policy available at AVG's corporate website (http://www.AVG.com).
b. Non-disclosure and non-use
obligation The receiving party
shall (i) at all times, both during the term of this Agreement and at all
times thereafter, keep in confidence and trust all of the Confidential
Information received; (ii) not use the Confidential Information of the
disclosing party other than as necessary to perform its obligations or
exercise its rights under this Agreement; (iii) take all reasonable steps to
prevent unauthorized disclosure or use of the Confidential Information of
the disclosing party and to prevent it from falling into the public domain
or into the possession of unauthorised persons. The receiving party shall
not disclose Confidential Information of the disclosing party to any person
or entity other than its officers, employees and consultants who need access
to such Confidential Information in order to effect the intent of this
Agreement and who have entered into written confidentiality agreements with
the receiving party which protects the Confidential Information of the
disclosing party; and (iv) not use the End User data to send unsolicited
email messages to End Users. Should an End User specifically ask either
party not to use the data in any particular way, it will not be used in a
manner that is inconsistent with that request. If either party is notified
of such request, this party will notify the other party thereof.
c. Legal disclosures
A disclosure of Confidential Information in
response to a valid order by a court or other governmental authority, or
otherwise required by law, shall not be considered to be a breach of this
Agreement or a waiver of confidentiality for other purposes, provided that
the party disclosing Confidential Information shall send to the other party,
without any delay, a written notice thereof.
d. Other permitted disclosures
Either party may provide a copy of this
Agreement to potential acquirers, merger partners or investors and to their
employees, agents, attorneys, investment bankers, financial advisors and
auditors in connection with the due diligence review of such party who are
under obligation of confidentiality substantially similar to those set forth
in this Agreement. In addition, either party may provide a copy of this
Agreement to (i) a public accounting firm in connection with the quarterly
and annual financial or tax audits; and (ii) to outside legal advisors in
connection with obtaining legal advice relating to this Agreement or any
related matters.
e. Exceptions
Confidential Information classification shall
not apply to information that (i) is already known to the receiving party at
the time of disclosure; (ii) becomes publicly known through no action or
failure to act of the receiving party; (iii) is received by the receiving
party from a third party without restriction on disclosure; (iv) is
independently developed by the receiving party without reference to the
Confidential Information of the disclosing party; or (v) is approved for
release by written authorisation of the disclosing party. The receiving
party bears a burden of proof under subsections (i) and (iv) of this clause
7.e.
f. Remedies
Both parties agree that any breach of clause
7 of this Agreement may cause irreparable injury to the disclosing party for
which there is no adequate remedy at law, entitling the disclosing party to
injunctive relief in addition to all other available legal remedies.
8. REPRESENTATIONS AND WARRANTIES
a. Representations by AVG
AVG represents to the Reseller that AVG has
sufficient rights in and to AVG Software and the Logo to grant the rights
contemplated by this Agreement without obtaining the consent of any other
person and, to the best of AVG's knowledge, AVG Software does not infringe
any South African copyright, South African patent or other South African
intellectual property right.
b. Representations by the Reseller
The Reseller represents, warrants
and undertakes to AVG that the Reseller has made and will make no
representation, warranty, claim or promise to any party relating to AVG
Software except as AVG has expressly authorised in writing.
c. Warranty
AVG extends a warranty on all of its products
pursuant to applicable legal provisions. The negotiated warranty period is
thirty (30) days and commences upon products being received and accepted by
the Reseller or the End User.
d. Disclaimer
AVG expressly disclaims and excludes any and
all other warranties, whether express or implied, including (i) all implied
warranties of merchantability and fitness for a particular purpose with
respect to AVG Software; or (ii) all warranties that AVG Software will meet
the requirements of the Reseller or any End User or operate in any
combination selected by the Reseller or any End User. No warranty is given
by AVG that AVG software will be bug-free or that it will operate without
interruptions.
9. LIMITATION OF LIABILITY
a.
Under this Agreement, AVG's liability to the
Reseller or to any third party, in tort, contract or otherwise, for claims,
losses, damages or injuries arising out of or relating to this Agreement
will be limited to the amounts paid by the Reseller in respect of the copy
or copies of AVG Software giving rise to the claim in question.
b.
In no event shall AVG be liable to the
Reseller or any third party for any consequential or special damages or lost
profits, revenues or contracts, including, without limitation, consequential
or special damages for loss of goodwill, work stoppage, computer failure or
malfunction, loss of data, loss of work product, or any and all other
commercial damages or losses, direct or indirect, even if AVG has been
advised of the possibility of such damages or losses and whether arising
from negligence, breach of contract or otherwise.
c.
Neither party may bring an action against the
other under or in relation to this Agreement (whether for negligence, breach
of contract, misrepresentation, under any indemnity or otherwise) more than
one (1) year after that party becomes aware of the cause of action, claim or
event giving rise to the cause of action or claim.
d.
Each party shall take all reasonable steps to
mitigate the loss and damage it incurs in relation to any claim or action
(whether for negligence, breach of contract, misrepresentation, under any
indemnity or otherwise) which it brings against the other.
e.
The parties agree that the limitations and
exclusions set out in this clause are reasonable, having regard to all the
relevant circumstances and the levels of risk associated with each party's
obligations under this Agreement.
f. Remedy
The contracting parties have agreed that in
case of damage referred to in clause 9.a and clearly proven by the Reseller,
compensation equal to the amount of the price paid by the Reseller for one
(1) copy of AVG Software will be paid by AVG, or, at AVG's option, the
affected copies of AVG Software shall be replaced by AVG free of charge.
g. Indemnification
Beyond the liability of AVG set out in this
clause 9, the Reseller shall defend and hold harmless AVG and each of its
managers, members, affiliates, agents and representatives from and against
any and all claims, losses, damages and liabilities caused to any third
party arising out of or based on distribution of AVG's products under this
Agreement unless such damages, claims or losses have been directly caused by
any wilful act or gross negligence of AVG. Nothing shall limit the liability
for fraud or for the personal injury arising from negligence of either party
or that of its employees, agents or sub-contractors.
10. MISCELLANEOUS
a. Notices
All notices, requests, demands, and other
communications under this Agreement shall be in writing and shall be deemed
to have been duly given when delivered in person, by e-mail, fax or, if
mailed, when mailed by the appropriate postal service, postage prepaid, to
the parties at the address specified in the heading of this Agreement. In
case of any changes to either contracting party's registered seat or if the
mailing address differs from the registered seat, the affected contracting
party is obligated to inform the other in writing of such facts.
b. Choice of law
This Agreement shall be governed by, and
construed in accordance with, the federal laws of the United States of
America and the laws of the state of Delaware excluding conflicts of laws
principles.
c. Dispute resolution
Should any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, fail to be resolved amicably, such dispute may be referred by either party to and finally be resolved by an expedited arbitration process administered by the Arbitration Foundation of Southern Africa (AFSA) in accordance with AFSA's Expedited Rules by an arbitrator selected in accordance with such Rules, which Rules are deemed to be incorporated by reference into this clause. The number of arbitrators shall be one. The seat, or legal place, of arbitration shall be Johannesburg, South Africa. The arbitration shall be conducted in the English language, unless agreed otherwise. The contracting parties agree to be bound by and perform in accordance with the decision of that arbitration court as if it were a ruling issued by a court of law. This clause is without prejudice to each party's right to seek interim relief against the other party (such as injunction) through any court of competent jurisdiction to protect its rights and interests, or to enforce the obligations of the other party.
d. Entire Agreement and amendment
This Agreement constitutes the
entire understanding between the parties relating to the subject matter of
this Agreement and supersedes all prior writings, negotiations or
understandings with respect thereto. Subject to clause 10.e of this
Agreement, no modification or addition to this Agreement shall have any
effect unless it is set forth in writing and signed by both parties or
concluded by electronic means.
e.
The Reseller acknowledges and agrees that the
terms and conditions of this Agreement may be revised and updated from time
to time by AVG and such revised and updated Agreement shall acquire effect
and contractual force between AVG and the Reseller and shall supersede and
replace the contractual terms and conditions then in operation. AVG shall
publish a written notification of the revised and updated terms and
conditions of this Agreement, which shall be automatically displayed on the
Reseller's screen on entering the Restricted AVG Reseller Center. The
Reseller shall have the right to accept the new terms and conditions by
clicking the accept button in the Restricted AVG Reseller Center within
fifteen (15) days after such notification of the revised and updated
Agreement was displayed on his screen for the first time (the "Acceptance
Period"). During the Acceptance Period, the then current terms and
conditions shall remain in operation. If the Reseller does not accept the
revised and updated terms and conditions within the Acceptance Period, or if
the Reseller explicitly rejects the revised and updated Agreement, the then
current terms and conditions shall continue to remain in operation, however,
AVG shall have the right to terminate this Agreement immediately upon
delivery of a written notice to the Reseller.
f. Severability
Should any provisions of this Agreement be
illegal, invalid or unenforceable under any applicable laws or regulations,
all other provisions of this Agreement shall remain in effect.
g. Waiver
The failure of either party to insist upon
the strict performance of any of the terms, conditions and provisions of
this Agreement shall not be construed as a waiver or relinquishment of
future compliance therewith, and said terms, conditions and provisions shall
remain in full force and effect. No waiver of any term or any condition of
this Agreement on the part of either party shall be effective for any
purpose whatsoever unless such waiver is in writing and signed by such
party. The waiver by either party of a breach of any provision of this
Agreement shall not be construed as a continuing waiver of such breach or as
a waiver of other breaches of the same or of other provisions of this
Agreement.
h. Assignment
Reseller may not assign its rights or
obligations under this Agreement or subcontract any portion of its
performance hereunder without AVG’s prior written consent sent by e-mail,
fax, or registered mail. AVG may assign its rights or delegate its duties
hereunder without the Reseller's consent in whole or in part to any AVG
affiliate or subsidiary, to a purchaser of part or all of AVG's shares, to a
purchaser of part or all of AVG's business, or to a distributor appointed by
AVG for the Territory. AVG shall display a notification thereof on the
Reseller's screen on entering the Restricted AVG Reseller Center.
This Agreement has been concluded on
behalf of the Reseller by its duly authorised representative here and by
electronic means.
