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NDA

Non-Disclosure Agreement — Reseller Program

This Confidentiality Agreement (“CA”) is entered into between CALL DESK LIMITED T/A Xinix and the reseller / prospective reseller identified below (the “Reseller”), collectively the “Parties”.

Purpose

The Purpose of this Confidentiality Agreement is to ensure that all confidential aspects of the partnership between CALL DESK LIMITED T/A Xinix and the Reseller remain confidential as between the Parties.

The Parties consent to being bound by the terms set out in this Agreement.

Terms

  1. 1.1 (a) “Affiliate” means a subsidiary or holding company (or subsidiary of such holding company) of a party, each having the meaning given in s.1159 Companies Act 2006 (as amended); (b) “Confidential Information” means all information concerning the business, products, services, systems, procedures and records (in whatever form) of a party and its Affiliates and its relationships with its customers and suppliers. This definition includes works in whole or in part, and all copies and derivative works generated from such information; and; (c) “Purpose” has the meaning given in the Purpose section of this NDA.
  2. 1.2 This CA commences on the date of last signature and shall remain in force for a period of five years from that date.
  3. 1.3 Each party agrees to treat all Confidential Information received by it in confidence and to only use it for the Purpose.
  4. 1.4 Clause 1.3 does not apply where: (a) the disclosing party has given its prior written consent that it shall not apply; (b) disclosures are to a party’s or its Affiliates’ employees, directors, agents, subcontractors, auditors or professional advisers who reasonably require the Confidential Information for the Purpose; (c) disclosures are required by law or by or to any court of competent jurisdiction or by or to a regulatory body, stock exchange, competition authority or similar entity having jurisdiction over the relevant party and (unless prohibited) such party will notify the other of such disclosure; (d) disclosures to a party’s Affiliates; (e) information independently generated without use of the Confidential Information by the receiving party; (f) information already in the public domain otherwise than as a consequence of a breach of this CA.
  5. 1.5 Any party disclosing Confidential Information to anyone permitted in clause 1.4(a) and (d) shall ensure that each recipient gives a confidentiality undertaking which is at least as strict as the provisions of this CA.
  6. 1.6 On termination of this CA, or at any time on receipt of a written request from the other party, each party shall destroy or return (or procure the destruction or return of) Confidential Information and certify in writing to the other within seven days of termination or request that such Confidential Information has been destroyed or returned.
  7. 1.7 Both parties will comply with their respective obligations under applicable data protection and privacy laws. Each party agrees only to transfer or further disclose personal information in accordance with applicable data protection principles from time to time.
  8. 1.8 Neither party shall acquire any right, title or licence relating to Confidential Information of the other party. Neither party accepts any responsibility for, nor makes any representations or warranties, express or implied, with respect to the accuracy, adequacy or completeness of any Confidential Information or will be liable to the other for any loss resulting from the other’s use of the Confidential Information.
  9. 1.9 The parties acknowledge that in the event of unauthorised disclosure, damages incurred by the non-disclosing party may be difficult or impossible to ascertain and that such non-disclosing party may seek injunctive relief as well as monetary damages against the breaching party.
  10. 1.10 The receiving party shall hold the disclosing party harmless against and covenants to pay to the disclosing party on demand for any loss or damage, costs and expenses, including reasonable legal fees and costs of litigation, which the disclosing party may sustain or incur as a result of any breach of this CA by the receiving party and anyone to whom it has disclosed Confidential Information.
  11. 1.11 Each party agrees not to issue any press release or other publicity regarding the relationship between the parties, including the existence or terms of the reseller relationship, without the prior written consent of the other.
  12. 1.12 No variation of this CA is valid unless it is in writing and signed by or on behalf of each party to this CA.
  13. 1.13 Save for Xinix World’s Affiliates who shall be able to enforce any rights under this CA, no person who is not a party to this CA may enforce any rights under it whether under the Contracts (Rights of Third Parties) Act 1999 (as amended) or otherwise.
  14. 1.14 Each party’s address for the receipt of notices and invoices is as set out in the Party Details section of this CA. Any notice given in connection with this CA must be served in writing by post or courier with proof of receipt and is deemed served 48 hours after posting.
  15. 1.15 This CA 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.
  16. 1.16 The parties agree that no representations, warranties, undertakings or promises have been expressly or impliedly given in respect of the subject matter of this CA other than those that are set out in it.
  17. 1.17 Neither party shall have any remedy in respect of any statement not set out in this CA upon which it relied in entering into this CA, unless the statement was made fraudulently.
  18. 1.18 If any provision of this CA (whether in part or in whole) is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions of this CA will remain in full force and effect. If any illegal, invalid or unenforceable provision would be legal, valid or enforceable if some part of it were deleted, such provision shall apply with the minimum modification(s) necessary to make it legal, valid or enforceable.
  19. 1.19 The failure to exercise or delay in exercising a right or remedy provided by this CA or by law does not constitute a waiver of any of them or any other rights or remedies. A waiver of any breach of or default under this CA does not constitute a waiver of any other breach or default and shall not affect the other terms of this CA. Save where set out in this CA, only a written notice executed by a duly authorised director of the waiving party expressly waiving compliance, may waive any terms of this CA.
  20. 1.20 The parties acknowledge that they are independent from each other. Nothing in this CA is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent, employer or employee of the other, or authorise either party to make or enter into any commitments for or on behalf of the other.
  21. 1.21 This CA may be executed in any number of counterparts and by the parties to it on separate counterparts, each of which shall be an original, but all of which together shall constitute one and the same instrument.
  22. 1.22 This CA, and any dispute arising out of or in relation to it, shall be governed by the laws of England and Wales and shall be the subject of the exclusive jurisdiction of the courts of England and Wales.

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