VAR Agreement

Document Version 1.1 — Published January 30, 2024

Background

Enclave has developed the Enclave Products, which it makes available to subscribers via the Internet on a subscription basis.
Enclave Networks Limited wishes to appoint the VAR as its non-exclusive value-added reseller to distribute the Enclave Products (as defined below) either independently or combined with the VAR Products (as defined below).
The VAR agrees to either resell the Enclave Products independently or combine the Enclave Products with the VAR Products and to distribute them as Combined Products (as defined below) on and subject to the terms and conditions of this agreement.

Agreed terms

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

Term	Definition
Applicable Laws	1. to the extent UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom; or 1. To the extent EU GDPR applies, the law of the European Union or any member state of the European Union to which the Supplier is subject.
Applicable Data Protection Laws	1. To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data; or 1. To the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the Supplier is subject, which relates to the protection of personal data.
Authorised User	those individuals who are using the Enclave Products and/or the Combined Products.
Business Day	a business day is any weekday (Monday to Friday) that is not a public holiday or a bank holiday. Business days to not include weekends, which are Saturday and Sunday.
Business Hours	the period from 9.00am to 5.00pm on any Business Day.
Combined Products	collectively the Enclave Products and the VAR Products licensed by the VAR to its customers as described in Schedule 1.
Enclave Products	those software applications and products listed in Schedule 1 and the associated documentation relating to each of them together with any other products and related documentation developed by Enclave and which Enclave may permit the VAR, by express notice in writing, to market pursuant to this agreement.
Confidential Information	information that is proprietary or confidential and is either clearly labelled as such or otherwise identified as Confidential Information.
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 Enclave, and controls, controlled and the expression change of control shall be construed accordingly.
Effective Date	the date of this agreement.
EU GDP	the General Data Protection Regulation ((EU) 2016/679).
EU Law	the law of the European Union or any member state of the European Union.
EULA / Customer Agreement	the end user licence agreement in the form set out in Schedule 2.
Intellectual Property Rights	patents, rights to inventions, copyright and neighbouring and related rights, trademarks 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, whether or not in the United Kingdom.
Mandatory Policies	Enclave’s business policies and codes (as notified to the VAR from time to time) set out in Schedule 4.
Relevant Terms	has the meaning set out in #10
Relevant Policies	has the meaning set out in #10.1.3
Relevant Requirements	has the meaning set out in #10.1.1
Subscription Term	means the period of time under which an Authorised User has paid to use the Enclave Products.
Territory	means UK, Ireland and Europe.
Trademarks	the trademark registrations and applications identified in Schedule 3 together with any further trademarks which Enclave may permit or procure permission for the VAR by express notice in writing to use in respect of Enclave Products.
UK GDPR:	has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
User Subscriptions	the user subscriptions purchased by the VAR and resold to Authorised Users, which enable access to and use of the Enclave Products and/or the Combined Products.
VAR Products	the products of the type and specification referred to in Schedule 1.
Viruses	anything or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices
Year	the period of 12 months from the Effective Date and each consecutive period of 12 months thereafter during the term of this agreement.

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).
A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.
Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
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 e-mail.
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.

Appointment
1. Enclave hereby appoints the VAR as its non-exclusive distributor to distribute User Subscriptions to the Enclave Products, either independently or as part of the Combined Products in the Territory on the terms of this agreement.
2. The VAR undertakes not to:
  1. combine Enclave Products with any third party products unless Enclave has provided its prior consent;
  2. distribute Enclave Products other than as combined with the VAR Products.
3. The VAR shall be entitled to describe itself as an “Authorised Value Added Reseller” of Enclave Products but shall not represent itself as an agent of Enclave for any purpose, nor pledge Enclave’s credit or give any condition or warranty or make any representation on Enclave’s behalf or commit Enclave to any contracts. Further, the VAR shall not without Enclave’s prior written consent make any representations, warranties, guarantees or other commitments with respect to the specifications, features or capabilities of Enclave Products which are inconsistent with those contained in the promotional material supplied by Enclave (including, without limitation, the EULA) or otherwise incur any liability on behalf of Enclave howsoever arising.
4. The VAR shall not sell any of the Combined Products through a sales agent or to a sub-distributor or reseller without the prior express written permission of Enclave which shall not be unreasonably withheld or delayed. Where Enclave agrees to any such appointment, the VAR 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 Enclave as set out in this agreement. The VAR shall be liable for any acts or omissions of its sub-distributor or reseller as if they were acts or omissions of the VAR.
5. The VAR’s appointment under this 2 only grants to the VAR a licence to distribute Enclave Products either independently or as part of the Combined Products, and does not transfer any right, title or interest to any such Enclave Products to the VAR, its customers or any Authorised Users. Use of the terms “sell”, “license”, “purchase”, “licence fees” and “price” will be interpreted in accordance with this clause.
6. Enclave reserves the right to sell Enclave Products directly to its customers, other resellers inside or outside the Territory and/or to Authorised Users.
User Subscriptions
1. Due to the nature of the Enclave Products, access to the Enclave Products will be accessed through User Subscriptions. As such Enclave grants the VAR a non-exclusive, non-transferable right and license, to permit Authorised Users to use the Enclave Products during the Subscription Term.
2. In relation to the Authorised Users, the VAR undertakes that:
  1. the maximum number of Authorised Users that it authorises to access and use the Enclave Products shall not exceed the number of User Subscriptions it has purchased from Enclave;
    1. it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Enclave Product;
    2. it shall maintain a written, up to date list of current Authorised Users and provide such list to Enclave within 5 Business Days of Enclave’s written request.
3. The VAR shall not, and shall ensure that the Authorised Users shall not, access, store, distribute or transmit any Viruses, or any material during the course of its distribution of the Enclave Products and/or Combined Products that:
  1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
    1. facilitates illegal activity;
    2. depicts sexually explicit images;
    3. promotes unlawful violence;
    4. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
    5. is otherwise illegal or causes damage or injury to any person or property;
    6. and Enclave reserves the right, without liability or prejudice to its other rights to the VAR, to disable the VAR’s and/or the Authorised Users access to any material that breaches the provisions of this clause.
4. The VAR shall not and shall ensure that the Authorised Users shall not:
  1. except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this agreement:
    1. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Enclave Products in any form or media or by any means;
    2. attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Enclave Products;
  2. access all or any part of the Enclave Products in order to build a product or service which competes with the Enclave Products; or
  3. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Enclave Products available to any third party except the Authorised Users;
  4. attempt to obtain, or assist third parties in obtaining, access to the Enclave Products other than as provided under this Agreement; or
  5. introduce or permit the introduction of, any Virus into Enclave’s network and/or systems.
5. The VAR shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Enclave Products, and in the event of any such unauthorised access or use, promptly notify Enclave.
VAR’s Undertakings

The VAR undertakes and agrees with Enclave to:
1. use reasonable efforts, within its capabilities and resources, to promote the distribution and sale of the Enclave Products and/or Combined Products in the Territory. This may include, but is not limited to, digital marketing, collaborations, or indirect sales strategies, as per the VAR’s operational capacity. The VAR is not obligated to maintain a dedicated sales force but shall not engage in activities that hinder or interfere with the sale of such products and, without limitation;
  1. to demonstrate the features and capabilities of the Software Products; and
  2. actively to solicit orders for the Enclave Products and/or the Combined Products from customers and prospective customers;
2. combine Enclave Products with the VAR Products solely in accordance with the combination instructions supplied by Enclave from time to time in writing and subject to any testing requirements that Enclave may reasonably impose;
3. ensure that customers and/or Authorised Users of the Enclave Products and/or the Combined Products are aware of and accept the terms and conditions of the EULA before using the Software Products;
4. refrain from amending or varying the terms of the EULA;
5. employ a sufficient number of suitably qualified personnel to ensure the proper fulfilment of the VAR’s obligations under this agreement;
6. 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 Enclave, using the Enclave Partner Portal, sales and subscription data showing details of:
  1. all relevant information regarding sales of the Combined Products, including but not limited to number of User Subscriptions sold, renewals and cancellations/churn during the month concerned;
  2. all outstanding orders; and
  3. any other information relating to the performance of its obligations under this agreement Enclave may reasonably require from time to time;
7. within 14 days of a written request from Enclave at any time, and from time to time, provide such information as is reasonably requested by Enclave about the VAR’s processes and controls to support compliance with this agreement;
8. maintain on its own account an inventory of Enclave Products at levels which are appropriate and adequate for the VAR to meet all customer delivery requirements for the Combined Products;
9. maintain accurate and transparent records of all activities and transactions relating to the Combined Products. This includes, but is not limited to, user subscription activations, renewals, cancellations, and customer interactions. If Enclave has reasonable grounds to suspect that the VAR may be in breach of any terms of this agreement, Enclave reserves the right upon reasonable notice to conduct, or have conducted by a nominated third party, an audit of all of the VAR’s records and practices related to this agreement. Enclave’s costs of such inspection will be borne by Enclave unless it shows a shortfall exceeding 5% in respect of any period to which the inspection relates between the amount actually paid by the VAR and the amount due to be paid by the VAR, in which event (without affecting or prejudicing any other rights Enclave may have) the VAR will pay in full Enclave’s costs (which for the avoidance of doubt will include any reasonable costs of Enclave’s nominee in carrying out the inspection) and the amount of the shortfall, within 14 days of the date of Enclave’s invoice for such costs and/or shortfall.
10. keep all copies of Enclave Products and the Combined Products in conditions appropriate for their storage and provide appropriate security for Enclave Products, all at its own cost;
11. during the term of this agreement and for a period of twelve (12) months after the termination of this agreement, provide to customers a pre and after-sale support service in respect of the Enclave Products and/or Combined Products on terms at least as favourable as the pre- and after-sale support service the VAR provides in respect of any VAR Products, including, without limitation, the provision of necessary and useful installation assistance and consultation on the use of Combined Products; timely responses to customers’ general questions concerning use of Combined Products; and assistance to customers in the diagnosis and correction of problems encountered in using Combined Products;
12. on a monthly basis and subject to #4.6, provide Enclave such information about the VAR’s customers of the Combined Products as is reasonably required by Enclave for the purposes of managing and enforcing the terms of the EULAs with such customers; and
13. inform Enclave immediately of any changes in ownership or Control of the VAR and of any change in its organisation or method of doing business which might affect the performance of the VAR’s duties in this agreement.
Supply of Enclave Products
1. Enclave shall supply the following in the form agreed by the parties:
  1. within a reasonable period following the Effective Date the latest version of Enclave Products including the VAR branding as agreed in writing; and
  2. during the term of this agreement, such updates or new releases to Enclave Products as such updates or new release become generally available.
2. Enclave shall use commercially reasonable endeavours to make the Enclave Products available 24 hours a day, seven days a week, except for:
  1. Planned maintenance; and
  2. Unscheduled maintenance, and Enclave shall use reasonable endeavours to give the VAR reasonable notice of the same.
3. Enclave is entitled upon giving one months’ written notice to the VAR to vary Schedule 1 to exclude from this agreement one or more of Enclave Products as it thinks fit if for any reason the production of such Enclave Products has been permanently discontinued.
4. Enclave is entitled to make changes to the product which do not adversely affect either Enclave Products or Combined Products and shall give written notice of such changes to the VAR as soon as reasonably practicable.
Enclave’s Warranty
1. Enclave warrants that the Software and the Cloud Services will be provided in accordance with the Documentation, all Applicable Law and with due care and skill during the Subscription Term.
2. The warranty set out at Clause #6.1 shall not apply to the extent of any non-conformance which is caused by use of the Enclave Products contrary to Enclave’s instructions, or modification or alteration of the Enclave Products by any party other than Enclave or Enclave’s duly authorised contractors or agents. If the Enclave Products do not conform with the foregoing warranty, Enclave will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the VAR with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the VAR’s sole and exclusive remedy for any breach of the warranty set out in Clause #6.1.
3. Enclave:
  1. Does not warrant that:
    1. The VAR’s and or any customers use of the VAR Products, either independent or as part of the Combined Products will be uninterrupted or error free; or
    2. That the Enclave Products will meet the VAR’s or their customers’ requirements; or
    3. The Enclave Products will be free from Viruses.
4. Enclave warrants that is has and will maintain all necessary licenses, consents and permissions necessary for the performance of its obligations under this agreement.
5. Enclave undertakes:
  1. to provide such information and support as may be reasonably requested by the VAR to enable it properly and efficiently to discharge its duties under this agreement; and
  2. to approve or reject any promotional information or material submitted by the VAR within 28 days of receipt.
Prices and payment
1. The prices to be paid by the VAR to Enclave for the User Subscriptions to the Enclave Products are as shown in the Enclave Manufacturer’s Suggested Retail Price documentation on our website, and as amended by Enclave from time to time. The VAR shall pay Enclave for each User Subscription used, whether this is independently as an Enclave Product or where the Enclave Product is combined to create the Combined Product.
2. Enclave shall give the VAR 28 days’ notice of any changes in the prices of Enclave Products.
3. Any and all expenses, costs and charges incurred by the VAR in the performance of its obligations under this agreement shall be paid by the VAR unless Enclave has expressly agreed beforehand in writing to pay such expenses, costs and charges.
4. Enclave will invoice the VAR monthly in the amount shown by the report referred to in clause #4.6. above to be due for the month concerned.
5. The VAR shall pay the full amount invoiced to it by Enclave in pounds sterling within 30 days of the date of invoice.
6. All amounts due under this agreement shall be paid by the VAR to Enclave in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
7. As between Enclave and the VAR, the VAR 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 Enclave Products or Combined Products.
8. If the VAR fails to make any payment due to Enclave under this agreement by the due date for payment, then, without limiting Enclave’s remedies under clause #16 (Term and termination), the VAR shall pay interest on the overdue amount at the rate of 4% per annum above 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 VAR shall pay the interest together with the overdue amount.
Advertising and promotion

The VAR shall:
1. be responsible for the advertising and promotion of the Enclave Products and/or the Combined Products provided that the use by the VAR of any advertising materials and promotional literature containing the Trademarks or other references to Enclave Products shall be subject to the prior written consent of Enclave;
  1. observe all reasonable directions and instructions given to it by Enclave in relation to the promotion and advertisement of the Combined Products to the extent that such promotions or advertisements refer to Enclave Products or otherwise use the Trademarks, and shall not make any written statement as to the quality or manufacture of Enclave Products without the prior written approval of Enclave;
  2. conduct its business in a manner that reflects favourably at all times on Enclave and the good name, goodwill and reputation of Enclave and not enter into any contract or engage in any practice that is or may be detrimental to the interests of Enclave in Enclave Products; and
  3. avoid deceptive, misleading or unethical practices that are, or might be, detrimental to Enclave, Enclave 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 Enclave or Enclave Products.
Compliance with laws and regulations
1. The VAR shall be responsible for obtaining any import licences or permits necessary for the entry of Enclave Products and/or Combined Products into the Territory, or their delivery to the VAR, and the VAR 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 Enclave Products and/or Combined Products.
2. The VAR warrants to Enclave that it has informed Enclave of all Legislation affecting the manufacture and sale of Enclave Products which are in force in the Territory or any part of it (Local Regulations) at the date of this agreement.
3. Enclave in turn warrants to the VAR that Enclave Products comply with the Local Regulations in force at the date of this agreement.
4. The VAR shall give Enclave as much advance notice as reasonably possible of any prospective changes in the Local Regulations.
5. On receipt of notification from the VAR under #9.4, Enclave shall endeavour to ensure that Enclave Products comply with any change in the Local Regulations by the date of implementation of that change or as soon as is reasonably possible thereafter.
6. In performing its obligations under this agreement, the VAR shall comply with the Mandatory Policies.
Relevant Terms
1. The VAR shall:
  1. 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 (Relevant Requirements);
  2. not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
  3. comply with Enclave’s Ethics, Anti-bribery and Anti-corruption Policies as communicated from time to time, in each case as Enclave or the relevant industry body may update them from time to time (Relevant Policies).
  4. 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, to ensure compliance with the Relevant Requirements, the Relevant Policies and will enforce them where appropriate;
  5. promptly report to Enclave any request or demand for any undue financial or other advantage of any kind received by the VAR in connection with the performance of this agreement;
  6. immediately notify Enclave (in writing) if a foreign public official becomes an officer or employee of the VAR and/or acquires a direct or indirect interest in the VAR (and the VAR warrants that it has no foreign public officials as officers or employees and/or direct or indirect owners at the date of this agreement);
  7. within two months of the date of this agreement, and annually thereafter, certify to Enclave in writing signed by an officer of the VAR, compliance with this Relevant Terms by the VAR and all persons associated with it and all other persons for whom the VAR is responsible under #10.1.5. The VAR shall provide such supporting evidence of compliance as Enclave may reasonably request.
2. Without prejudice to #23.1 the VAR shall ensure that any person associated with the VAR 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 VAR defined by Relevant Terms. The VAR 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 Enclave for any breach by such persons of any of the Relevant Terms howsoever arising.
3. Breach of the Relevant Terms shall be deemed a material breach.
4. For the purpose of Relevant Terms, the meaning of adequate procedures and foreign public official and whether a person is associated with another person shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), sections 6(5) and (6) of that Act and section 8 of that Act respectively. For the purposes of Relevant Terms a person associated with the VAR includes but is not limited to any subcontractor of the VAR.
Intellectual Property Rights
1. Unless otherwise agreed between the parties, all Intellectual Property Rights in and to Enclave Products belong, and shall belong, to Enclave and/or its licensors.
2. The VAR shall, at the expense of Enclave, take all such steps as Enclave may reasonably require to assist Enclave in maintaining the validity and enforceability of the Intellectual Property Rights of Enclave during the term of this agreement.
3. Without prejudice to the right of the VAR or any third party to challenge the validity of any Intellectual Property Rights of Enclave, the VAR 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 Enclave 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. Enclave makes no representation or warranty as to the validity or enforceability of the Intellectual Property Rights in Enclave Products and the Trademarks nor as to whether the same infringes on any Intellectual Property Rights of third parties.
5. Enclave grants to the VAR a non-exclusive, revocable, personal licence (subject to the terms and conditions of this agreement and during its term and solely for the purposes of performing the VAR’s obligations under this agreement) to use the Trademarks on or in relation to the Combined Products and/or Enclave Products for the purpose of the promotion, advertisement and sale of the same.
6. The VAR shall not:
  1. copy Enclave Products or any part of any of them except to the extent and for the purposes expressly permitted by this agreement; or
  2. 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 Enclave Products provided for in #11.7.
7. The VAR acknowledges that it has received (whether as APIs (application programming interfaces) or otherwise) sufficient information to enable it to combine Enclave Products with the VAR Products and market the resulting Combined Products in the manner envisaged by this agreement.
8. The VAR shall ensure that each reference to, and use of, any of the Trademarks by the VAR is in a manner approved from time to time by Enclave and accompanied by an acknowledgement in a form approved by Enclave that the same is a trade mark (or registered trade mark) of Enclave.
9. The VAR shall not:
  1. use any of the Trademarks in any way which might prejudice their distinctiveness or validity or the goodwill of Enclave therein;
  2. use in relation to Enclave Products any trade marks other than the Trademarks without obtaining the prior written consent of Enclave; or
  3. use any trademarks or trade names so resembling any trade mark or trade names of Enclave as to be likely to cause confusion or deception.
10. 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 VAR shall have no rights in respect of any trade names or trademarks used by Enclave in relation to Enclave Products or their associated goodwill, and the VAR hereby acknowledges that all such rights and goodwill shall inure for the benefit of and are (and shall remain) vested in, Enclave.
11. At the request of Enclave, the VAR shall do or procure to be done (at Enclave’s reasonable cost) all such further acts and things (including the execution of documents) as Enclave shall reasonably require to give Enclave the full benefit of this agreement.
12. The VAR shall promptly give notice in writing to Enclave in the event that it becomes aware of:
  1. any infringement or suspected infringement of the Trademarks or any other Intellectual Property Rights in or relating to Enclave Products; and
  2. any claim that any Enclave Product or the manufacture, use, sale or other disposal of any Enclave Product, whether or not under the Trademarks, infringes the rights of any third party.
13. In the case of any matter falling within #11.12.2:
  1. Enclave shall, in its absolute discretion, determine what action if any shall be taken in respect of the matter; and
  2. Enclave shall have sole control over and shall conduct any consequent action as it shall deem necessary; and
  3. Enclave shall 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.
14. In the case of any matter falling within #11.12.2:
  1. Enclave and the VAR 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
  2. 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.
  3. In the defence or settlement of the claim, Enclave may obtain for the VAR the right to continue distributing Enclave Products in the manner contemplated by this agreement, replace or modify Enclave 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 VAR. Enclave shall not in any circumstances have any liability if the alleged infringement is based on:
    1. the VAR Products, whether in whole or in part;
    2. a modification of Enclave Products by anyone other than Enclave;
    3. the VAR’s marketing, advertising, distribution or use of Enclave Products in a manner contrary to the instructions given to the VAR by Enclave;
    4. the VAR’s marketing, advertising, distribution or use of Enclave Products after notice of the alleged or actual infringement from Enclave or any appropriate authority; or
    5. use or combination of Enclave Products with the VAR Products in circumstances where, but for such combination, no infringement would have occurred.
  4. The foregoing states the VAR’s sole and exclusive rights and remedies, and Enclave’s entire obligations and liability, in the case of any matter falling under #11.12.2.
15. 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.
Confidentiality
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:
  1. is or becomes publicly known through no act or omission of the receiving party; or
  2. was in the other party’s lawful possession prior to the disclosure; or
  3. is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
  4. is independently developed by the receiving party, which independent development can be shown by written evidence.
2. Subject to #12.4, 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.
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.
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 #12.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
5. This #12 (Confidentiality) shall survive termination of this agreement for any reason.
Protection and processing of personal data
1. For the purposes of this clause #13, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the UK GDPR.
2. Both parties will comply with all applicable requirements of Applicable Data Protection Laws. This clause #13 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under Applicable Data Protection Laws. Schedule 2 sets out the scope, nature and purpose of the processing by the VAR, the duration of the processing and the types of Personal Data and categories of Data Subject.
3. Without prejudice to the generality of 13.2, Enclave will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the VAR or lawful collection of the same by the VAR for the duration and purposes of this agreement.
4. Without prejudice to the generality of 13.2 the VAR shall, in relation to Personal Data processed in connection with the performance by the VAR of its obligations under this agreement:
  1. process that Personal Data only on the documented instructions of Enclave, unless the Supplier is required by Applicable Laws to otherwise process that Personal Data. Where the VAR is relying on Applicable Laws as the basis for processing Processor Data, the VAR shall notify Enclave of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the VAR from so notifying Enclave on important grounds of public interest. The VAR shall inform Enclave if, in the opinion of the VAR, the instructions of Enclave infringe Applicable Data Protection Legislation;
  2. implement the technical and organisational measures, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, which Enclave has reviewed and confirms are appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
  3. ensure that any personnel engaged and authorised by the VAR to process Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;
  4. assist Enclave insofar as this is possible (taking into account the nature of the processing and the information available to the VAR), and at Enclave’s cost and written request, in responding to any request from a data subject and in ensuring Enclave’s compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
  5. notify Enclave without undue delay on becoming aware of a personal data breach involving the Personal Data;
  6. at the written direction of Enclave, delete or return Personal Data and copies thereof to Enclave on termination of the agreement unless the VAR is required by Applicable Law to continue to process that Personal Data. For the purposes of this #13.4.6. Personal Data shall be considered deleted where it is put beyond further use by the VAR; and
  7. maintain records to demonstrate its compliance with this clause #13 (Protection and processing of personal data) and allow for reasonable audits by Enclave or Enclave’s designated auditor, for this purpose, on reasonable written notice.
5. Enclave hereby provides its prior, general authorisation for the VAR to:
  1. appoint processors to process the Personal Data, provided that the Supplier:
    1. shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on the Supplier in this clause #13 (Protection and processing of personal data);
    2. shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of the VAR; and
    3. shall inform Enclave of any intended changes concerning the addition or replacement of the processors, thereby giving Enclave the opportunity to object to such changes provided that if Enclave objects to the changes and cannot demonstrate, to the VAR’s reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Law, Enclave shall indemnify the VAR for any losses, damages, costs (including legal fees) and expenses suffered by the VAR in accommodating the objection.
  2. Transfer Personal Data outside of the UK as required for the Purpose, provided that the VAR shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, Enclave shall promptly comply with any reasonable request of the VAR, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the UK Information Commissioner from time to time (where the UK GDPR applies to the transfer).
Warranties
1. Each party represents, warrants and undertakes that:
  1. 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
  2. without affecting its other obligations under this agreement, it shall comply with all applicable Legislation in the performance of its obligations under this agreement.
2. Enclave warrants to the VAR that Enclave 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 documentation.
Limitation of liability
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.
2. Nothing in this agreement excludes the liability of Enclave:
  1. for death or personal injury caused by Enclave’s negligence; or
  2. for fraud or fraudulent misrepresentation.
3. Subject to #15.2 Enclave 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:
  1. loss of profits; or
  2. loss of business; or
  3. depletion of goodwill or similar losses; or
  4. loss of anticipated savings; or
  5. loss of goods; or
  6. loss of use; or
  7. loss or corruption of data or information; or
  8. any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
4. Enclave’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 VAR to Enclave under this agreement in the 12 months preceding the date on which the claim arose.
5. In the event of any breach of Enclave’s warranty in #14.2 (whether by reason of defective materials, production faults or otherwise) the VAR’s sole remedy and Enclave’s only obligation and liability to the VAR shall be for Enclave to:
  1. replace Enclave Product in question; or
  2. at Enclave’s option, repay any price paid for Enclave Product.
Term and termination
1. This agreement shall commence on the Effective Date. Unless terminated earlier in accordance with #16.2 or #16.3 or this #16.1, this agreement shall continue for 12 (twelve) months (Initial Term) when it shall terminate automatically without notice unless, no later than 3 (three) months before the end of the Initial Term (or any Extended Term agreed under this clause), the parties agree in writing that the term of the agreement shall be extended for 12 (twelve) months (Extended Term). Unless it is further extended under this clause or terminated earlier in accordance with this clause #16 (Term and termination), the agreement shall terminate automatically without notice at the end of an Extended Term.
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:
  1. the other party 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 30 days after being notified in writing to do so; or
  2. 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
  3. 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
  4. the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
  5. 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
  6. 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, (being a company, partnership or limited liability partnership); or
  7. the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver; or
  8. 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
  9. 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
  10. 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 #16.2.1 to #16.2.11 (inclusive); or
  11. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
3. Without prejudice to any other rights or remedies to which Enclave may be entitled, Enclave may terminate the agreement without liability to the VAR if:
  1. if the VAR commits a breach of its obligation in #9.6 and Relevant Terms;
  2. there is a change of control of the VAR; or
  3. the VAR purports to assign any of its rights or obligations under this agreement.
Effects of termination
1. On termination or expiry of this agreement for any reason:
  1. the VAR shall (at its sole cost) return (or at Enclave’s option, destroy) all media (subject to #17.1.2) on which Enclave Products are held and the VAR shall stop combining Enclave Products with the VAR Products;
  2. at Enclave’s option, the VAR shall be permitted for a period of 3 (three) months following termination of this agreement to sell and distribute any existing Combined Products as it may at the time have in store or under its control; thereafter, the terms of #17.1.1 shall apply;
  3. on the expiry of the 3 (three) month period under #17.1.2. or if Enclave exercises its right not to allow the VAR to continue distributing the Combined Products after termination or expiry of this agreement, the VAR shall promptly return to Enclave, or otherwise dispose of as Enclave may instruct, all samples, technical pamphlets, catalogues, advertising materials, specifications and other materials, documents or papers whatsoever sent to the VAR and relating to Enclave’s business (other than correspondence which has passed between the parties) which the VAR may have in its possession or under its control; and
  4. 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;
  5. subject to the foregoing provisions of this #17.1, all rights and licences of the VAR under this agreement shall terminate.
2. The termination of this agreement shall not of itself give rise to any liability on the part of Enclave to pay any compensation to the VAR for loss of profits or goodwill, to reimburse the VAR for any costs relating to or resulting from such termination, or for any other loss or damage.
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 VAR 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 six months, the party not affected may terminate this agreement by giving 30 days’ written notice to the other party.
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.
Severance
1. If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
2. If any provision or part-provision of this agreement is deemed deleted under #20.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
Entire agreement
1. This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
2. Each party acknowledges that in entering into this agreement it does not rely on, and 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.
3. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this agreement.
4. Nothing in this clause shall limit or exclude any liability for fraud.
Variation

No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
Assignment
1. The VAR shall not, without the prior written consent of Enclave, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
2. Enclave 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.
No partnership or agency
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 #2 (Appointment).
2. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
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.
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.
Notices
1. Any notice or other communication given to a party under or in connection with this contract shall be in writing and shall be:
  1. delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
  2. sent by email to the VAR tom.davis@enclave.io
  3. sent by email to Enclave to tom.davis@enclave.io
2. Any notice or communication shall be deemed to have been received:
  1. if delivered by hand, at the time the notice is left at the proper address;
  2. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting.
  3. if sent by email, at the time of transmission unless that it outside of Business Hours, in which case at 9.00 am on the next Business Day after transmission.
3. 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.
Governing law

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.
Jurisdiction

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 — Products

The following is a comprehensive list of SaaS products that the VAR is authorized to resell under this VAR Agreement:

Zero Trust Network Access Solutions:

Product	Description
Enclave	A modern virtual private network (VPN) technology that provides secure, encrypted, and easy-to-use private networks based on Zero Trust principles. It is designed to create overlay networks that allow devices and computers to communicate with each other as if they were connected to the same local area network (LAN), regardless of their physical location or network configurations.
Enclave Mobile	Use Enclave on Android and iOS mobile devices.
Enclave Gateway	Secure access to peripheral, legacy and IoT devices. Enclave Gateway allows users to route traffic from systems running Enclave to systems and devices not running Enclave (like RDS databases, webcams, printers, SaaS services and IoT sensors) in subnets the Enclave Gateway can reach.
Enclave Managed Gateway	Enclave host and operate and manage instances of Enclave Gateway.

Schedule 2 — EULA

Please find the Enclave End-User License Agreement located here https://enclave.io/eula

Schedule 3 — Trademarks

All trademarks, service marks, and logos listed in the following table are the property of Enclave Networks Limited.

Trademark	Registration Number	Registration Date	Jurisdiction
	UK00003853356	25 November 2022	United Kingdom
	UK00003853352	25 November 2022	United Kingdom

Schedule 4 — Mandatory Policies

Our policies are designed to be of benefit our valued VAR partners. The following referenced policies extend this VAR agreement to provide wider context, and ensure consistency and compliance throughout our partnership. By adhering to security, privacy, and ethical standards, the VAR can safeguard their reputation and demonstrate responsible business conduct. Below are the key policies that contribute to a successful and compliant collaboration between our organizations.

Ethics Policy: https://enclave.io/policy/ethics/
Anti-Bribery Policy: https://enclave.io/policy/anti-bribery/
Anti-Slavery Policy: https://enclave.io/policy/anti-slavery/

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Relevant Terms

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Confidentiality

Protection and processing of personal data

Warranties

Limitation of liability

Term and termination

Effects of termination

Force majeure

Waiver

Severance

Entire agreement

Variation

Assignment

No partnership or agency

Third party rights

Rights and remedies

Notices

Governing law

Jurisdiction

Schedule 1 — Products

Schedule 2 — EULA

Schedule 3 — Trademarks

Schedule 4 — Mandatory Policies

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