OutSystems Channel Partner Agreement

This OutSystems Channel Partner Agreement (this “Agreement”) is entered into as of the Effective Date by and between “OutSystems” and the “Channel Partner”, (each is a “Party”, together they are the “Parties”).

WHEREAS, 

  • OutSystems wants to expand access to its Software solutions and Services;
  • Channel Partner desires to become a limited agent of OutSystems to refer and forward potential End-Customers of the Software and/or the Services (“Product”); and
  • Channel Partner desires to offer value-added services or products based on the OutSystems Product to its customers; and
  • Channel Partner desires to market OutSystems Product as an authorized independent, limited, non-exclusive agent of OutSystems pursuant to the terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the promises and mutual covenants contained herein the Parties agree as follows:

I – General Conditions

1. DEFINITIONS

1.1 In this Agreement, capitalized terms shall have the following meanings:

1.1.1Accepted Opportunity” means each Opportunity accepted by OutSystems per the provisions stated in Section 3 of this Agreement.

1.2 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.

1.2.1  Business Days” means Monday, Tuesday, Wednesday, Thursday and Friday which are not a holiday in the location of OutSystems’ registered office. 
1.2.2 Business Hours” means hours from 9:00AM up until 5:00PM in the location of the applicable OutSystems’ company registered offices. 
1.2.3 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 each Party’s proprietary software and computer operations, all code, inventions, algorithms, business concepts, workflow, business and technical information, the terms and pricing under this Agreement, and all information clearly identified or, by the nature of the information, reasonably should be deemed as confidential.
1.2.4 Channels of Distribution" means all commercial channels of distribution, including without limitation, retail, direct response and direct mail.
1.2.5 "End-Customer” means a business entity that has executed an agreement with OutSystems and has paid all fees due for the Product.
1.2.6 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.
1.2.7 Effective Date” means the date on which OutSystems and Channel Partner have executed this Agreement (or the date of the last signature).
1.2.8 Net Receipts” means the amounts actually received by OutSystems for the Software and/or the Services pursuant to the execution of an order with an End-Customer or Prospect associated with an Accepted Opportunity, less any taxes, and discounts, markdowns and other price protection actually given.
1.2.9 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 Order.
1.2.10 Partner Order” means the ordering documents defining partnership conditions, that are entered into between Channel Partner and OutSystems from time to time. Orders shall be deemed incorporated herein by reference.
1.2.11 OutSystems” means OutSystems Software em Rede, S.A., and all of its Affiliates.
1.2.12 Channel Partner Requirements & Benefits” means the document attached to the Partner Order defining the appropriate category of Channel Partner and special conditions.
1.2.13 Partner Fee” means the fee payable to OutSystems by Channel Partner as a requirement to be entitled as an OutSystems Partner.
1.2.14 Product” means the 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.
1.2.15 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.
1.2.16 "Prospect" means each business entity referred to OutSystems by Channel Partner as a potential customer for the Product.
1.2.17 Referral Fee" 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 special conditions attached hereto.
1.2.18 Services” means the non-exclusive information technology related consulting, training, implementation or customization services and/or advice to be provided by OutSystems to an End-Customer. Services do not include the provision of any OutSystems proprietary Software or related maintenance and support services.
1.2.19 Software” means OutSystems’ software products and solutions (including its Updates and Documentation).
1.2.20 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.
1.2.21 Term” means the term of this Agreement set off in Section 7 below.
1.2.22 Territory" means a geographically defined area in which this Agreement is valid, set forth in the Channel Partner Requirements & Benefits.
1.2.23 Validity Period” means the validity period of six (6) months following the date OutSystems has accepted the Opportunity as set forth in Sections 3.5 and 4.1 of this Agreement.

2. OBJECT

2.1 Appointment of Channel Partner. Subject to the terms of this Agreement, Channel Partner is hereby appointed as an independent agent with limited authority to solicit, on behalf of OutSystems, Prospects for the Product.
2.2 Rights Granted. Channel Partner shall have the non-exclusive right throughout the Territory, during the Term, to act as an independent agent for the purpose of promoting and advertising the Product to Prospects for subsequent sale by OutSystems in the Channels of Distribution.
2.3 Duties and Responsibilities. Channel Partner shall a) conduct its business in a manner that reflects favorably at all times 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 c) not bind OutSystems to any contract, representation, understanding, act or deed concerning OutSystems, the Product or any other service or product offered by OutSystems that is outside the scope of this Agreement; d) not make representations or warranties concerning the Product Channel Partner's agency relationship with OutSystems, unless such warranty or representation is authorized in writing by OutSystems. Channel Partner shall not make any representations or warranties concerning prices, terms or delivery, performance of the Product, 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 the specific restrictions applicable; (ii) use all 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) to review and fulfill the then current requirements and benefits of a particular Channel Partner Type as listed in the Channel Partner Requirements & Benefits. Failure to meet any of these duties and responsibilities may result in the immediate termination of this agreement.

3. CHANNEL PARTNER OBLIGATIONS / REFERRAL OF OPPORTUNITIES

3.1 Diligence. Channel Partner shall use commercially reasonable efforts to promote the marketing and distribution of the Product in order to realize the maximum Product sales in the Territory. Except as expressly set forth herein or otherwise agreed to 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.
3.2 Promotion and Advertising. Channel Partner shall: a) make its best efforts to promote the Product, its reliability and brand image; b) submit to OutSystems in advance for OutSystems’ prior approval, any marketing and promotional materials developed by Agency related to the Product.
3.3 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.com. OutSystems may, at its sole discretion, accept or reject any referred Opportunity and Channel Partner acknowledges that OutSystems may reject any Opportunity for any reason, including: (i) opportunities in existing 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 Opportunity that has already been the subject of a referral by another Channel Partner and has been approved by OutSystems. Once the Opportunity is accepted or rejected OutSystems will notify Channel Partner. 
3.4 Financial Responsibility. The Channel Partner shall inform OutSystems as to the solvency of the clients it refers to OutSystems. The Channel Partner shall not refer Prospects when it has reason to believe that such Prospects may be unable to honor their payment commitments, without giving prior warning to OutSystems.
3.5 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 as a 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" as defined in 1.2.22 and pursuant to provisions of paragraph 4.1. of this Agreement). Such exclusivity means 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. 
3.6 Opportunities Outside of Territory. In the event a Channel Partner finds an Opportunity to refer at a Prospect outside of the Channel Partner’s defined Territory, Channel Partner must obtain OutSystems prior written consent to engage with such a Prospect. 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.
3.7 Becoming an End-Customer. If the Prospect of an Accepted Opportunity has:

  • not previously entered into an agreement with OutSystems; 
  • not previously been accepted by OutSystems as an “Accepted Opportunity” being referred or introduced to OutSystems by any other person, agent or Channel Partner or directly engaged by OutSystems; and 
  • not previously been documented as an End-Customer (as defined above); and OutSystems finally enters 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 Referral Fees to Channel Partner as set forth below in Section 4 and in accordance with the special conditions of the Channel Partner Requirements & Benefits.

3.8 Dispute of Referrals. In the event a referral of an Opportunity is disputed among two or more Channel Partners, finders or other persons, OutSystems, alone and at its sole discretion, shall determine which party is entitled to a fee, if any, based mainly upon who firstly provided it with written notice of such Opportunity.
3.9 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 it, nor any of its directors, officers, or shareholders, have a conflict of interest with the Prospect or with OutSystems in making the Referral.
3.10 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, to any prospective customers or from appointing representatives, resellers, distributors and other marketing agents, without liability to Channel Partner.
3.11 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.
3.12 Export Compliance.  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 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”).  Partner will not, directly or indirectly, export or reexport, or knowingly permit the export or re export 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, Crimea, 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”). Partner represents and warrants that it is not (i) a citizen 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.
3.13 Anti-Corruption Compliance. 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 not to violate, cause OutSystems to violate, or knowingly let anyone violate the FCPA, UKBA, or any other applicable anti-corruption laws. 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.
3.14 OutSystems Policies.  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”).  Partner will require its employees, agents, or consultants performing services directly 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.

4. FEES AND PAYMENT TERMS

4.1 Fees. 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, as well as the Partner Fee, the Channel Partner is entitled to the Referral Fees as set forth in the Channel Partner Requirements & Benefits attached hereto. However, it is agreed that the Validity Period may be extended by OutSystems notifying about such extension to the Channel Partner 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 End-Customer, OutSystems shall provide the Channel Partner with a written report specifying the Referral Fee to which the Channel Partner is entitled for that calendar month. No report will be provided if no referrals occurred.
4.3 Payment terms. Referral Fee shall be based on the Net Receipts of the Product revenue recognized by OutSystems during the first Subscription year. Referral Fee is based on the rates as set forth in the Channel Partner Requirements & Benefits. The Referral Fee shall be payable to Channel Partner ultimately on the date that the report as described in Section 4.2 must be provided by OutSystems to the Channel Partner. Payment of the Referral Fee shall then be made by wire transfer.
4.4 Taxes. The Channel Partner will bear all taxes and duties which may be levied with respect to the payment of the Referral Fee by OutSystems.
4.5 Expenses. 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 order form to be issued by OutSystems.

5. INTELLECTUAL PROPERTY RIGHTS, OWNERSHIP AND TITLE

5.1 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. Channel Partner is not granted any rights to any trademarks or service marks of OutSystems. Channel Partner hereby makes all assignments and waivers necessary to accomplish the foregoing ownership.  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.
5.2 Modifications to Branding Guidelines. OutSystems reserves the right to modify the Branding Guidelines from time to time and shall give the other Party notice of any such modifications. 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 matter complies with the Branding Guidelines.
5.3 Use of Trademarks/Trade Names. (a) Trademarks. During the Term of this Agreement, Channel Partner shall have the right to indicate to the public that it is an authorized agent of OutSystems and 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, 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 (except to the extent expressly prohibited by applicable law) 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

6. CONFIDENTIALITY

6.1 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. 
6.2 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.
6.3 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.
6.4 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 it 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.

7. TERM AND TERMINATION

7.1 Term of Agreement. The Term of this Agreement will be for an indefinite period. Notwithstanding the foregoing, OutSystems reserves the right to modify or amend the Channel Partner Requirements & Benefits from time to time. OutSystems shall previously notify the Channel Partner of such modifications or amendments to Channel Partner Requirements & Benefits. If any such modification or amendment to the Channel Partner Requirements & Benefits 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.
7.2 Termination. Notwithstanding the previous paragraph, this Agreement may be terminated at the end of each calendar month by either Party by written notification at least:

  • One month in advance in the first year;
  • Two months in advance in the second year;
  • Three months in advance in the third year or any duration of the Agreement longer than three years.

Termination or expiration is not an exclusive remedy and all other remedies will be available whether or not termination occurs.

7.3 Immediate Termination. Either Party may immediately terminate the Agreement in cases of material breach of this Agreement by the other Party. 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; c) termination or other separation of Key Man; d) the acceptance of bribes, conviction of any criminal offense. 
7.4 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 then Assigned Prospects hereunder may be pursued by OutSystems or transferred to another Channel Partner at OutSystems' sole discretion.
7.5 Performance Period. Independently of the Term of this Agreement, the parties agree on setting Channel Partner performance review periods, for which Channel Partner may earn specific incentives as set forth in the Channel Partner Requirements & Benefits. The Performance Period will be set for one (1) year, commencing on the Effective Date. Except as otherwise specified in the Channel Partner Requirements & Benefits, the Performance Period shall automatically reset for additional periods equal to the expiring Performance Period or 1 year (whichever is shorter), unless either Party gives the other notice of non-renewal at least 30 days before the end of the relevant Term or the Parties mutually agree on a different Term. 

8. INDEMNIFICATION

8.1. 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 attorneys fees and court costs together, a "Loss", 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. 
8.2. 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 willful 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 in each case that OutSystems shall have the option, in its sole discretion, to undertake and conduct the defense of any suit so brought.

9. DISCLAIMER OF WARRANTIES 

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PRODUCT IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUTSYSTEMS DOES NOT GUARANTEE OR WARRANT THAT THE PRODUCT WILL PERFORM ERROR-FREE OR UNINTERRUPTED 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 AND FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.

10. LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR A BREACH OF A PARTY’S OBLIGATIONS UNDER CLAUSES (5) (“INTELLECTUAL PROPERTY RIGHTS, OWNERSHIP AND TITLE”), AND 6 (“CONFIDENTIALITY”), AND (8) (INDEMNIFICATION), 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. IN NO EVENT SHALL OUTSYSTEMS’ LIABILITY EXCEED THE REFERRING FEES PAID HEREUNDER.

11. FORCE MAJEURE 

Non-performance of either Party will be excused to the extent that performance is rendered impossible by strike, fire, flood, earthquake, government acts or orders or restrictions, failure of supplier, internet service provider failures or delays, denial of service attacks 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.

12. MISCELLANEOUS

12.1 Relationship of Parties. The Parties are independent contractors, and not employees or joint ventures of one another, and 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. 
12.2 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 an Affiliate 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 shall be binding upon, and inure to the benefit of, the successors, executors, heirs, representatives, administrators and assigns of the Parties hereto.
12.3 Sub-Agents. The Channel Partner may not appoint or engage third-parties or sub-agents without the prior written consent of OutSystems.
12.4 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.
12.5 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, expect to the extent such invalid provision relates to essential aspects of the Agreement.
12.6 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.
12.7 Entire Agreement. This Agreement, including all 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 or modification of this Agreement will be binding unless in writing and signed by a duly authorized representative of both Parties. 
12.8 Interpretation. References to a provision, clause, section, or Order are to a provision, clause or section of, or an Order to, this Agreement. References to this Agreement include its Orders 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.
12.9 Headings. The caption and the headings to clauses, sections, parts, paragraphs and Orders are inserted for convenience only and shall be ignored in interpreting this Agreement. 
12.10 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. 
12.11 Counterparts and Electronic Signatures. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same Agreement. The Parties hereby agree that this Agreement may be delivered by electronic signature (e.g. DocuSign, in portable data format – PDF - or in any other digital mean of identifying that party’s identity and approval of the counterpart) by any or both Parties in which case all Parties agree to rely on the receipt of such document so executed and delivered by electronic means as if the original had been received. The Parties hereby warrant and represent that such electronic signature is valid and legally binding in jurisdictions they may respectively be subject to, and they waive any potential right or claim against the validity of this Agreement on the basis of its electronic signature. 
12.12 Survival. Clauses and / or sections 5 to 7, 8, 9 to 13 of this Agreement shall survive termination, without prejudice to other obligations that, pursuant to the applicable law or to this Agreement, shall also remain in force after termination date. 

13. GOVERNING LAW, JURISDICTION AND NOTICES, 

13.1 Contracting OutSystems Company, Governing Law and Jurisdiction. The applicable OutSystems entity with which Partner is contracting under this Agreement, to whom 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 Partner has its registered offices in the same way as defined for End-customers at https://www.OutSystems.com/legal/governing-law-jurisdiction/
13.2 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 (as elected by the Party giving such notice): (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 9.00 am of the next business day after the date of the transmission by email.  Notices hereunder will be sent to the contact and addresses set forth in the signatures sections of this Agreement and/or in the applicable 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.
13.3 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. Any notices sent to the address, facsimile number or e-mail address which has been changed by the receiving Party but not communicated to the other Party as set forth in this section shall be considered provided pursuant to section 13.2.