Terms and conditions for Struct PIM solution partner agreement

1.1 

Solution Partner and STRUCT are independent and unrelated businesses and – unless otherwise specifically agreed in writing – neither Party shall have any authority to enter into binding agreements or assume obligations or liabilities on behalf of, for the account of or in the name of the other Party.

Solution Partner shall have no authority, whatsoever, to issue new licenses to use the STRUCT Software.

2.1 

Subject to the terms and conditions of the Agreement, STRUCT appoints Solution Partner as its business partner with the right to present itself as an authorised “STRUCT Solution Partner”.

As part of such appointment, STRUCT grants to Solution Partner a non-exclusive and non-transferable right to promote STRUCT Software to end-customers.

STRUCT agrees to provide Solution Partner with STRUCT's standard or localised customer documentation for the STRUCT Software ("Documentation") in standard electronic form. Unless otherwise agreed, the Documentation is provided in the Danish and/or English language.

Subject to the terms and conditions of the Agreement, STRUCT hereby grants Solution Partner a non-exclusive and non-transferable license to reproduce, modify and create (at Solution Partner’s own costs) derivative works of the Documentation and to promote, market and distribute such derivative works of the Documentation to Customers in conjunction with the sale of licenses to the STRUCT Software.

Solution Partner may reproduce and distribute the Documentation in hard copy as well as in electronic formats. The Solution Partner will provide to STRUCT copies of all derivative works of the Documentation in all formats as created by or for Solution Partner.

Without prejudice to any other provision contained herein, the Solution Partner shall and agrees to:

(4.1.a) 

use its best efforts to promote the STRUCT Software to relevant market segments. Solution Partner shall be entitled to promote the STRUCT Software by making reasonable and fair use of the STRUCT trade name and trademarks;

(4.1.b) 

present all marketing materials to STRUCT for approval in advance;

(4.1.c) 

promote and present itself as authorised “STRUCT Solution Partner”;

(4.1.d) 

assist in implementing the Struct Software at the customer following best practices;

(4.1.e) 

provide first (1st) and second (2nd) level support services and maintenance to customers, including product utilisation support, onboarding, system configuration, training, and other support activities;

(4.1.f) 

offer and provide consultancy services to customers in relation to the STRUCT Software, such as services related to solution design, development, implementation and project management;

(4.1.g) 

collect and submit relevant end-customer, STRUCT Software and market information to STRUCT;

(4.1.h) 

inform STRUCT without undue delay of any infringement or alleged infringement by any third party of any proprietary rights of STRUCT, which the Solution Partner becomes acquainted with;

(4.1.i) 

provide any other preparatory or auxiliary guidance and assistance to STRUCT as STRUCT may reasonably request from time to time.

All costs and expenses associated with Solution Partner’s fulfilment of its responsibilities hereunder shall be covered and paid by Solution Partner alone and shall be of no concern to STRUCT, unless the costs and expenses are to be considered as significant contract- and/or market-specific costs. Such costs are borne by STRUCT under the remuneration to Solution Partner.

The after-sale service support mentioned in clause 4.1 above shall be offered on a consultancy basis and thus, the Solution Partner is entitled to charge a consultancy fee to the customers for such support.

Solution Partner shall at all times conduct its business in a first-class manner and in all material respects in compliance with all applicable laws, rules, regulations, and other requirements of appropriate governmental authorities. Solution Partner shall comply with such specific regulations as may be necessary to maintain the protection of all copyrights, patents and trademarks of STRUCT, and shall be responsible towards STRUCT for any willful or grossly negligent infringement of such laws, rules, regulations and requirements.

Solution Partner agrees that full and undivided legal title and all beneficial rights to the STRUCT Software belong to STRUCT, and Solution Partner shall never be entitled to exercise any rights, whatsoever, to the STRUCT Software, except as specifically set forth herein. To the extent Solution Partner directly or indirectly bring about improvements, inventions, modifications, alterations or changes in the STRUCT Software, Solution Partner accepts that such improvements, inventions, modifications, alterations or changes and full and undivided legal title and all beneficial rights pertaining to the same are the sole property of STRUCT. Solution Partner further agrees to take all necessary actions whenever required or demanded by STRUCT to enable STRUCT to secure and exercise its rights to such intellectual property.

supply to Solution Partner free of charge and for Solution Partner’s internal usage only the STRUCT Software licenses and/or STRUCT Software access rights and the Documentation;

to provide third (3rd) level support to designated staff of the Solution Partner in relation to the use of any STRUCT Software for its intended purpose within its intended field of application, including guidance, setup, customisation and usage, online access to STRUCT’s electronic support system and analysis of collections and other outcomes produced by or created from the intended use of the STRUCT Software;

to make available to Solution Partner’s staff quality product training on terms and prices to be agreed upon;

promote Solution Partner as authorised “STRUCT Solution Partner”; and to

provide other auxiliary guidance and assistance to Solution Partner as Solution Partner may reasonably request from time to time.

Except as otherwise specifically agreed, all costs and expenses associated with STRUCT’s fulfilment of its responsibilities hereunder shall be covered and paid by STRUCT alone and shall be of no concern to Solution Partner.

Solution Partner must submit all orders for end-customer’s purchase of STRUCT Software to STRUCT in accordance with the ordering procedures and routines established, maintained and modified from time to time by STRUCT.

Upon STRUCT’s acceptance of the purchase order, STRUCT will supply end-customer with a valid customer specific STRUCT Software access right and license.

All supplies of STRUCT Software shall be deemed made by STRUCT and received by Solution Partner at STRUCT’s registered place of business.

STRUCT will pay the Solution Partner commission, as calculated in the order form. The commission also covers significant contract- and market-specific risks and costs which are not directly borne by STRUCT.

A share of approximately two percentage (2%) points of the commission is dedicated to covering contract- and market-specific costs incurred by the Solution Partner.

In the case that the Solution Partner’s annual depreciation of market-specific investments and the annual running contract- and market-specific costs are not fully covered by the respective dedicated share of the Solution Partner’s commission in the respective calendar year, STRUCT will reimburse the difference to the Solution Partner upon request and proof by the Solution Partner that the actual contract- and market-specific investments and costs were reasonable, justified and in line with the requirements set by STRUCT.

License fees are due and payable twelve (12) months after a licensee’s signing of the STRUCT PIM Software as a Service Subscription Agreement.

STRUCT shall pay the Solution Partner the calculated commission in accordance with the clauses and payment terms as stated in the order form for STRUCT PIM solution partner agreement.

All financial transactions and accounting between STRUCT and Solution Partner shall be made in the currency stated in the order form hereto.

The STRUCT PIM Software as a Service Subscription Agreement is and will at all times apply to and be incorporated into all STRUCT Software, and shall be incorporated into this Agreement by reference as if fully set forth herein. The STRUCT PIM Software as a Service Subscription Agreement includes clauses and provisions that provide for extensive limitations to the liability of STRUCT in relation to the STRUCT Software and any use that any licensee may make of the licensed STRUCT Software.

Solution Partner acknowledges and accepts that the liability of STRUCT, including STRUCT’s liability for third party claims, in relation to any of the STRUCT Software shall be restricted and limited towards Solution Partner in the same way and to the same extent as STRUCT’s liability is restricted and limited towards any customer or licensee as set forth in STRUCT’s then applicable STRUCT PIM Software as a Service Subscription Agreement.

The Agreement shall commence on the Effective Date. The Agreement shall remain in full force and effect until terminated by a Party.

Either Party may terminate the Agreement for convenience to the end of a month by giving no less than six (6) months’ prior written notice to the other Party. Notwithstanding the foregoing sentence, Solution Partner cannot terminate the Agreement until after expiry of an initial term of twelve (12) months.

Notwithstanding any other right of termination to which either Party may be entitled pursuant to the Agreement upon the occurrence of one or more of the following events of default, the Party hereto not in default shall have the right to terminate the Agreement in writing, effective immediately upon the occurrence of the event indicated or the running of any prescribed period, unless otherwise dictated by mandatory law:

if either Party fails to pay any amount payable to the other Party hereunder when due, and such default continues for more than fifteen (15) days after dispatch of written notice thereof to the Party in default; or

if either Party materially breaches any of the terms of the Agreement and (if the breach is remediable) does not remedy such breach to the satisfaction of the other Party within thirty (30) days after dispatch of notice of the same; or

if a Party enters into negotiations for voluntary arrangements with creditors or compulsory arrangement with creditors or applies for reconstruction or is administered in bankruptcy; or

if Solution Partner pledges any of its rights or interests granted under the Agreement to any creditor or other third Party without the prior written consent of STRUCT; or if

Solution Partner during the term of the Agreement:

dissolves, voluntarily liquidates or winds up its business; or

merges or consolidates with or into any corporation or corporations; or

otherwise directly or indirectly sells or disposes of all or substantially all of its business or assets.

Upon termination of the Agreement for any reason, all rights and licenses granted to Solution Partner hereunder shall terminate, and the termination shall be effected as set forth in the clauses 11.2 – 11.4 hereunder.

Solution Partner shall:

obtain from all its staff and subcontractors and shall promptly destroy all copies of the STRUCT Software, the license certificates, the Documentation and related materials in its possession and shall return and deliver to STRUCT all other proprietary or confidential materials belonging to STRUCT;

cease using the trademarks and trade names of STRUCT; and

immediately cease all promoting activities involving the STRUCT Software.

STRUCT shall have the right to require from Solution Partner that Solution Partner continues to perform support services towards the existing licensees of the STRUCT Software, which have hitherto been served by Solution Partner, for a period of up to twelve (12) months following the date of termination. If STRUCT requests such extension of support services from the Solution Partner, STRUCT shall continue to make the necessary support and Documentation available to Solution Partner to permit Solution Partner to continue to service the existing licensees. The termination of the Agreement shall not affect the right of Solution Partner to continue to deliver support and other services (in its own name and for its own account) to the licensees of the STRUCT Software.

Solution Partner accepts that it has no right to claim compensation or payment of goodwill or damages from STRUCT as a result of STRUCT’s termination of the Agreement for convenience, and Solution Partner hereby waives any and all of such rights.

Neither Party shall be in breach of the Agreement or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control, including war, mobilization, riots and unrest, terrorist attacks, natural disasters, strikes and lockouts, viruses, hacking, spamming, crashes or other unforeseen and extraordinary strain on the IT systems or telecommunications networks, injunctions by public authorities and rights holders, or other circumstances for which the Party has no direct control. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for sixty (60) days, the Party not affected may terminate the Agreement by giving ten (10) days’ written notice to the affected Party.

In the event of a Party’s breach of the Agreement, including a Party being in default pursuant to clause 10.3 hereof, the other Party may claim compensation under the general rules of compensation in Danish law.

Neither Party is at any time obligated to compensate the other Party for any indirect or consequential loss, including but not limited to loss of profits, loss of business, loss of expected earnings and/or savings, loss of goods, loss of use, loss of data, expenses for remedial actions, or damages to or errors in data or any loss because of covering purchases being made.

STRUCT’s total aggregate liability in contract, tort (including without limitation negligence or breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement shall in all circumstances be limited to forty thousand Danish Kroner (DKK 40 000).

The Parties (including a Party’s officers, staff and subcontractors) shall assume an absolute and unconditional duty of non-disclosure vis-à-vis any third party concerning any matter that in a broad sense concerns the activities of the other Party and which the Party has obtained knowledge about due to the performance of the Agreement.

Solution Partner (including its officers, staff and subcontractors) shall be obliged to treat the trade secrets and other property of STRUCT in the strictest confidence and with due care. Solution Partner shall not be entitled to publish, surrender to any third party or in any other way make unauthorized use of the trade secrets and other property of STRUCT without the prior written consent of STRUCT. Trade secrets and other property of STRUCT are deemed to include, but not be limited to, inter alias, any intellectual property of STRUCT, including any design, pattern, drawing, technical specification, code, model, product, program, project, plan, marketing or customer data, correspondence, accounting records, memos, minutes, contracts, lists, prints and information concerning security measures, irrespective of whether or not such material is found on paper, tapes, disks or any other electronic medium.

The duty of non-disclosure pursuant to this clause 14 shall continue and remain in full force after the termination of the Agreement.

Solution Partner shall not assign, transfer, mortgage, charge, subcontract or delegate this Agreement or any part hereof without the prior written consent of STRUCT, provided, however, that Solution Partner may assign and transfer the Agreement to one or more of its affiliates, but only if such assignment will not in any way adversely affect the performance of the Agreement.

STRUCT shall have the right to assign, transfer, mortgage, charge, subcontract or delegate the Agreement without the prior written consent of Solution Partner.

Except as otherwise provided herein, the Agreement shall bind and inure to the benefit of the Parties and their respective successors and assigns.

The Agreement and any dispute or claim arising out of or in connection with shall be governed by and interpreted in accordance with the laws of Denmark by the Danish courts in the jurisdiction in which the STRUCT’s headquarter is located.