Master Partner Agreement BPO
The most current version of this Master Partner Agreement BPO is posted at: commercetools.com/bpo (the “Site”).
commercetools is a provider of e-commerce software-as-a-service products.
The Partner may provide implementation services related to the commercetools Service to its End Customer. In addition, the Partner will be the technical contact for commercetools on behalf of End Customer.
commercetools agrees that the Partner is permitted to resell and make available the commercetools Service to End Customer, subject to the Partner ensuring the pass through to the End Customer of the End Customer terms and conditions set out at: www.commercetools.com/end-customer-terms-and-conditions.
This online Reseller Agreement (“Agreement”) is entered into between commercetools and the Reseller and governs the Reseller’s marketing and distribution of the commercetools e-commerce software-as-a-service products to End Customers upon the execution of an Order Form with commercetools.
“commercetools” and “End Customer” refers to the respective entities as defined in the Order Form.
All other capitalized terms are defined at the end of this Agreement.
Section 1 - The Service
1.1. Use of the Service. Subject to Partner’s compliance with the terms and conditions of this Agreement, the Order Form and the Documentation, commercetools grants to Partner during the Term the right to (i) re-sell the Service to its End Customers pursuant to the applicable Order Form; (ii) allow its End Customers to access and use the Service for their own internal business purposes; and (iii) use the Documentation in support of such End Customer’s access and/or use of the Service. For clarity, Partner is not granted the right to: (a) access or use the Service for its own internal purposes, or (b) provide any other third party with access or use of the Service.
1.2. Customer Users. The employees and contractors of Partner and End Customer may access and use the Service on End Customer’s behalf (each, a “User”). Partner is responsible for its Users’ use of the Service and compliance with this Agreement.
1.3. Service Level Availability. commercetools will make the Service available in accordance with the Service Level Availability commitments set out in the Documentation.
1.4. Support. commercetools provides customer support to the Partner in accordance with the Support commitments set out in the Documentation.
1.5 Updates. commercetools shall make commercially reasonable efforts to continuously further develop the Service and, in the course thereof, make innovations and feature enhancements available to the Partner and End Customer. New releases of and updates to the Service will be delivered as and when available.
1.6 Pre-Release. As part of the continuous development of the Service, commercetools may provide beta versions of further functionalities from time to time. Partner and End Customer can decide at their own discretion whether to test such beta versions. Beta versions are generally provided for testing purposes and not for production purposes. The Service Level Availability and Support offerings do not apply to beta versions and they are not considered part of the Service. If used by End Customer in production, all restrictions, limitations and End Customer obligations under the Agreement apply.
1.7. Restrictions. Partner will not (and will not permit anyone else to) do any of the following: (a) use the Service to develop a similar or competing product or service; (b) reverse engineer, decompile, disassemble, or seek to access the source code of the Service or any related features; (c) modify or create derivative works of the Service or copy any element of or related features with the Service (other than as authorized in the Documentation); (d) perform any security integrity review, penetration test, denial of service simulation, or vulnerability scan without prior consent of commercetools; (e) provide access to or sub-license the Service to a third party other than as authorized by commercetools; or (f) send any Prohibited Data to the Service.
1.8. Additional Tools. commercetools provides Partner at no extra charge access to its Merchant Center (a user interface for API-Services as a hosted service) and certain SDKs (software development kits). The Merchant Center and the SDKs are made available as set out in the Documentation.
Section 2 - Customer Data; Privacy; Security
2.1. Customer Data. Partner selects, on behalf of the End Customer, in the Order Form the data region where the Service will be hosted. Partner represents and warrants to commercetools that it has all necessary rights, consents, and permissions to use and submit Customer Data to the Service, and will not violate or infringe any applicable laws or third-party rights (including intellectual property, publicity, or privacy rights).
2.2. Data Security Commitments. commercetools uses industry-standard administrative, technical, physical, and organizational measures, as described in the Data Processing Agreement (Schedule 1) and Documentation, designed to protect Customer Data for all of commercetools customers across the commercetools multi-tenant architecture. The Partner shall, without undue delay, inform commercetools of any unauthorized use or breach of security it becomes aware of, or which is affecting the integrity of the Service.
2.3. Customer Data Export; Back-Ups. At any time during the Term, Partner may export Customer Data in supported formats. commercetools maintains regular back-ups of the Service as set out in the Documentation, for the safety, continuity, and integrity of the Service. Partner is responsible for its own back-ups to meet its regulatory and internal requirements (such as archiving).
2.4. Obligations. Partner is responsible for Customer Data, including its content and accuracy. Partner agrees that its use of the Service and related features will comply with the Documentation.
2.5. Suspension. commercetools may suspend access to the Service and related services (and the relevant fees for the Service will continue to apply during such period) if: (a) Partner or End Customer breaches Section 1.7 (Restrictions); (b) Partner has not paid applicable fees when due after commercetools gives Customer a 30 days’ notice of failure to pay; or (c) there is a risk of harm to other commercetools customers or the security, availability, or integrity of the Service due to Partner or End Customer’s use of the Service. Where practicable, commercetools will use reasonable efforts to provide prior notice of any suspension. Once the issue requiring suspension is resolved, without limiting any commercetools remedies, commercetools will promptly restore access to the Service in accordance with this Agreement.
2.6. Systems Operations Data. In order to provide its customers with the benefits of a multi-tenant cloud offering, commercetools may collect and process utilization statistics and other technical data (e.g. page load data) regarding use, configuration, and deployment of the Service to operate, manage, improve, instrument, benchmark, and support the Service; provided, commercetools will not disclose any information derived from such data if doing so would make it possible for a third party to identify Partner or End Customer or any individual natural person.
2.7. Data Privacy. commercetools shall implement and maintain appropriate technical and organizational measures to protect any personal data processed by commercetools as part of the Service as described in the Data Processing Agreement as set out at https://commercetools.com/dpa. References to “Customer” in the Data Processing Agreement shall be interpreted to mean Partner.
Section 3 - Commercial Terms
3.1. Fees.
(a) The fees for the use of the Service are agreed upon in the Order Form and, unless otherwise agreed there, are invoiced annually in advance.
(b) All fees are exclusive of all sales, use, value-added, withholding, duties, goods and services, and/or any other taxes or duties.
(c) All payments are due 30 days after receipt of a duly issued invoice. Partner must provide commercetools with written notification regarding any disputed fees within 30 days of the receipt of the applicable invoice. If written notification is not received by commercetools within such a 30 day period, the invoice shall be deemed accepted by Partner and Customer shall have waived the right to dispute such amounts. Non-payment by the End Customer will not relieve Partner of its obligation to pay fees to commercetools as described in this Section 3.
(d) In the event of delay in payment of undisputed fees following a written reminder from commercetools after the due date, commercetools may demand interest at the rate of 1.5% of the outstanding balance per month or the maximum rate permitted by law, whichever is lower.
(e) In the event of delay in payment of undisputed fees following a written reminder from commercetools after the due date, commercetools may suspend the Service in accordance with Sec. 2.5.(b) until the outstanding amounts have been fully settled. commercetools shall inform the Partner in writing of the intended suspension of services at least seven (7) days before the planned suspension. If Partner still fails to cure the breach of the payment obligation, commercetools reserves the right to terminate in accordance with section 9.2.
3.2. Affiliate Orders. An Affiliate may enter into their own Order Form(s) with commercetools. This creates a separate agreement between the Affiliate and commercetools incorporating this Agreement with the Affiliate treated as “Partner”. Neither Partner nor any Affiliate has any rights under the other’s agreement with commercetools, and breach or termination of any such agreement is not breach or termination under any other.
Section 4 - Warranties
4.1. Each party represents and warrants to the other that (a) it has full corporate right and authority to enter into and perform this Agreement and (b) it shall comply with all applicable laws and regulations in the performance of its obligations under this Agreement.
4.2. commercetools represents and warrants that its provision of the Service complies with applicable law.
4.3. commercetools warrants to Partner that the Service will perform materially as described in the Documentation. If commercetools breaches this warranty and Partner makes a reasonably detailed warranty claim within 30 days of discovering the issue, then commercetools will use reasonable efforts to correct the non-conformity. If commercetools cannot correct the non-conforming Service, either party may terminate the applicable Service from the affected Order Form, in which case commercetools will refund to Partner any such pre-paid, unused fees for the terminated portion of the Term. These procedures are Partner’s sole and exclusive remedy and commercetools’s entire liability for breach of this Section 4.3. This warranty does not apply to issues caused by misuse or unauthorized modifications or to services provided free of charge.
4.4. Disclaimers. Except as stated in this section, commercetools provides the Service on an “AS-IS” basis. To the fullest extent permitted by law, commercetools disclaims, and this Agreement excludes, any implied or statutory warranty, including any warranty of title, non-infringement, merchantability, or fitness for a particular purpose.
Section 5 – Confidentiality
5.1. Confidential Information. For the purposes of this Agreement, the parties define “Confidential Information” to mean any of the information disclosed under this Agreement that is designated by the disclosing party as proprietary or confidential, or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. commercetools’ Confidential Information includes the terms and conditions of this Agreement and any technical, pricing, or performance information about the Service or related services.
5.2. Obligations. As receiving party, each party will (a) hold in confidence and not disclose Confidential Information to third parties except as permitted in this Agreement, and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. The receiving party may disclose Confidential Information to its employees, agents, End Customer, contractors, subcontractors, and other representatives having a legitimate need to know such Confidential Information, provided the receiving party remains responsible for their compliance with this Section 5 (Confidentiality) and such parties are bound to confidentiality obligations no less protective than this Section 5 (Confidentiality).
5.3. Exclusions. These confidentiality obligations do not apply to information that the receiving party can document: (a) is or becomes public knowledge through no fault of the receiving party; (b) it rightfully knew or possessed prior to receipt under this Agreement; (c) it rightfully received from a third party without breach of confidentiality obligations; or (d) it independently developed without using the disclosing party’s Confidential Information. The receiving party may disclose Confidential Information if required by law, subpoena, or court order, provided (if permitted by law) it notifies the disclosing party in advance and cooperates in any effort to obtain confidential treatment.
5.4. Remedies. Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone may be an insufficient remedy. Each party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section 5 (Confidentiality).
Section 6 - Ownership
Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except for commercetools’ use rights in this Agreement, as between the parties, Partner and End Customer retain all intellectual property and other rights in Customer Data. Except for Partner’s use rights in this Agreement, commercetools and its licensors retain all intellectual property and other rights in the Service, the Documentation, and related commercetools technology, services, templates, formats, and dashboards, including any modifications or improvements to these items made by commercetools. If Partner provides commercetools with feedback or suggestions regarding the Service or other commercetools offerings, commercetools may use the feedback or suggestions without restriction.
Section 7 - Limitations of Liability
7.1. To the maximum extent permitted by applicable law and notwithstanding the failure of any remedy to fulfill its essential purpose, in no event shall either party be liable for any indirect, special, punitive, or consequential damages, including without limitation loss of profits, arising from, or related to this Agreement regardless of the form of action even if the party was informed of the possibility of such damages. Subject to section 7.2, each party’s total liability in connection with any and all causes of action and/or any and all theories of liability will be and are hereby limited to and will not exceed the fees paid or payable to commercetools under this Agreement and affected Order Form during the 24 month period immediately preceding the event giving rise to the particular claim or liability.
7.2. Nothing in this Agreement limits either party’s liability for: (i) fraud or fraudulent misrepresentation; (ii) death or bodily injury caused by negligence, gross negligence, or intentional misconduct; (iii) Customer’s payment obligations; (iv) a party’s indemnity obligations; or (v) any liability that cannot legally be limited.
Section 8 - Indemnification
8.1. Indemnification by commercetools. commercetools will defend Partner from and against any third-party claim to the extent alleging that the Service, when used by Partner as authorized, infringes a third-party’s patent, copyright, or trademark. commercetools will hold harmless and indemnify Partner against any damages or costs awarded against Partner (including reasonable attorneys’ fees) or agreed in settlement by commercetools resulting from the claim.
8.2. Indemnification by Customer. Partner will defend commercetools from and against any third-party claim to the extent alleging that the Customer Data or the combination of Customer Data with other applications, content, or processes, infringes a third party’s privacy or intellectual property rights; or to the extent related to or arising from Partner’s breach or alleged breach of Section 1.7 (Restrictions). Partner will hold harmless and indemnify commercetools against any damages or costs awarded against commercetools (including reasonable attorneys’ fees) or agreed in settlement by Partner resulting from the claim.
8.3. Procedures. The indemnifying party’s obligations in this Section 8 (Indemnification) are subject to receiving: (a) prompt written notice of the claim; (b) the exclusive right to control and direct the investigation, defense, and settlement of the claim; and (c) all reasonably necessary cooperation of the indemnified party, at the indemnifying party’s expense for reasonable out-of-pocket costs. The indemnifying party may not settle any claim without the indemnified party’s prior written consent if settlement would require the indemnified party to admit fault or take or refrain from taking any action (other than relating to use of the Service, when commercetools is the indemnifying party). The indemnified party may participate in a claim with its own counsel at its own expense.
8.4. Mitigation and Exclusions. In response to an actual or potential infringement claim, if required by settlement or injunction or as commercetools determines necessary to avoid material liability, commercetools may at its option: (a) procure rights for Partner continued use of the Service; (b) replace or modify the alleged infringing portion of the Service to avoid infringement with substantially similar functionality; or (c) terminate the applicable Service in the affected Order Form and refund any pre-paid, unused fees for the terminated portion of the Term. commercetools’ obligations in this Section 8 (Indemnification) do not apply: (1) to infringement resulting from Partner’s modification of the Service or use of the Service in combination with items not provided by commercetools; (2) to unauthorized use of the Service; (3) to infringement resulting from compliance by commercetools with Partner designs, plans, specifications or instructions; or (4) if Partner settles or makes any admissions about a claim without commercetools’s prior written consent. This Section 8 (Indemnification) sets out each party’s sole and exclusive remedy and a party’s entire liability regarding infringement of third-party intellectual property rights.
Section 9 - Term and Termination
9.1. Term. This Agreement shall commence on the Effective Date and continue in force until terminated or upon expiration of all Order Forms.
9.2. Either party may terminate this Agreement (including all Order Forms) by notice if the other party: (a) fails to cure a material breach of this Agreement (including a failure to pay fees) within 30 days after written notice; (b) ceases operation without a successor; or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within 60 days. In addition to termination, the terminating party retains the right to seek all remedies available under law or in equity that are not otherwise restricted by this Agreement.
9.3. Termination of an Order Form will not be deemed a termination of this Agreement or any other Order Form; however, termination of this Agreement will immediately terminate all outstanding Order Forms.
Section 10 – Professional Services
10.1 Professional Services. Partner may engage commercetools for training, enablement, solution consulting, or other technical services in respect of the Service (“Professional Services”) by entering into an Order Form.
10.2 Delivery; Use. Partner will give commercetools timely access to Partner materials, systems, and other resources (“Partner Materials”) reasonably needed to provide the Professional Services, and if Partner fails to do so, commercetools’s obligation to provide Professional Services will be excused until access is provided. commercetools may use contractors to provide the Professional Services. Partner represents and warrants to commercetools that it has all necessary rights, consents, and permissions to provide the Partner Materials to commercetools. Partner, as between the parties, retains all ownership rights in the Partner Materials and grants to commercetools a limited right to use and access the Partner Materials only to provide the Professional Services to Partner. commercetools will treat the Partner Materials as Confidential Information. Subject to payment of the applicable fees and a current subscription to the Service, Partner is granted a non-exclusive and non-transferable license to use the product of any Professional Services for its own internal business purposes only and consistent with the licenses and restrictions set forth in this Agreement.
10.3 Ownership. Unless otherwise specified in an Order Form, commercetools retains all rights to deliverables that are created during the performance of the Professional Services. This includes intellectual property, software and its source code, processes, all know-how, system interfaces, templates, methodologies, ideas, concepts, techniques, tools, and technologies (including web-based technologies and algorithms) that are owned, licensed to, developed, or changed by commercetools.
10.4 Professional Services Warranty; Remedy. commercetools warrants to Partner that commercetools will perform any Professional Services in a professional and workmanlike manner. If commercetools breaches this warranty and Partner makes a reasonably detailed warranty claim within 30 days of discovering the issue, then commercetools will use reasonable efforts to correct the non-conformity. If commercetools cannot correct the non-conforming Professional Services, either party may terminate the applicable Professional Services from the affected Order Form, in which case commercetools will refund to Partner any such pre-paid, unused fees for the terminated portion. These procedures are Partner’s sole and exclusive remedy and commercetools’s entire liability for breach of this Section 10.4 (Professional Services Warranty; Remedy). The entire liability of commercetools under or in connection with the Professional Services will at all times be limited to the fees paid for such Professional Services in the Order Form.
Section 11 - General Terms
11.1. Assignment. This Agreement may not be assigned without the other party’s prior written consent; provided that in connection with a merger, reorganization, or sale of all or substantially all of its assets, this Agreement shall automatically transfer to the successor in interest. In which case, the party shall provide notification that such transfer has occurred within thirty (30) days of such event.
11.2. Governing Law, Jurisdiction, and Venue. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
11.3. Notices. Notices under this Agreement must be in writing. Notices will be deemed given upon: (a) personal delivery; (b) 3 days after sending via certified, registered mail, or deposit with a globally recognized courier; or (c) email delivery as set out below.
Partner is responsible for providing commercetools with the most current email and postal address and updating it as applicable. Notices by email to commercetools shall be sent to legal@commercetools.com. Notices by email to Partner shall be sent to the email address set out in the Order Form. Either party may update its address with notice to the other. commercetools may also send operational notices to Partner by email or through the Service.
11.4. Entire Agreement. This Agreement (and all Order Forms) is the parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. In the event of any conflict or inconsistency between the Order Form and this Agreement, the Order Form will prevail. Partner’s purchases are not contingent on delivery of any future functionality or features. The terms set out in this Agreement apply to the Service only, and do not apply to any free beta trials, unpaid use of the service, pre-release use of commercetools products or services. The terms in any Partner purchase order, business form, online terms (i.e. click-wrap or browse-wrap), or invoicing portal will not amend or modify this Agreement and are expressly rejected; any of this documentation is for Partner’s own administrative purposes only and is not binding on commercetools.
11.5. Survival. The provisions of section 1.7 (Restrictions), section 4 (Warranties and Disclaimers), section 5 (Confidentiality), section 6 (Ownership), section 7 (Limitations of Liability), section 8 (Indemnification), section 10 (Professional Services), and section 11 (General Terms) of this Agreement shall survive the expiration or termination of this Agreement, in addition to any other provisions of the Agreement and/or any Order Form required to give effect to those provisions. Nothing shall prevent commercetools from contracting directly with the End Customer for the same or similar Service, following the termination of an Order Form for any reason.
11.6. Force Majeure. Either party shall be excused from failures or delays in delivery or performance under this Agreement to the extent such failure or delay is, directly or indirectly, attributable to causes beyond its reasonable control, including, without limitation, strikes, illness, virus, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services (“Force Majeure Event”) and such cause makes performance or delivery commercially impractical. Upon the occurrence of a Force Majeure Event: (a) the time of delivery or performance and time of payment shall be extended for a period of time equal to the time lost by reason of such Force Majeure Event; (b) the non-performing party shall promptly notify the other party of the circumstances hindering its performance and of its plans and efforts to implement a work-around, in which case the non-performing party shall be excused from any further performance or observance of the affected obligations for as long as (i) such circumstances prevail, and (ii) the non-performing party continues to attempt to recommence performance or observance to the greatest extent possible without delay.
11.7. Public Announcements and Advertising. Any public announcement or advertising of the collaboration of the parties shall be agreed in advance. However, both parties are entitled to name the respective other party on their websites during the Term of this Agreement.
11.8. Severability. If a court of competent jurisdiction finds any provision in this Agreement to be invalid or unenforceable, such finding shall not affect the validity and enforceability of the remaining provisions of this Agreement and the parties or the court will in good faith modify the invalid or unenforceable provision to the extent required to allow its enforcement in a manner that most closely represents the intentions of the parties in entering into this Agreement.
11.9. Anti-Corruption and Export. Each party will, and will cause its employees, consultants, and agents to, comply with all applicable anti-bribery, anti-fraud and export laws and regulations in their provision and use of the Service.
GLOSSARY OF TERMS USED:
“Affiliate” means a company, whether a corporation or other business entity, that is controlling, controlled by or under common control with Partner. “Control” shall mean the direct or indirect ownership of more than fifty percent (50%) of the equity interest in such corporation or business entity, or the ability in fact to control the management decisions of such corporation or business entity.
“Customer Data” means the data, information, or content that is sent to the Service.
“Documentation” means the commercetools technical guides and documentation made available from the dedicated ‘Documentation’ page of the commercetools website set out here: https://docs.commercetools.com/docs/.
“End Customer” means the Partner’s customer as designated in an applicable Order Form, and their respective end users, that is authorized by the Partner and commercetools to access and use the Service.
“Order Form” means a purchasing contract for access to the Service or related services that is executed by the parties and references this Agreement.
“Prohibited Data” means any: (1) special categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation; (2) patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act (as amended and supplemented) (“HIPAA”); (3) credit, debit, or other payment card data or financial account information, including bank account numbers; (4) credentials granting access to an online account; (5) social security numbers, driver’s license numbers, or other government identification numbers; and (6) other data or information subject to regulation or protection under applicable laws.
“Service” means the generally-available commercetools products purchased in an applicable Order Form.
“Term” means the then-current period of use set out in an Order Form.