Partner Agreement Terms 1.3

16th of March, 2023

Partnering with Sana Commerce

These Partner Agreement Terms (the “Agreement”) form an integral part of the Partner Model (the “Partner Model”) as signed by the partner (the “Partner”) and Sana Software USA Inc. (“Sana”) and are applicable to the Partner Model and in general the relationship between Partner and Sana.

Article 1. Appointment

  1. Sana hereby appoints the Partner as a non-exclusive “Ambassador Partner” or “Selling Partner”, as agreed upon by the parties in the Partner Model, which appointment Partner hereby accepts. As a Ambassador Partner, Partner will generate customer referrals for the direct sale by Sana to such potential customers of Sana Software, products and services under the Sana brand, all in accordance with the terms and conditions of the Agreement and the Partner Model. For the purpose of the Agreement and the Partner Model, “Software” means the ‘Sana Commerce software’, and all of its current and future components and add-ons, unless stated otherwise in writing by Sana.
  2. The Partner is an independent contractor and acts in its own name, at its own expense and at its own risk, in particular when it comes to, if applicable,  the implementation and consultancy concerning the products and services of Sana. The Partner is not allowed to act for, or on behalf of Sana, or to enter into any contract, make any warranty or guarantee, or incur any obligations or liability in the name of Sana, or to commit Sana in any other way whatsoever, unless specifically set forth in the Agreement, Partner Model or in a separate writing by Sana.
  3. The commission set forth in the Partner Model represents the full and entire compensation due to the Partner in consideration of the performance of its obligations under the Agreement and Partner Model.
  4. The Partner is not allowed to delegate any of its rights or obligations, or appoint sub-partners, without the prior approval in writing of Sana. Sana shall at all times be authorized to withhold approval at its sole discretion.
  5. Sana may appoint the Partner as the registered ERP partner of customers, at its sole discretion, and Sana will notify Partner in writing if it has appointed Partner as the ERP partner for a specific customer (in such case the Partner is referred to as the “Partner of Record”, and the specific customer as the “Customer”). The Partner is not allowed to contact customers for the purpose of this Agreement and the Partner Model if the Partner is not the Partner of Record, unless prior written approval of Sana has been obtained. In case the Partner is not  the Partner of Record of a certain customer, Sana may contact the Partner of Record and it will be at the discretion of that partner whether to follow up with such customer or to authorize the Partner in writing to do so.

Article 2. Term and Termination

  1. The parties have entered into the Agreement for an indefinite period of time commencing on the date of signature. Following termination of the Agreement the provisions of a permanent nature shall fully remain in effect, including but not limited to the confidentiality clauses. The Agreement can only be terminated in one of the following cases:
    1. Parties may terminate the Agreement with or without cause by giving the other party written notice of termination at least three months in advance;
    2. Parties may terminate the Agreement immediately upon written notice, when (i) the other party is placed under moratorium or applies for a moratorium, (ii) the other Party is declared bankrupted, or (iii) the other party has been dissolved or its business has been discontinued or wound up;
    3. A party is entitled to terminate the Agreement immediately upon written notice, when the other party violates Article 9 (Proprietary Rights), and/or Article 10 (Confidentiality) of the Agreement, or when parties disagree on amendments of the Partner Model.

Article 3. Amendment

  1. No amendment to the Partner Model will be effective unless it has been set in writing and signed by both parties.
  2. In addition to and not in limitation of Paragraph 1 of this Article, Sana is allowed to amend this Agreement annually upon written notice.

Article 4. Obligations of the Partner

  1. The obligations of the Partner are set forth in the Agreement and the Partner Model. The Partner shall cooperate with any promotional, marketing, sales, and advertising programs of Sana, including, but not limited to any sales directions by Sana.
  2. The Partner is not allowed to sell or lease software and/or documentation (or any part thereof) that is based on, or derived from (parts of) the products and services of Sana. The Partner shall not disclose, (sub-) license, encumber or otherwise transfer the same to third parties, other than allowed on account of the Agreement and Partner Model.

Article 5. Obligations of Sana

  1. The obligations of Sana are defined in this Agreement and the Partner Model.
  2. Sana promptly delivers to the Customer the Software and the license key to be able to use the Software, once requested and paid for by Customer.
  3. Sana delivers new Software, including but not limited to ERP components, to the Partner’s customers who pay the yearly subscription.
  4. Sana shall provide product support to the Customer, as described in support.sana-commerce.com/sla.

Article 6. Licenses

  1. Sana hereby grants the Partner an immediately revocable, non-exclusive demo license with regard to the products and services of Sana. This means that the Partner is authorised to demonstrate and/or test the Software, Sana products and services exclusively for the benefit of implementations for Customers.
  2. In order to protect the intellectual property rights of Sana, a license agreement must be executed by the Customer’s end user (the “End User”) in which the terms and conditions associated with the use of the Software by the End User are established.
  3. Partner will assist as required or requested by Sana with the execution process of all legal documents between Sana and a Customer. Sana has the right to withhold the release of Software until Sana has received the license agreement properly executed by the Customer.
  4. Sana is entitled to amend the EULA , upon written notice.

Article 7. Prices and fees

  1. The Sana pricing for Customers  depends on the desired services packages, ranging from “Essential” to “Pro” to “Advanced”, as set forth in the Partner Model, as well as the Customer’s gross merchandise value.
  2. The Partner may only use l pricing as provided in Exhibit A, which exhibit may be amended from time to time by Sana at its sole discretion.
  3. Sana is entitled to adjust the prices, margins and fees, and will inform Partner in writing about price adjustments at least three months in advance.
  4. Sana has the right to reclaim paid fees in the event a Customer leaves Sana within 12 months of the start date of the license agreement.

Article 8. Proprietary Rights

  1. It is understood and agreed that all intellectual property rights, including without limitation, all confidential information, customer lists, services, hardware, software, documentation, internet web sites, technology, ideas and expressions are and shall remain the exclusive property of the owner and nothing in the Agreement shall convey any license, title, or ownership interest therein. It is further understood and agreed that all trademarks, service marks, trade names, or logos are the exclusive property of the owner and no right, title, interest or license to such is granted under the Agreement.
  2. During the duration of the Agreement, the Partner shall be entitled to use the logos, trade names and trademarks of Sana, however merely in connection with the objective of referring customers to the products and services.
  3. The Partner is not allowed to copy, (re-)use, distribute or reverse-engineer the Software, or parts of the Software.

Article 9. Confidentiality

  1. Information is confidential either if it is expressly labelled as ‘Confidential’ or in case a reasonable person would consider confidential based on the circumstances or the nature of the information. Confidential information shall not include any such information which (i) was in the public domain prior to the execution of the Agreement, (ii) becomes part of the public domain through no wrongful action by parties, or (iii) disclosure is requested or required by law.
  2. During the duration and following expiration of the Agreement the parties shall hold all information with regard to the other party brought to its knowledge on account of this Agreement to be confidential.
  3. The parties, and the members of staff of the parties, shall exclusively use confidential information obtained or rendered available by the other party in accordance with the provisions set out in the Agreement and the Partner Model.
  4. Without the prior approval in writing of the other party, the parties shall neither proceed with the disclosure, publication or any other form of distribution nor allow disclosure, publication or any other form of distribution of confidential information of the other party. The parties, and the members of staff of the parties, shall moreover take all required precautionary measures in order to protect the same from unauthorized use and disclosure.

Article 10. Restrictive Covenant

  1. The Partner cannot use any confidential information and/or proprietary rights of Sana for the purpose of developing or selling its own competing software or products, or for the purpose of promoting or selling competing software or products of third parties.
  2. Article 11.1 shall remain applicable for a period of 5 years after the termination of this Agreement.

Article 11. Indemnity

  1. Each party shall indemnify, defend, and hold the other harmless for any losses, claims, damages, awards, penalties, or injuries incurred by any third party, provided that the indemnifying party is promptly notified of any such claims. The indemnifying party shall have the sole right to defend such claims at its own expense. The other party shall provide, at the indemnifying party’s expense, such assistance in investigating and defending such claims as the indemnifying party may reasonably request. This indemnity obligation shall survive the termination of the Agreement.

Article 12. Applicable Terms and Conditions

  1. General purchase terms and conditions or other general terms and conditions of the Partner or any other parties, are not applicable and are hereby expressly rejected by Sana.

Article 13. Right of audit

  1. Partner shall during regular business hours, upon at least five (5) days’ prior written notice, allow Sana, or Sana’s representative, to audit Partner’s books and records which relate solely to the performance under the Agreement or the Partner Model. If an audit reveals a material non-performance by Partner, all costs associated with any such audit shall be borne by Partner, and the non-performance must be cured within five (5) days of written notice by Sana.

Article 14. Liability

  1. If one of the parties fails to comply with its obligations under the Agreement or the Partner Model, it shall be liable to the other party for compensation of direct damages incurred and yet to be incurred by the party which is suffering the loss. The total liability on account of an attributable failure to comply with the present Agreement is limited to the amounts received by Sana for licenses and other services with a maximum amount of $ 100.000,- excluding taxes (in words: one hundred thousand Dollars) per year for direct damages only. Liability for indirect and consequential damages are explicitly excluded.
  2. If either of the parties breaches its obligations under the Agreement or the Partner Model, the other party may give the defaulting party written notice specifying the nature of the breach and requiring the breach to be remedied (i) in case of a monetary breach, within fifteen (15) days after the date of the written notice, or (ii) in case of a non-monetary breach, within thirty (30) days after the date of the written notice of the breach.  If the breach is not remedied during the aforementioned cure period, the non-defaulting party shall be entitled to terminate the Agreement with immediate effect.

Article 15. Consequences of termination of the Agreement

Once the Agreement has terminated:

  1. The Partner must immediately discontinue the use of brands, trade names and any works and materials provided by, and/or owned by Sana or its licensors;
  2. The Partner will forthwith return all originals and copies of all documentation, written confidential information, manuals, advertising material and other materials supplied to by Sana, to Sana;
  3. The Partner must from the termination date forwards. discontinue presenting itself as authorised partner. The Partner and Sana will make a separate arrangement regarding the supply of continuing maintenance and support for the customers / End Users of the Software.
  4. Sana will immediately discontinue the use of brands and trade names belonging to the Partner or licensed to the Partner;
  5. Sana will  forthwith return all originals and copies of all documentation, written confidential information, manuals, advertising material and other materials supplied to Sana, to the Partner.

Article 16. Applicable law and disputes

  1. This agreement shall be governed by the laws of the state of New York. Each party hereby submits themselves to the jurisdiction and venue of any appropriate court in the state of New York to resolve any and all disputes under this Agreement.
  2. If one party considers that there is a dispute, that party will inform the other party in writing of the dispute. Parties will jointly search for a mutually agreed solution before one party will take any legal action.

Article 17. Miscellaneous provisions

  1. During the term of the Agreement and at any time thereafter, Partner agrees to refrain from disparaging, or otherwise portraying in a negative manner, Sana, its officers, directors, employees, and the Software and other Sana products and services.
  2. Except for payment obligations, neither party shall be liable for any nonperformance, delay, error, or other loss caused by any event or conditions that are beyond their reasonable control, including, without limitation, any nonperformance, delay, error, or other loss caused by any Act of God, war, strike or other labor unrest, civil disturbance, or other interruption in the ability of such party to perform under the Agreement caused by anything beyond the reasonable control of the party, including but not limited to COVID-19 related causes.
  3. Partner acknowledges that the goodwill associated with its services for Sana exclusively belongs to Sana.
  4. The rights and obligations deriving from the Agreement cannot, without prejudice to the approval in writing of Sana, be transferred to third parties, this includes, but not limited to, a takeover of the Partner by a third party.
  5. All that which the parties have agreed upon is established in writing in the Agreement, Partner Model and Terms of Service (Can be found here: www.sana-commerce.com/terms-of-service-us/).
  6. In the event of any breach of Articles 4, 6, 9, 10, 11 and /or 16 of these Terms, Sana may suffer irreparable harm and have no adequate remedy at law. In such event or the threat of any such event, Sana shall be entitled (in addition to any and all other remedies) to injunctive relief, specific performance and other equitable remedies without proof of monetary damages or the inadequacy of other remedies
  7. All written and verbal agreements up to date in place by and between the parties explicitly expire by signing the Agreement.
  8. If there is a dispute between the Agreement and the Partner Model, the terms of the Partner Model will prevail.
  9. When terms are defined in the Partner Model the same definitions apply in the Agreement.
  10. The standard language used within any project is English. Otherwise, all parties must mutually agree upon using a different language.