OUTSYSTEMS CHANNEL PARTNER AGREEMENT
Updated: Monday, January 4, 2021 - 17:25 GMT
This OutSystems Channel Partner Agreement (this “Agreement”) is entered into as of the Effective Date by and between “OutSystems” and the “Channel Partner.
a) OutSystems wants to expand access to its Software solutions and Services;
b) Channel Partner desires to refer and forward potential End-Customers of the Software and/or the Services.
c) Channel Partner may have the means and desire to resell OutSystems products and associated services.
d) Channel Partner may have the means and desire to offer value-added services or business solutions based on the OutSystems Product to its customers
NOW, THEREFORE, in consideration of the promises and mutual covenants contained herein the Parties agree as follows:
1.1 In this Agreement, capitalized terms shall have the following meaning:
“Accepted Opportunity” means each Opportunity accepted by OutSystems per the provisions stated in Section 3 of this Agreement.
“Branding Guidelines” means OutSystems' proprietary trade names, trade dress, service marks, trademarks, logos, and other distinctive branding features as provided to the Channel Partner by OutSystems.
“Channel Partner Program” means the program, available online, and as updated from time to time where the appropriate category of Channel Partner and applicable conditions will be defined.
“Cloud Environment Fee” means the fee payable to OutSystems by Channel Partner in order to participate in the OutSystems Channel Partner program.
“Confidential Information” refers to non-public information that either Party may obtain from the other or have access to by virtue of this Agreement, including, but not limited to, each Party’s data and proprietary software and computer operations, all code, inventions, algorithms, business concepts, workflow, business, financial and technical information, knowhow, proprietary information, the terms and pricing under this Agreement, and all information clearly identified as confidential or that by the nature of the information reasonably should be deemed as confidential.
“Documentation” means information contained in the user guides, operating manuals and web properties provided by OutSystems with the Software or otherwise made accessible to Channel Partner, as may be updated from time to time.
“End-Customer” means a business entity that has executed an agreement with OutSystems and has paid all fees due for the Product.
“Effective Date” means the date on which OutSystems and Channel Partner have executed this Agreement, by signing the respective Partner Order (or the date of the last signature if not executed by both parties in the same date).
“Net Receipts” means the actual amount of End-Customer payments received by OutSystems for the Software and/or the OutSystems Services pursuant to the execution of a Partner Order with an End-Customer or Prospect associated with an Accepted Opportunity, less any taxes, and discounts, markdowns and other price protection actually given.
“Opportunity” means a project or use case, within an End-Customer or a Prospect, where the purchase of software and services is being considered, the outcome of which is a signed Partner Order.
“Order” means the ordering documents for purchases hereunder, including addenda thereto, that are entered between End-Customer and OutSystems from time to time. Orders shall be deemed incorporated herein by reference.
“Partner Order” means the ordering documents defining partnership conditions, that are entered between Channel Partner and OutSystems from time to time. Partner Orders shall be deemed incorporated herein by reference.
“Product” means the OutSystems Software, Documentation and Services, including any modification, improvements, alterations, translations, localizations, innovations, or changes of any kind performed on the Software, Documentation and/or Services.
“Promotional Materials” shall mean any documents and materials including manuals and packaging of the Products, advertising, promotional, display and/or other such marketing materials of or concerning the Products which the Channel Partner may use in conjunction with the distribution of the Products and for promotional purposes only.
“Prospect” means each business entity referred to OutSystems by Channel Partner as a potential customer for the Product.
“Partner Commission” means the commission payable to the Channel Partner by OutSystems following the execution of an agreement between a Prospect and OutSystems according to Section 4 and specified in the Channel Partner Program.
“OutSystems Services” means the non-exclusive consulting, training, development, implementation or customization of information technology services and/or advice to be provided by OutSystems to an End-Customer on a time and materials or fixed price basis as agreed upon with End-Customer. OutSystems Services do not include the provision of any OutSystems’ proprietary Software or related maintenance and support services. OutSystems Services do not include the provision of the Support and Updates services included in a Subscription.
“Software” means the OutSystems’ software, including its updates, upgrades, platform as a service, documentation, a description of which is set out at https://www.outsystems.com/evaluation-guide/.
“Subscription” means the joint provision of Software licenses and Support and Updates services by OutSystems under and further to the execution of an agreement and respective Order between OutSystems and End-Customer.
“Support and Updates” means any Software support and updates services provided by OutSystems as detailed at www.outsystems.com/goto/outsystems-support-terms.
“Territory” means a geographically defined area in which this Agreement is valid, set forth in the Channel Partner Program.
“Upgrade” means an addition of users, application objects, features or any other changes to Client’s subscription, which results in an increase of the overall price of Client’s subscription.
“Validity Period” means the validity period of six (6) months following the date OutSystems has accepted the Opportunity as set forth in Section 3 of this Agreement.
2.1 Rights Granted. Subject to payment by Channel Partner within the payment scheduled date of the Cloud Environment Fee, Channel Partner shall have the non-exclusive right throughout the Territory, during the Term, and acting as an independent intermediary, to promote and advertise the Product to Prospects, for subsequent sale by OutSystems, in all commercial channels of distribution, including without limitation, retail, direct response and direct mail.
2.2 Duties and Responsibilities. Channel Partner shall (a) conduct its business in a manner that always reflects favorably on the Product and the good name, goodwill and reputation of OutSystems; (b) avoid deceptive, misleading or unethical practices, that are or might be detrimental to OutSystems or the Product, including false or misleading representations with regard to OutSystems or the Product. Channel Partner shall not make any representations or warranties concerning prices, terms or delivery, specifications, features, capabilities or performance of the Product that are inconsistent with the Documentation, terms of payment, or conditions of sales except to the extent such representations are authorized in writing by OutSystems. Channel Partner furthermore shall: (i) be responsible for its employees’ and contractors’ compliance with this Agreement, including all applicable restrictions; (ii) use commercially reasonable efforts to promote and expand the Product sales in the Territory in accordance with the terms and conditions of this Agreement and applicable laws and government regulations; (iii) review and fulfil the then-current requirements and benefits of a particular Channel Partner as listed in the Channel Partner Program. Failure to meet any of these duties and responsibilities may result in the immediate termination for cause of this Agreement by OutSystems.
2.3 Branding Guidelines. Channel Partner shall follow and fully comply with OutSystems Branding Guidelines in connection with the use of the Software by the End-Customer. OutSystems reserves the right to modify the Branding Guidelines from time to time and shall give the Channel Partner notice of any such modification. Within thirty (30) days of receipt of notice of any modifications to the Branding Guidelines, Channel Partner shall act to assure that all Product, Promotional Materials or other promotional matters related with the Software comply with the Branding Guidelines.
2.4 Reserved Rights. All rights not specifically granted to Channel Partner hereunder are reserved by OutSystems.
3. CHANNEL PARTNER OBLIGATIONS / REFERRAL OF OPPORTUNITIES
3.1 Promotion and Advertising. Channel Partner shall use commercially reasonable efforts to promote the marketing and distribution of the Product in order to conclude the maximum Product sales in the Territory. Except as expressly set forth herein or otherwise agreed in writing by the Parties, Channel Partner shall be solely responsible for all costs and expenses related to the advertising, marketing, promotion, and distribution of the Software and for performing its obligations hereunder. Channel Partner shall submit to OutSystems in advance, for OutSystems’ prior approval, any marketing and Promotional Materials developed by the Channel Partner related to the Product.
3.2 Referral of Opportunities. The Channel Partner shall notify OutSystems with the details of the Opportunity including, but not limited to, the description, timeline, budget, competition and the Prospect’s identification, sector, market and specific needs and/or demands, as the case may be, in accordance with the Opportunity registration feature located in the Channel Partner center portal of OutSystems. OutSystems may, in its sole discretion, accept or reject any referred Opportunity, and Channel Partner acknowledges that OutSystems may reject any Opportunity for any reason, including, but not limited to: (i) existing opportunities with OutSystems customers (except those originating from a previous referral by Channel Partner); (ii) opportunities originated by OutSystems and with whom OutSystems is, or has been, in discussions; (iii) and opportunities that have already been the subject of a referral by another Channel Partner and that have been approved by OutSystems. If the Opportunity is accepted Channel Partner will receive a formal notification through Channel Partner center portal. Absence of such notification means that the Opportunity has not been accepted by OutSystems.
3.3 Pursuit of Accepted Opportunities. Upon acceptance of the Opportunity, the Channel Partner is expected to continue to engage with the Prospect to further promote OutSystems and the Product to the Prospect. Channel Partner agrees to work collaboratively with OutSystems at all times and, where requested by OutSystems, Channel Partner agrees to work under the direction of an OutSystems representative. Unless otherwise explicitly requested by Channel Partner, and confirmed by OutSystems, every Opportunity referral shall be deemed non-exclusive. Under certain circumstances, a Channel Partner may request exclusivity for a specific opportunity referral, and OutSystems reserves the right to extend exclusivity for the Opportunity referral. In the event that exclusivity of Opportunity is granted to Channel Partner, the exclusivity of the Opportunity referral will be for the duration of the Validity Period. Such exclusivity means that OutSystems agrees to pursue Software license sales in cooperation with Channel Partner and agrees not to accept Opportunity referrals from any other Channel Partner except in the case of a public open tender, or upon written request by Prospect to either Party.
3.4 Opportunities Outside of Territory. In the event a Channel Partner finds an Opportunity to refer a Prospect outside of the Channel Partner’s defined Territory, Channel Partner must obtain OutSystems prior written consent to engage with such a Prospect, through an Accepted Opportunity registration. Channel Partner acknowledges that in such a case, specific rules of the applicable Territory and/or OutSystems specific guidelines and directions shall apply and supersede this Agreement.
3.5 Becoming an End-Customer. If the Prospect of an Accepted Opportunity has: (a) not previously entered into an agreement with OutSystems; (b) not previously been accepted by OutSystems as an Accepted Opportunity being referred or introduced to OutSystems by any other person, entity or Channel Partner or directly engaged by OutSystems; and (c) not previously been documented as an End-Customer (as defined above); (d) and OutSystems finally enters into an agreement with the Prospect of such Accepted Opportunity, this Prospect shall be considered an End-Customer for purposes of this Agreement and OutSystems shall pay the Partner Commission to Channel Partner as set forth below in Section 4 and in accordance with the Channel Partner Program.
3.6 Dispute of Referrals. In the event a referral of an Opportunity is registered by two or more Channel Partners, finders or other persons, OutSystems, alone and in its sole discretion, shall determine which party is entitled to a fee, if any, based primarily upon each party’s contribution.
3.7 Channel Partner’s Warranties. Channel Partner warrants and represents that, for each Opportunity referred to OutSystems under this Agreement, Channel Partner has the authority to make the referral on behalf of the Prospect, and that neither Channel Partner, nor any of its directors, officers, or shareholders, have a conflict of interests with the Prospect or with OutSystems or is in breach of any applicable policies in making the referral.
3.8 OutSystems Rights. Other than rights granted herein, Channel Partner acknowledges that nothing in this Agreement shall prevent or limit OutSystems from marketing and selling its Product, in whole or in part, directly or indirectly, in the Territory or outside the Territory, to any prospective customers, or from working with other representatives, resellers, distributors or other marketing agents, without any liability to Channel Partner.
4. PARTNER COMMISSIONS AND PAYMENT TERMS
4.1 Partner Commissions. Once the Prospect of an Accepted Opportunity becomes an OutSystems End-Customer within the Validity Period and payment of such End-Customer has been received by OutSystems, if the Channel Partner has paid the Cloud Environment Fee to OutSystems within the scheduled payment term, the Channel Partner will be entitled to the Partner Commission as set forth in the Channel Partner Program. The Parties agree that the Validity Period may be unilaterally extended by OutSystems notifying the Channel Partner of such extension and specifying the duration of the extension of the Validity Period.
4.2 Report. No later than the end of the calendar month following the month in which qualifying Prospect becomes an End-Customer, OutSystems shall provide the Channel Partner with a written report specifying the Partner Commission to which the Channel Partner is entitled for each order received by OutSystems and when that commission can be invoiced by the Channel Partner. No report will be provided if no referrals occurred. OutSystems reserves the right to review the report before the commission payment in case OutSystems concludes that the report sent was not aligned with the agreement signed between the Parties.
4.3 Payment terms. Partner Commission shall be based on the Net Receipts of the Product revenue received by OutSystems. Partner Commission is based on the rates as set forth in the Channel Partner Program. Payment of the Partner Commission shall be made by wire transfer. If OutSystems has not received the Channel Partner's invoice for the amount mentioned in the report described in this section 4.3. within 180 days from the provision of said report, the right to receive the Partner Commission shall expire. In certain jurisdictions an invoice from the Channel Partner may not be required and may be waived by OutSystems.
4.4 Taxes. The Channel Partner will bear all taxes and duties which may be levied with respect to the payment of the Partner Commission by OutSystems.
4.5 Expenses. The Channel Partner will bear all expenses and travel costs it may incur with respect to the performance of this Agreement.
4.6 Currency. All payments shall be made in the currency defined in the applicable Partner Order to be issued by OutSystems.
5. RESELLER TERMS AND CONDITIONS
5.1 General. In addition to refer and forward potential End-Customers of the Software and/or the Services to OutSystems, Channel Partner may have the means and desire to resell OutSystems products and associated services. In order to resell OutSystems products and services, Channel Partner must be certified by OutSystems as an authorized reseller, in accordance with the terms and conditions in the Channel Partner Program. After being certified as an authorized reseller Channel Partner may explore reselling opportunities, in which case the terms and conditions foreseen in section 5 will apply in addition to all the remaining sections of this Agreement except the ones specifically addressing the referral motion.
5.2 Additional definitions. In addition to the definitions in Section 1, the following definitions will apply when reselling:
“Activation File” means an electronic file that enables the Software in a Software Environment. The Activation File also specifies the scope and certain limitations of use of the Software.
“Activation Key” means a serial number issued by OutSystems to request Activation Files and activate one Software Infrastructure.
“Channel Partner Discount” shall mean the percentage discounted from the then current OutSystems price list for the Product.
“EULA” means OutSystems’ End-User License Agreement to be executed by End-Customers and which governs, inter-alia, the warranty, service levels, supports and maintenance relating to the Product available at https://www.outsystems.com/legal/end-user-licensing-agreement.
“OutSystems Support” shall mean any Software support services provided by OutSystems by telephone, e-mail or other method, as well as any other Software maintenance services, in accordance with the terms and conditions of this section and Master Subscription Agreement or EULA, as applicable.
“Reseller Order” means the ordering documents setting out the details of the Product resold by the Channel Partner to an End-Customer hereunder (including exhibits and addenda thereto), that are entered into between Channel Partner and OutSystems from time to time.
5.3 Rights Granted. Subject to the terms and conditions of this Section 5, when reselling OutSystems hereby grants to Channel Partner a non-exclusive, non-transferable, personal, non-sublicensable, except as expressly set forth in this Section below, limited right and license to: (a) Distribute and sublicense the Product to End-Customers under the Master Subscription Agreement or EULA, as applicable, solely for their own internal business purposes in the Territory; (b) Provide the Services to the End-Customer in the Territory.
5.4 Channel Partners Obligations. When reselling, in addition the other obligations and responsibilities foreseen in this Section and in this Agreement, Channel Partner shall (a) Train and maintain a sufficient number of capable technical and sales/pre-sales personnel having the knowledge and training necessary to (i) inform End-Customers properly concerning the features and capabilities of the Product; (ii) if applicable, provide the Training and Support to the Product in accordance with Channel Partner's obligations; (iii) achieve the Sales targets; (b) Ensure the adaptation of Product’s presentations, training and any other material of a commercial nature to the specific needs of the Territory; (c) Inform OutSystems promptly and in writing of any facts or opinions regarding suspected Product defects, intellectual property infringement claims, customer complaints and/or other facts that may affect the performance of this Agreement or OutSystems reputation or goodwill; (d) Promptly provide OutSystems, as may be requested, with detailed information regarding (i) the End-Customers (subject to any confidentiality obligations), (ii) the course of business in the Territory regarding the Product; (e) Obtain and maintain all government licenses, permits, and approvals, which are necessary or advisable.
5.5 Restrictions. Unless otherwise authorized under this Section, Channel Partner will not (and will not allow any third party to) (i) disassemble, decompile, or reverse engineer the Software that is part of the Product; (ii) copy or otherwise reproduce any Product, in whole or in part, except as expressly authorized by this Section 5; (iii) modify the Product in any manner, except as it may be expressly directed by OutSystems in writing or except as provided otherwise in this Section 5; (iv) use the Product(s) in any manner to provide service bureau, time sharing, or other computer services to third parties; (v) sell, rent, lease, assign or otherwise transfer in whole or in part the Product or any interest in them to another party; (vi) export or re-export the Product except as it may be expressly authorized by OutSystems in writing or except as provided otherwise in this Section 5; (vii) remove or modify any Product markings or any notice of OutSystems’ proprietary rights; (viii) disclose results of any Product benchmark tests to any third party without OutSystems’ prior written consent; (ix) use the Product in any way that is contrary to the terms and conditions of this Section 5; (x) amend the Master Subscription Agreement; (xi) amend the EULA; (xii) or use the Product for any unlawful purposes.
5.6 OutSystems Obligations. OutSystems shall: (a) Provide Channel Partner with all necessary documentation and information regarding the Product; (b) Provide Support to End-Customers; (c) Provide sales and pre-sales support to Channel Partner; (d) Respond to questions addressed by Partner in a timely manner; (e) Allow access to Territory related sales leads and deal management information using the partner portal; (f) Not encourage a prospective End-Customer to buy directly from it, by offering the Product at lower prices or otherwise (for this purpose the term “prospective End-Customer” shall be defined as an opportunity developed and registered by the Channel Partner and accepted by OutSystems).
5.7 Prices. OutSystems shall make Product and associated Services available to Channel Partner at Channel Partner Discount of OutSystems' then-current price list, which prices may change from time to time on 30 (thirty days) written notice to Channel Partner. Notwithstanding the foregoing, the parties may mutually agree to a steeper discount on a case by case basis in the event special circumstances arise, such as the opportunity to sell to an End-Customer of particular strategic importance who is demanding favourable pricing.
5.8 Agreement between Channel Partner and End-Customer. Channel Partner will enter into and cause each End-Customer to enter into a separate agreement for the use of the Software and the Product with provisions that (i) are either substantially similar to the terms and conditions of OutSystems EULA with respect to license use and restrictions, product and services specifications, confidentiality, intellectual property and warranty disclaimers or (ii) point to the OutSystems EULA to which End-Customer needs to agree. Channel Partner agrees not to grant any rights to any End-Customer to use the Software and the Product until the above-mentioned agreement is executed with End-Customer. Channel Partner agrees not to grant End-Customer any greater licensing rights than the ones granted to Channel Partner by OutSystems and commits to inform End-Customer of the applicable terms and conditions. Channel Partner will enforce its agreements with End-Customers with at least the same degree of diligence that Channel Partner uses to enforce similar agreements for its own products or other software products that it distributes, but in no event less than reasonable efforts. OutSystems shall not be a party to the agreements between Channel Partner and End-Customers and will not have any obligations or liabilities to Channel Partner or End-Customers under such agreements.
5.9 Reseller Order. Channel Partner shall order products from OutSystems on an End-Customer by End-Customer basis, by submitting a Reseller Order to OutSystems. End-Customer needs to be duly identified in the “Ship to” section of the order. OutSystems, on reasonable grounds (which shall be communicated to Channel Partner in writing), may reject any submitted order. Each Reseller Order placed by Channel Partner shall be subject to the terms of this Agreement. The Reseller Order must be completed when submitted to OutSystems and may not (a) require any concessions or obligations of OutSystems other than as set forth herein or (b) be changed after it is submitted to OutSystems, unless otherwise agreed between the Parties. Each Reseller Order placed by Channel Partner shall include all information required by OutSystems. In accordance with each Reseller Order OutSystems grants Channel Partner a non-exclusive, non-transferable, single-use, right to sublicense the Software to the End-Customer identified on section "Ship to" of the Order during the Subscription Term, subject to the specifications, limitations and restrictions set forth in the Reseller Order and in this Agreement.
5.10 Payment. OutSystems shall issue an invoice for ordered Product and/or Services, which shall be paid by Channel Partner within the term defined in the applicable Order. Payment by Channel Partner is due regardless of when or whether Channel Partner is paid by its End-Customers.
5.11 Currency. All payments shall be made in the currency defined in the applicable Reseller Order.
5.12 Taxes. All amounts payable by Channel Partner are payable in full without offset or deduction for taxes (including any withholding tax) or customs duties. In addition, Channel Partner shall be responsible for and shall pay any sales, use, value-added and similar transaction taxes and customs duties paid or payable, however designated, levied, or based on amounts payable by Channel Partner.
5.13 Early cancellation for non-payment. Channel Partner acknowledges and accepts that each Subscription can be interrupted and/or discontinued in the event of non-payment when the respective payment obligation (either of its entirety or a portion / instalment thereof) becomes due, as set forth in the applicable Reseller Order. This action could result in, but not limited to, the withholding of license keys, terminating cloud access, and/or denying service and support. Subject to the terms of the Agreement, Channel Partner acknowledges and accepts that the non-payment any due amounts constitutes a material breach and that OutSystems shall have the right to immediately terminate this Agreement in accordance with Section 8.
5.14 Specific Effects of Termination. In addition to section 8.4 below, unless the Agreement is terminated by OutSystems pursuant to breach by Channel Partner: (i) Channel Partner shall no longer have access to the Software in and to the Product (except as required to service any outstanding contracts with End-Customers) and all outstanding paid contracts with End-Customers will cease at the end of the respective term; and (ii) OutSystems is not liable for any damages incurred by Channel Partner or any third parties as a result of the termination of Channel Partner’s use of the Software in conformity with this section.
6. INTELLECTUAL PROPERTY RIGHTS, OWNERSHIP AND TITLE
6.1 Ownership. OutSystems retains all right, title, and interest in and to the Product (and any copies thereof), and in all related copyrights, trade secrets, patents, trademarks, and any other intellectual and industrial property and proprietary rights, including registrations, applications, renewals, and extensions of such rights. The Channel Partner is not granted any rights to any trademarks or service marks of OutSystems. The Channel Partner hereby assigns all necessary rights, title, and interest necessary to accomplish the foregoing ownership. The Channel Partner shall assist OutSystems, at OutSystems’ expense, to further evidence, record and perfect such assignments, and to perfect, obtain, maintain, enforce and defend any rights assigned. Nothing in this Agreement shall be interpreted to grant (by implication or otherwise) any license or rights to Channel Partner except as expressly stated herein.
6.2 Use of Trademarks/Trade Names. (a) Trademarks. During the Term of this Agreement, Channel Partner shall have the right to advertise the Product under OutSystems trademarks, marks, and trade names and in the promotion and distribution of the Product. In addition, the Channel Partner shall fully comply with all reasonable guidelines, if any, communicated by OutSystems concerning the use of OutSystems' trademarks. (b) Use. The Channel Partner shall not alter or remove any of OutSystems' trademarks affixed to the Product by OutSystems. Except as set forth in this Section 6.2, nothing contained in this Agreement shall grant or shall be deemed to grant to the Channel Partner any right, title or interest in or to OutSystems' trademarks. All uses of OutSystems' trademarks shall inure solely to the benefit of OutSystems and Channel Partner shall obtain no rights with respect to any of OutSystems' trademarks, other than the right to market and promote the Product as set forth herein, and Channel Partner irrevocably assigns to OutSystems all such right, title and interest, if any, in any of OutSystems' trademarks. At no time during or after the term of this Agreement shall the Channel Partner challenge or assist others to challenge OutSystems' trademarks or the registration thereof or attempt to register any trademarks, marks or trade names confusingly similar to those of OutSystems. Upon termination of this Agreement, Channel Partner shall immediately cease to use all of OutSystems' trademarks. OutSystems shall not use name, logo, and brand name of the Channel Partner, without Channel Partner’s prior written approval.
7.1 Use and Disclosure. During this Agreement and for a period of five (5) years following its termination, each Party shall hold in confidence and not use or disclose to any third party any Confidential Information of the other Party. Each Party agrees to take all reasonable steps to ensure that the Confidential Information is not disclosed or distributed by its employees, contractors or agents in violation of the terms of this Agreement.
7.2 Permitted Disclosures. Either Party may disclose Confidential Information of the other Party either (i) in response to a valid order by a court or other governmental or regulatory body, (ii) as otherwise required by law, or (iii) as necessary to establish the rights of either Party under this Agreement; provided such Party promptly notifies the other Party of such request and allows it the opportunity to object or to seek a protective order.
7.3 Non-Confidential Information. The Parties shall not be obligated under this “Confidentiality” clause with respect to Confidential Information that: (i) is or becomes a part of the public domain through no act or omission of the receiving Party; (ii) was in the receiving Party’s lawful possession without restriction prior to the disclosure and had not been obtained by the receiving Party either directly or indirectly from the disclosing Party; (iii) is lawfully disclosed to the receiving Party by a third party without restriction on the disclosure; or (iv) is independently developed by the receiving Party without access to the Confidential Information.
7.4 Destruction or Return. Except as otherwise authorized or required in furtherance of the purposes of this Agreement, promptly upon a request by the disclosing Party, the receiving Party will destroy (and so certify in writing) or return to the disclosing Party all Confidential Information and all documents or media containing any such Confidential Information and all copies or extracts thereof, provided that the receiving Party shall be permitted to retain copies of any computer records and files containing any Confidential Information which have been created pursuant to automatic archiving and back-up procedures, or retain a back-up copy of such Confidential Information as required by law, rule, regulation or internal compliance policies, in which cases such Confidential Information shall continue to be subject to confidentiality obligations even after termination of this Agreement.
8. TERM AND TERMINATION
8.1 Term of Agreement. The Term of this Agreement will be for one year from the Effective Date. This Agreement may be renewed for successive one-year terms by both parties agreeing in writing to such renewal until the termination date. Notwithstanding the foregoing, OutSystems reserves the right to modify or amend the Channel Partner Program from time to time. OutSystems shall notify the Channel Partner of such modifications or amendments to Channel Partner Program. If any such modification or amendment to the Channel Partner Program is unacceptable to Channel Partner, Channel Partner’s sole and exclusive remedy shall be to terminate this Agreement within thirty (30) days after such modification.
8.2 Immediate Termination. Either Party may immediately terminate the Agreement in cases of material breach of this Agreement by the other Party. For the sake of clarity, the non-payment of the Cloud Environment Fee by Channel Partner within the scheduled date is considered a material breach. In cases of exceptional circumstances either Party may evoke such termination, for: a) bankruptcy; b) death, retirement, illness, or incapacity of the other Party or key personnel and c) the acceptance of bribes and/or conviction for any criminal offense. OutSystems can also immediately terminate this Agreement as foreseen in sections 13.2 to 13.5 below.
8.3 Termination for Convenience. Either Party may terminate the Agreement, for any reason or no reason, and without any liability towards the other Party, by giving the other Party a thirty (30) day prior written notice.
8.4 Effect of Termination. Upon the termination of this Agreement for any reason: (a) the Channel Partner will immediately discontinue making any representations regarding its status as set forth in this Agreement and will immediately cease any activities related to this Agreement; (b) all amounts owed by either party to the other will become immediately due and payable; (c) any assigned prospects hereunder may be pursued by OutSystems or transferred to another Channel Partner in OutSystems' sole discretion. Termination or expiration is not an exclusive remedy and all other remedies will be available whether or not termination occurs.
8.5 Performance Period. Irrespective of the Term of this Agreement, the parties will set Channel Partner performance review periods, for which Channel Partner may earn specific incentives as set forth in the Channel Partner Program (“Performance Period”). The Performance Period will be set for one (1) year, commencing on the Effective Date. Except as otherwise specified in the Channel Partner Program, the Performance Period shall automatically reset for additional periods equal to the expiring Performance Period or one (1) year (whichever is shorter), unless either Party gives the other notice of non-renewal at least 30 (thirty) days before the end of the relevant Term or the Parties mutually agree on a different Term.
9. MUTUAL PROMOTION
9.1 Each Party shall provide the other with a commercially reasonable quantity of its marketing materials to best enable the other Party's sales and marketing teams to familiarize themselves with, and promote its Product and/or OutSystems Services, as applicable. If the Parties determine it to be mutually beneficial, they shall develop joint materials to promote both Parties' offerings with the costs of any such materials to be mutually agreed upon between the Parties. Neither Party shall create materials that refer to the other Party's offerings without first obtaining approval of said materials from the other Party.
9.2 The Parties shall consult with each other on at least an annual basis to review the effectiveness of the cross-promotion activities and to discuss, where applicable, other opportunities that might be available for the mutual benefit of the Parties.
9.3 Each Party will facilitate contacts and the dissemination of information between the Parties by providing the other with opportunities to present and demonstrate its offerings at the appropriate sales and marketing, technical and other meetings and conferences as may be mutually agreed.
10. DISCLAIMER OF WARRANTIES
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PRODUCT IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, EXPRESS OR IMPLIED OR STATUTORY OR OTHER WARRANTIES OR CONDITIONS, INCLUDING WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUTSYSTEMS DOES NOT GUARANTEE OR WARRANT THAT THE PRODUCT WILL PERFORM ERROR-FREE OR UNINTERRUPTED OR COMPLETELY SECURE OR THAT OUTSYSTEMS WILL BE ABLE TO CORRECT ANY PRODUCT ERRORS. THERE ARE NO EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
11. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, DATA OR DATA USE) ARISING FROM THIS AGREEMENT, WHETHER UNDER THEORY OF CONTRACT, TORT OR OTHERWISE. CHANNEL PARTNER AND OUTSYSTEMS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE PARTNER COMMISSIONS PAID BY OUTSYSTEMS TO CHANNEL PARTNER IN THE TWELVE MONTHS PRECEDING THE EARLIEST CLAIM UNDER THE AGREEMENT.
12.1 Indemnification by the Channel Partner. The Channel Partner will indemnify OutSystems and hold it harmless from and against all loss, damage, liability, cost or expense of any nature whatsoever, including, without limitation, any and all reasonable attorney’s fees and court costs, arising out of or in connection with (i) the inaccuracy or breach of any representation, warranty or obligation of the Channel Partner hereunder and/or (ii) the activities of the Channel Partner in connection with the promotion, sale or collection of payment of the Products in violation of this Agreement, law or any other duty or obligation of the Channel Partner.
12.2 Indemnification by OutSystems. In the event that a claim, demand, suit, or proceeding for the infringement of third party intellectual Property is made or intimated against Channel Partner in relation to the Software, OutSystems will defend and hold Channel Partner harmless against any such claim, demand, suit, or proceeding, as well as indemnify Channel Partner against any and all costs, expenses, damages or other losses suffered or payments made by Channel Partner in connection with the claim, demand, suit, or proceeding and any associated judgment or settlement (except to the extent that Channel Partner infringes such third party intellectual property rights as a result of a wilful or negligent conduct) provided in each case that Channel Partner gives prompt written notice, cooperation and assistance to OutSystems relative to any such claim, demand, suit or proceeding and provided further that Channel Partner gives OutSystems sole control of the defense and of any related settlement negotiations. If the Software becomes, or in OutSystems' opinion is likely to become, the subject of an infringement claim, OutSystems may, at its option and expense, either (i) procure the right to continue exercising the rights licensed, (ii) replace or modify the Software so that it becomes non-infringing and remains functionally equivalent, or (iii) terminate this Agreement. Notwithstanding the foregoing, OutSystems will have no obligation under this Section or otherwise with respect to any infringement claim based upon (i) any Application, (ii) any unauthorized use, reproduction, or distribution of the Software, (iii) any use of the Software in combination with other products, equipment, software, or data not supplied by OutSystems, (iv) in case of any use, reproduction, or distribution of any release of the Software other than the most current release made available by OutSystems, (v) any modification of the Software by any person other than OutSystems or its authorized agents or contractors, or (vi) compliance with certification standards.
13.1 Relationship of Parties. The Parties are independent contractors, and there is no employer-employee, agency, or joint venture relationship between the Parties. The Parties do not have any authority to bind the other Party by contract or otherwise to any obligation. Neither Party will represent to the contrary, either expressly, implicitly, by appearance or otherwise.
13.2 Compliance with the Laws. Channel Partner represents and warrants that it has obtained all required approvals of the government within the Territory in connection with this Agreement and that the provision of the services under this Agreement by the Channel Partner will comply with all applicable laws, including without limitation all applicable anti-corruption laws, anti-money laundering laws, antitrust laws, economic sanctions laws, export control laws, data protection and data privacy laws, and modern slavery and human trafficking laws. OutSystems shall have the right to terminate this Agreement, without notice and without liability, for any perceived or actual breach of this clause.
13.3 Export Compliance. Channel Partner will comply with all applicable export controls, trade sanctions, and import laws and regulations in its use and distribution of the Products, including without limitation and to the extent applicable the regulations of the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”) and the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”). Channel Partner will not, directly or indirectly, export or reexport, or knowingly permit the export or reexport of any Products, without any required government authorization, to any person or entity (i) located or resident in any country or territory subject to comprehensive U.S. trade sanctions or other significant trade restrictions (including without limitation, the Crimea Region of Ukraine, Cuba, Iran, North Korea, Sudan, and Syria) (“Sanctioned Countries”); or (ii) identified on any applicable restricted party lists (including without limitation the Specially Designated Nationals and Blocked Persons List, Foreign Sanctions Evaders List, and Sectoral Sanctions Identifications List, administered by OFAC, and the Denied Party List, Entity List and Unverified List, administered by BIS) (“Restricted Party Lists”). Channel Partner represents and warrants that it is not (i) a citizen or a legal person of or located in a Sanctioned Country, or (ii) identified on, or more than 50 percent owned by one or more parties identified on, a Restricted Party List. OutSystems shall have the right to terminate this Agreement, without notice and without liability, for any perceived or actual breach of this clause.
13.4 Anti-Corruption Compliance. Channel Partner acknowledges that it is familiar with and understands the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended (“FCPA”) and the U.K. Bribery Act of 2010 (“UKBA”) and agrees, to the extent applicable to Channel Partner, not to violate, cause OutSystems to violate, or knowingly let anyone violate the FCPA, UKBA, or any other applicable anti-corruption laws. Channel Partner agrees that no payment it makes will constitute a bribe, influence payment, kickback, rebate, or other payment that violates the FCPA, the UKBA, or any other applicable anti-corruption or anti-bribery laws. OutSystems shall have the right to terminate this Agreement, without notice and without liability, for any perceived or actual breach of this clause.
13.5 OutSystems Policies. Channel Partner will perform its obligations under the Agreement in compliance with applicable OutSystems rules, policies and regulations, now in effect or hereafter amended, or established by OutSystems from time to time, including but not limited to the OutSystems Business Partner Compliance Guide (“Policies”). Channel Partner will require its employees, agents, or consultants performing services in connection with this Agreement to comply with such Policies and will be responsible for any violation of such Policies by its employees, agents, or consultants. OutSystems shall have the right to terminate this Agreement, without notice and without liability, for any perceived or actual breach of this clause.
13.6 Assignment. This Agreement is not assignable or transferable by the Channel Partner without the prior written consent of OutSystems. Any attempt by the Channel Partner to assign or transfer this Agreement without such consent shall be void. OutSystems may assign or transfer this Agreement to a company from OutSystems’ group of companies or as a result of a merger or a sale of all or a substantial part of its assets. In the case of any permitted assignment or transfer of or under this Agreement, this Agreement or the relevant provisions, as well as the existing Orders, Partner Orders and Reseller Orders shall be binding upon, and inure to the benefit of, the successors, executors, heirs, representatives, administrators and assigns of the Parties hereto.
13.7 Force Majeure. No Party shall be liable for, or considered to be in breach of this Agreement on account of, any failure or delay in performance of any of its obligations hereunder (except for the payment of money) if such failure or delay is due to acts of God, fires, flood, storm, explosions, earthquakes, general Internet outages, acts of war or terrorism, riots, insurrection, intervention of any government or authority or any other reason where the failure to perform is beyond the reasonable control of and not caused by the negligence or intentional acts or omissions of the non-performing Party.
13.8 Audits. During the term of this Agreement and for a period of 3 years following its termination, either Party shall maintain and not delete books and records regarding this Agreement and/or Product. Either Party may, through quality audits, inspect and audit the other Party’s records to verify compliance with the rights and obligations under this agreement. Such audit may only occur once a year, following fifteen (15) business days prior written notice to the other Party. All costs in relation to any audit shall be borne by the Party carrying the audit. Parties agree to cooperate with the audit and provide the other Party with reasonable assistance and access to information. Any audit shall be performed during normal working hours in such a manner as to not interfere with the operations of the Party being audited. An audit shall not include access to internal policies, IT-systems or any other information not relating directly to the Agreement and/or Product.
13.9 Engagement of third parties by Channel Partner. The Channel Partner may not appoint or engage third parties in relation to this Agreement without the prior written consent of OutSystems.
13.10 No Solicitation. During the term of this Agreement and for a period of twelve (12) months thereafter, neither Party shall, either directly or indirectly, solicit the employment of any of the employees of the other Party. This promise shall be construed as an agreement independent, yet ancillary, of any other provision of this Agreement. However, the Parties agree that the restrictions set forth in the immediately preceding sentences shall not apply to any general solicitation directed to the general public.
13.11 Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to affect the intent of the Parties, and the remainder of this Agreement will continue in full force and effect.
13.12 No Waiver of Rights. The failure of either Party to enforce any of the provisions of this Agreement, or the failure to require performance by the other Party of any of the provisions of this Agreement, shall not be construed to be a present or future waiver of such provisions, nor affect the validity of either Party’s right to enforce such provision in future.
13.13 Entire Agreement. This Agreement, including all Orders, Partner Orders and Reseller Orders, constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. No amendment to supplement or modify of this Agreement will be binding unless in writing and signed by a duly authorized representative of both Parties. Channel Partner acknowledges and agrees that it has had the opportunity to review all the documents contained in a URL prior to executing this Agreement, which it can print for its internal records.
13.14 Interpretation. References to a provision, clause, section, Partner Order, Order or Reseller Order are to a provision, clause or section of, a Partner Order, an Order or a Reseller Order to, this Agreement. References to this Agreement include its Orders, Partner Order or Reseller Order (including reference to information contained in a URL and/or referenced policies and/or guides) and references to a part or paragraph are to a part or paragraph of an Order to this Agreement. Words importing the singular include the plural and vice versa. Words importing a gender include every gender. The words and phrases “other”, “such as”, “including” and “in particular” shall not limit the generality of any preceding words or be construed as being limited to the same class as the preceding words where a wider construction is possible.
13.15 Headings. The caption and the headings to clauses, sections, parts, paragraphs Partner Orders, Orders or Reseller Orders are inserted for convenience only and shall be ignored in interpreting this Agreement.
13.16 Agreement Drafted by all Parties. This Agreement, which the Parties have agreed to draw up in the English language, is the result of arm’s length negotiations between the Parties and shall be construed to have been drafted by all Parties such that any ambiguities in this Agreement shall not be construed against either Party.
13.17 Survival. Clauses and / or sections 6, 7, 10 and 11 this Agreement shall survive termination of this Agreement.
14. GOVERNING LAW, JURISDICTION AND NOTICES,
14.1 Contracting OutSystems Company, Governing Law and Jurisdiction. The applicable OutSystems entity with which Channel Partner is contracting under this Agreement, to whom Channel Partner should direct notices under this Agreement, the governing law applicable to this Agreement, including any lawsuit or disputes arising out of or in connection with it, without giving effect to any choice or conflict of law provision or rule, and which courts can adjudicate any such lawsuit, shall be determined based on where Channel Partner has its registered offices in the same way as defined for End-Customers at https://www.OutSystems.com/legal/governing-law-jurisdiction/.
14.2 Notices. Any notice, consent, approval, or other communication intended to have legal effect to be given under this Agreement (“Notices”) must be in writing and will be delivered: (i) by email or (ii) by registered mail. Unless otherwise provided herein, all Notices will be deemed effective on the date of receipt (or if delivery is refused, the date of such refusal) if delivered by registered mail and at 9.00AM of the next business day after the date of the transmission by email. Notices hereunder will be sent to the contact and (email and/or office) addresses set forth in the applicable Partner Order. Either Party may change the address to which Notices shall be sent by giving Notice to the other Party in the manner herein provided. Notices shall be written in English language.
14.3 Changes in Contact Details. The Parties shall notify each other of any change in their contact details with a prior of notice of at least 15 days with respect to the date of the envisaged change, which will only be effective after said notice.