Technology Partner Agreement
Last Updated: September 17, 2024
commercetools GmbH, located at Adams-Lehmann-Str. 44 in 80797 Munich, Germany (“commercetools”) is a provider of e-commerce software-as-a-service products.
Technology Partner (“TP”) is offering products and services for which the TP will develop a connector between such TP products and services and the Service, as defined below (“Integration Solution”) based on the following terms and conditions, which together with the Cover Page constitute the complete understanding between the parties concerning the use of the Service for the purpose of developing the Integration Solution (the “Agreement”). In case of any conflict or inconsistency between the Cover Page and the following terms and conditions, the Cover Page shall prevail.
1. DEFINITIONS
1.1 “Customer” shall mean a company that is or will be authorized through valid agreements with commercetools to use the Service as well as with the TP to use the TP’s products.
1.2 “Service” shall mean the generally-available commercetools products and related products and services for development purposes. Use of commercetools products provided under open-source software license terms (such as SDKs) will be governed under separate open-source license agreements and are not governed under this Agreement.
2. APPOINTMENT
2.1 Subject to the terms and conditions of this Agreement, commercetools hereby appoints TP and grants to TP a non-exclusive right to develop and market an Integration Solution as described in the Cover Page for the use of Customers. TP recognizes that it is not authorized, and agrees that it will not, directly or indirectly grant any right to or resell the Service.
3. USE OF THE SERVICE
3.1 commercetools will provide TP access to use the Service for development purposes only and grants TP without charge, a limited, non-exclusive, non-transferable, revocable right to use the Service during the term of this Agreement solely to do the following:
3.1.1 to develop and test the Integration Solution between the Service and TP’s product(s); and
3.1.2 to provide demo(s) of TP’s products together with the Integration Solution in non-production environments to prospects and Customers for the purpose of promoting the Service and Integration Solution.
3.2 TP must register and open a commercetools account at https://mc.commercetools.co/login/new. Subject to Section 4.2 (Use of Contractors), TP may not share any account or access to the Service with any third parties. TP is responsible for identifying and authenticating all users, for approving access by such users, for controlling against unauthorized access by users, and for maintaining the confidentiality of usernames, passwords and account information. TP is further responsible for all activities that occur under its users’ passwords or accounts or as a result of TP´s use of the Service and TP agrees to notify commercetools immediately of any unauthorized use.
3.3 Access to the Service is limited to 2 development projects. Any further development projects are subject to commercetools´ prior approval.
3.4 TP may not use the Service in a production environment based on this Agreement. TP will not use access to the Service to directly or indirectly, during or after the term of this Agreement, reverse engineer, decompile, disassemble, seek to access the source code, modify, copy, distribute, or otherwise attempt to discover the Service or any portion thereof outside the scope of this Agreement.
4. DEVELOPMENT OF INTEGRATION SOLUTION
4.1 Integration Approach. commercetools and TP will mutually agree on an integration approach, specific features and timeline within sixty (60) days of Effective Date outlined in the Cover Page.
4.2 Use of Contractors. TP may authorize or enable a third party to use the Service subject to and expressly conditioned on the following: (i) the third party is and continues to be a contractor to TP and requires the access or use rights for the sole purpose of performing work on TP´s behalf and sole benefit, but only for so long as such access or use is necessary; (ii) TP has a written agreement in place with the third party that contains terms and conditions no less protective, including all intellectual property rights therein; and (iii) TP guarantees, ensures and remains fully responsible for the performance of and compliance by each third party with all terms and conditions in this Agreement.
4.3 Testing. Any testing which may impact the performance and/or security of the Service shall only take place upon commercetools´ prior written approval. TP shall provide information about time and duration any such testing shall take place.
4.4 Integration Code, Documentation, Maintenance. Unless agreed otherwise in writing, the Integration Solution source code and documentation should be released to Customers as open-source software license under any relevant TP open-source license terms (such as but not limited to Open-Source GitHub repositories under MIT license which allows commercial and open-source re-use). It is the responsibility of TP to provide any maintenance and/or support of the Integration Solution vis-a-vis the Customers.
4.5 Costs and expenses. If not provided otherwise, all costs and expenses incurred by TP or commercetools in connection with this Agreement or its execution shall be borne by each party individually.
5. COMMERCETOOLS SUPPORT AND PROFESSIONAL SERVICES
5.1 Technical support. commercetools will provide, without any further costs, basic technical email support for the Service, using reasonable commercial efforts to correct any material, reproducible errors in the Service of which TP notifies commercetools.
5.2 Qualified personnel. TP shall only use qualified personnel to develop the Integration Solution. In order to achieve and maintain such qualifications, commercetools reserves the right to ask TP to comply with any specific qualification requirements as commercetools deems reasonably required for the development of the Integration Solution (e.g. TP personnel to receive development training). Such training and/or Professional Services shall be provided upon request and separately agreed upon (in an Order Form) based on commercetools’ then-current pricing.
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. Subject to payment of the applicable fees, TP 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.
6. MARKETING
6.1 commercetools may include information about the Integration Solution, TP's name and corporate logo (subject to Section 6.3), a short description of the TP's business, a link to the TP's website, and/or TP contact information on a commercetools website under any technology partner listings and/or any dedicated partner websites such as the “Marketplace”, which may change from time to time.
6.2 TP may acknowledge the appointment as commercetools’ technology partner in an appropriate position on the TP's website using any commercetools logo (subject to sec 6.3) and link to the commercetools website.
6.3 Upon request, the parties will provide their color artwork of name and/or logo in the form and on the media specified by the parties for such purposes. Use of the other party's name or logo shall not create any right, title or interest in or to the same; all such use and goodwill associated with such name and logo will inure to the benefit of respective owner of such name or logo. Each party agrees to comply with reasonable use instructions provided by the other from time to time in connection with such usage.
6.4 The parties may, from time to time, mutually agree on executing other marketing activities as part of a marketing planning process. To the extent applicable, the parties agree to the terms of the Joint Controllership Agreement located here: https://commercetools.com/joint-controllership-agreement.
7. INDEMNIFICATION
7.1 commercetools will defend TP from and against any third-party claim to the extent alleging that the Service, when used by TP as authorized, infringes a third-party’s patent, copyright, or trademark. commercetools will hold harmless and indemnify TP against any damages or costs awarded against TP (including reasonable attorneys’ fees) or agreed in settlement by commercetools resulting from the claim.
7.2 TP will defend commercetools from and against any third-party claim to the extent alleging that the TP’s products infringe a third-party’s patent, copyright, trademark, or other intellectual property rights. TP will hold harmless and indemnify commercetools against any damages or costs awarded against commercetools (including reasonable attorneys’ fees) or agreed in settlement by TP resulting from the claim.
7.3 The obligations under this Section 7 (Indemnification) shall be conditioned on the party seeking indemnification providing the indemnifying party with (i) prompt notice of any claim, (ii) sole control of the defense and settlement of any such claim and (iii) reasonable cooperation in such defense and settlement, 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.
7.4 Limitation of Representation. Neither party shall have the authority to represent the other party as an agent, employee, officer, or representative. Neither the making of this Agreement, nor the performance of any part of the provisions hereof, shall be construed to constitute TP or commercetools as an agent, representative, employee, or officer of the other party for any purpose, nor shall this Agreement be deemed to establish a joint venture or partnership between the parties. Each party shall, in all respects, be deemed an independent contractor with respect to the performance of its obligations hereunder.
8. WARRANTY
8.1 TP represents and warrants that it will use the Service in compliance with all applicable laws and regulations (including without limitation laws and regulations related to privacy, intellectual property, consumer protection, obscenity or defamation).
8.2 Each party represents and warrants to the other that it has the right to enter into this Agreement and to fully perform its obligations hereunder.
8.3 The Service is provided AS-IS for the purpose of this Agreement and commercetools does not warrant or represent that the Service fit for a specific purpose.
9. LIMITATION OF LIABILITY
9.1 To the maximum extent permitted by law, except for the indemnification obligations set forth in this Agreement, neither party shall be liable hereunder for any loss of profits, business, data, or for interruption of business, or any other indirect, incidental, consequential or punitive damages even if advised of the possibility of such damages, regardless of the form of action. Except for gross negligence, intentional misconduct, or a party’s indemnification obligations under Section 7 (Indemnification), each party’s aggregate, cumulative monetary liability for any damages arising from or related to this Agreement, whether in contract or in tort or under any other legal theory (including strict liability and negligence), shall not exceed an amount of $50,000.
10. IP OWNERSHIP
10.1 Except as specifically set forth herein, each party shall retain all intellectual property rights in its intellectual property and for any works or materials which it creates in connection with this Agreement.
10.2 Except as explicitly licensed herein, this Agreement does not transfer any intellectual property rights between the parties. For clarification purposes (i) TP retains all right, title and interest in the TP’s products and (ii) commercetools retains all right, title and interest in and to the Service, including without limitation, all improvements and modifications thereto and all derivative works thereof. Other than as expressly set forth in this Agreement, no license or other rights in or to a party’s products, services or intellectual property is granted, and all such licenses and rights are hereby expressly reserved.
11. CONFIDENTIALITY
11.1 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.
11.2 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 11 (Confidentiality) and such parties are bound to confidentiality obligations no less protective than this Section 11 (Confidentiality).
11.3 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.
11.4 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 11 (Confidentiality).
12. NON-EXCLUSIVITY
12.1 Nothing in this Agreement shall restrict the parties at any time from recommending, marketing, selling or providing any solutions, products or services (including without limitation products or services that are competitive with the Service or the TP’s products).
13. TERM AND TERMINATION
13.1 Term. This Agreement shall commence upon the Effective Date as provided in the Cover Page and shall remain in effect until terminated by one of the parties (the “Term”).
13.2 Termination. Each party may terminate this Agreement for convenience upon 90 days written notice at any time. 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.
13.3 Effect of Termination. Upon termination of this Agreement, TP will cease access to and use of the Service. Furthermore, upon termination of this Agreement, each party shall also cease to use designated logos and trademarks and delete all references to the other party from its websites immediately and not use them for any future sales, promotion, marketing materials.
14. GENERAL PROVISIONS
14.1 Code of Conduct. TP 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. TP agrees to abide by such Code of Conduct.
14.2 Relationship of the parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
14.3 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.
14.4 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. TP 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 TP shall be sent to the email address set out in the Cover Page. Either party may update its address with notice to the other.
14.5 Governing Law. 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.
14.6 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.
14.7 Survival. The provisions of Section 7 (Indemnification), Section 8 (Warranty), Section 9 (Limitation of Liability), Section 10 (IP Ownership), Section 11 (Confidentiality), and Section 14 (General Provisions) of this Agreement shall survive the expiration or termination of this Agreement, in addition to any other provisions of this Agreement required to give effect to those provisions.
14.8 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. 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 TP.