Solution Partner Program Agreement
Last Updated: September 17, 2024
commercetools is a provider of e-commerce software-as-a-service products.
Partner is a service provider delivering design, implementation and integration of solutions in the field of commerce and other related fields to its customers.
Partner desires to enroll in the commercetools Solution Partner Program and from time to time to refer potential customers to commercetools in exchange for a fee provided by commercetools for sales contracts resulting from such referrals based on the following terms and conditions, which together with the Cover Page and any supplementary Solution Partner Program description constitute the complete understanding between the parties concerning the subject matter (the “Agreement”). In the event of conflicting provisions between each of such documents, the following order of precedence will apply: Cover Page, these terms and conditions, Solution Partner Program description.
1. DEFINITIONS
1.1 “Approved Referral” shall mean the referral of a New Customer acknowledged by commercetools in accordance with Section 2.1.
1.2 “Cover Page” mean the executed cover and signature page referencing these Solution Partner Program Agreement terms and conditions and incorporated hereto by reference.
1.3 “Fee Period” shall mean the period beginning on the date commercetools receives its first payment of Net Usage Fees pursuant to the applicable Referral Contract and ending twelve (12) months thereafter.
1.4 “Initial Projects” shall mean the first commercetools implementation projects completed by Partner.
1.5 “Initiation Period” shall mean the timeframe as set forth in the Solution Partner Program Agreement Cover Page.
1.6 “Net Usage Fees” shall mean the fees charged by commercetools to its customer for the use of the Service, less any taxes, third party processing commissions, interest and finance charges, insurance charges and the amount of any credits, refunds, discounts, rebates and promotional allowances.
1.7 “New Customer” shall mean any natural person or entity who does not, and whose affiliates do not, use the Service as of the date of the acknowledged registration of an opportunity and who, whether directly or through its affiliates, has not been solicited by commercetools or any of its agents or representatives as a potential customer during the twelve (12)-month period prior to submitting an opportunity registration to commercetools.
1.8 “Referral Contract” shall mean a binding contract between commercetools and the New Customer pursuant to which commercetools provides the Service to such New Customer and which has a term of at least twelve (12) months.
1.9 “Referral Fee” is the lesser of (i) ten percent (10%) of the total amount of Net Usage Fees paid during the Fee Period for each Referral Contract, or (ii) €100,000 EUR. Payment of the Referral Fee shall be contingent upon commercetools’ receipt of payment made by such New Customer.
1.10 “Region of Execution” shall be the territorial region in which Partner’s primary place of business is located. The Agreement is executed between Partner and the commercetools entity located in such Region of Execution, which is in (i) EMEA: commercetools GmbH, Adams-Lehmann-Str. 44, 80797 Munich, Germany, (ii) Americas: commercetools Inc., 324 Blackwell Street, Suite 120, Durham NC 27701, USA, (iii) ANZ: commercetools AU Pty. Ltd., Suite 2, Level 5, 6-10 O’Connell Street, Sydney, NSW 2000 and (iv) APAC: commercetools Pte. Ltd., 20A Tanjong Pagar Road, Singapore 088443. Each of such entities is referred to in the Agreement as “commercetools”.
1.11 “Registered Opportunity” shall mean an Approved Referral for which Partner has introduced commercetools to a decision maker at the potential customer (or, if a direct introduction is not possible, an Approved Referral for which Partner has substantially engaged with the commercetools Sales organization to the reasonable satisfaction of commercetools) within thirty (30) days from commercetools’ acknowledgment of Partner’s referral registration.
1.12 “Service” shall mean the generally-available commercetools products and services.
1.13 “Solution Partner Program” commercetools’ program outlining requirements, benefits and certification levels described at the following URL and as updated by commercetools from time to time: http://www.commercetools.com/partner-program.
2. REFERRALS
2.1 Registration. Partner may register a customer referral to commercetools by submitting the particular sales opportunity information to commercetools in accordance with this Section. All information (including but not limited to contact name, company name, location, valid email address and description of opportunity) related to such opportunity must be submitted via the Partner Opportunity Registration Form published at the following URL and as updated by commercetools from time to time: http://www.commercetools.com/partner-referral.
commercetools shall acknowledge the referral registration within five (5) business days of commercetools’ receipt of Partner’s referral registration information. Each opportunity must meet any and all qualifications and criteria established by commercetools. Partner acknowledges and agrees that commercetools may reject a referral at commercetools’ discretion. An Approved Referral will expire nine (9) months from the date of acknowledgement unless otherwise extended in writing. In all instances, for a Referral Fee to apply, written confirmation accepting the Registered Opportunity must be provided by commercetools to Partner.
2.2 Referral Contract. The Referral Contract includes the terms and conditions governing the New Customer’s use of the Service. commercetools will meet, conference and negotiate independently with a potential New Customer with respect to the terms applicable to the Referral Contract.
Partner may not object to any decisions made by commercetools regarding the terms or conditions of a particular Referral Contract entered into with a potential New Customer. Furthermore, commercetools will have sole discretion to enter into or not enter into a Referral Contract with a potential New Customer.
Partner shall not provide to a potential New Customer any information on commercetools prices, product quotes or contracts in relation to the Service, nor grant any option to purchase or represent any economics as it relates to a Referral Contract unless agreed by the parties in writing. commercetools may provide contract details on a need-to-know basis to Partner if and when a Referral Contract with a New Customer is executed.
2.3 Referral Fee Statement and Invoicing. commercetools shall, within thirty (30) days of the end of each calendar quarter, commencing with the calendar quarter during which a Referral Contract is executed and the first payment of Net Usage Fees is paid to commercetools, furnish Partner a statement setting forth a calculation of the Net Usage Fees for each Referral Contract for such preceding calendar quarter and the amount of the Referral Fee in respect of each Referral Contract (“Referral Fee Statement”). If Partner does not deliver a written notice of objection to a Referral Fee Statement setting forth in reasonable detail the basis for any objection within ten (10) days of delivery of such Referral Fee Statement by commercetools, Partner shall promptly, no later than thirty (30) days after receipt of the Referral Fee Statement, deliver to commercetools an invoice for the Referral Fee as set forth in the applicable Referral Fee Statement. Each invoice shall be due and payable to Partner not less than thirty (30) days from the date of such invoice to an account specified by Partner. commercetools reserves the right to deduct any occurring bank transfer fees.
If an affiliated company of commercetools (namely one of the commercetools companies provided in above Section 1.11) which is based in a region other than the contracting party of this Agreement concludes the Referral Contract with a New Customer, the parties agree that this affiliated company may join this Agreement for the purpose of providing the Referral Fee Statement, in which case invoices shall be issued to such affiliated company of commercetools.
3. PARTNER OBLIGATIONS AND BENEFITS
3.1 Training. Any training and/or Professional Services shall be delivered by commercetools based on commercetools’ then-current pricing.
Unless otherwise specified in a separate Order Form for Professional Services, 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. Subject to payment of the applicable fees, 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 rights and restrictions set forth in this Agreement.
3.2 Project Support. Partner agrees to purchase packages of Professional Services from commercetools that will be constructed to ensure the success of the Initial Projects. The cost of such package will be negotiated prior to the inception of each Partner’s project but will at minimum consist of architectural reviews by a commercetools solution architect. This requirement may be waived at commercetools’ discretion.
3.3 Sales Enablement. In order to properly position the Service with customers and potential customers, Partner agrees to participate in one (1) or more sales enablement sessions within the Initiation Period. commercetools will offer these enablement sessions at no cost to Partner. Furthermore, Partner will receive access to any websites specifically dedicated to commercetools partners to support ongoing business development efforts (“Partner Center”).
3.4 Program Benefits. Partner may qualify for additional benefits of the commercetools Solution Partner Program as described at the following URL and as updated by commercetools from time to time: http://www.commercetools.com/partner-program.
3.5 Use of Marks. This Agreement shall not be construed as permitting either party to use or display any names, trademarks, insignias, logos, trade names or service marks (collectively, “Marks”) of the other party except as expressly set forth in the Solution Partner Program description and/or in order to properly identify the services or products of the other party on its website and in correspondence issued in the ordinary course of business pursuant to this Agreement. Neither party will issue press releases or similar public announcements containing the other party’s Marks or any of the other party’s customers’ Marks without the other party’s prior written approval. Upon termination of this Agreement, neither party will have any continuing right to use the other party’s Marks and each party will immediately cease all such use of the other party’s Marks. To the extent applicable, the parties agree to the terms of the Joint Controllership Agreement located here: https://commercetools.com/joint-controllership-agreement.
4. LIABILITY AND INDEMNIFICATION
4.1 Limited Liabilities. To the extent permitted by applicable law and subject to Section 4.2 (Unlimited Liability), neither party will have any liability arising out of or relating to this Agreement for any indirect, consequential, special, incidental, or punitive damages, or lost revenues, profits, savings, or goodwill.
Each party’s total liability for damages arising out of or relating to the Agreement is limited to the greater of total €25,000, or the total of fees paid under this Agreement for the twelve (12)-month period before the incident giving rise to liability.
4.2 Unlimited Liability. Nothing in this Agreement excludes or limits either party’s liability for: (a) death, personal injury, or tangible personal property damage resulting from its negligence, gross negligence, or intentional misconduct; (b) its fraud or fraudulent misrepresentation; (c) its obligations under Section 4.3 (Indemnification); (d) its infringement of the other party’s intellectual property rights; or (e) matters for which liability cannot be excluded or limited under applicable law.
4.3 Indemnification. In the event of any third party claim against either party (the indemnified party) for infringement or misappropriation of intellectual property rights by the products or services provided by the other party (the indemnifying party), the indemnifying party will at its expense indemnify, defend and hold harmless the indemnified party from any such claims, allegations, damages, losses, liabilities, costs and expenses (including without limitation reasonable legal fees) incurred by the indemnified party, and will pay any damages awarded in connection with such claim, provided that: (a) the indemnifying party shall have the sole and exclusive authority to defend and/or settle any such claim or action, (b) the indemnified party will cooperate with the indemnifying party, at the indemnifying party’s expense, in connection with the defense, and (c) the indemnified party will promptly notify the indemnifying party of any such claim or action of which it is aware and any proposed settlement thereof. 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.
5. CONFIDENTIALITY
5.1 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 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, 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 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 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).
6. MISCELLANEOUS
6.1 Non-Exclusivity. Nothing in this Agreement shall restrict Partner at any time from recommending, marketing, selling or providing any products or services (including without limitation products or services that are competitive with the Service) to New Customers or Registered Opportunities.
6.2 Relationship of Parties. Nothing in this Agreement shall be construed to place the parties in the relationship of partners or joint ventures and neither party shall have any right or power to obligate or bind the other in any manner whatsoever except as specifically authorized in writing.
6.3 Term, Termination and Survival. This Agreement shall take effect upon both parties’ signature (e-signature permissible) provided on the Cover Page. It may be terminated by either party for convenience with at least three (3) months’ prior written notice, which termination shall be effective at the end of the next calendar quarter. In addition to any other remedies the parties may have, either party may terminate this Agreement effective immediately upon notice to the other party, if the other party breaches any of the material obligations under this Agreement. Upon any termination, the provisions in Section 2 (Referrals), Section 4 (Liability and Indemnification), Section 5 (Confidentiality), and Section 6 (Miscellaneous) shall survive. For the avoidance of doubt, following termination of this Agreement the provisions of Section 2 (Referrals) shall remain in effect with respect to any Registered Opportunity accepted prior to the effective date of such termination.
6.4 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 herein. 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 partner@commercetools.com. Notices by email to Partner shall be sent to the email address set out in the Cover Page. Either party may update its address with notice to the other.
6.5 Expenses. All costs and expenses incurred by commercetools or Partner in connection with this Agreement or its execution shall be borne respectively by each party individually.
6.6 Headings. The headings on each paragraph hereof are for convenience purposes only and shall not be used to construe the terms of this Agreement.
6.7 Amendment. commercetools may modify this Agreement from time to time and such modifications shall become effective immediately. If a modification materially impacts this Agreement, commercetools will use reasonable efforts to notify Partner.
6.8 Code of Conduct. Partner understands that this Agreement includes the commercetools Code of Conduct for Business Partners located here: https://commercetools.com/assets/files-pdf/sig_code_of_conduct_business.pdf. Partner agrees to abide by such Code of Conduct.
6.9 Successors and Assigns. This Agreement shall be binding upon the parties and their successors and assigns. 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.
6.10 Governing Law. Based on the Region of Execution the following shall apply: (1) Americas: This Agreement is governed by and shall be construed in accordance with the laws of the State of New York applicable to contracts made and performed in such state (without regard to principles of conflict of laws) and any applicable law of the United States of America. Any legal suit, action or proceeding against any party arising out of or relating to this Agreement must be instituted exclusively in the federal or state courts located in the City of New York, County of New York. The parties stipulate, agree, and irrevocably consent that such court shall have subject matter and specific personal jurisdiction over the parties and that venue in said court is proper. Each party waives any objections which it may now or hereafter have based on jurisdiction and/or venue, and waives any right to move for dismissal based on grounds of forum non conveniens, of any such suit, action or proceeding. (2) ANZ: This Agreement shall be governed by, and construed in accordance with, the laws of the State of New South Wales applicable to contracts made and performed in such state (without regard to principles of conflict of laws) and any applicable law of the Commonwealth of Australia. Any legal suit, action or proceeding against any party arising out of or relating to this Agreement must be instituted exclusively in the courts State of New South Wales. The parties stipulate, agree, and irrevocably consent that such courts shall have subject matter and specific personal jurisdiction over the parties and that venue in said court is proper. Each party waives any objections which it may now or hereafter have based on jurisdiction and/or venue, and waives any right to move for dismissal based on grounds of forum non conveniens, of any such suit, action or proceeding. (3) APAC (excluding ANZ): This Agreement shall be governed by Singapore law. Any and all disputes shall be settled in a court of competent jurisdiction in Singapore. (4) EMEA: 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 the laws of the Federal Republic of Germany with the exclusion of UN sales law and the provisions of international private law. The courts in Munich shall have exclusive jurisdiction over all legal disputes ensuing from or in connection with this Agreement unless other places of jurisdiction apply under mandatory law.
6.11 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.
6.12 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter and supersedes all prior or contemporaneous agreements and understandings, both oral and written, between the parties with respect to the subject matter of this Agreement.