Sales Agreement. between

Transcription

1 Sales Agreement between Paessler AG The Network Monitoring Company Thurn-und-Taxis-Str. 14, Nuremberg hereinafter referred to as the Manufacturer and hereinafter referred to as the Authorized Reseller The following contract has been concluded for the distribution of the Manufacturer s products. Valid from July 2016 PAGE 1 OF 6

2 Preamble The Manufacturer is the owner of the software PRTG Network Monitor (hereinafter referred to as the Products ), and distributes this, in Germany in particular. It is interested in expanding the sale of the Products in the Contractual Territory and to further promote market penetration in the Contractual Territory (Annex A). The Authorized Reseller is interested in taking responsibility for further marketing of the Products in the Contractual Territory, as desired by the Manufacturer, and aims to expand sales for the Products through intensive management of the channel and professional consulting. The Manufacturer shall sell the Products to the Authorized Reseller who shall in turn sell them to end customers. This being the case, the parties agree to the following: 1 Object of Agreement 1. The object of the Agreement is the sale of the Products by the Authorized Reseller in the Contractual Territory within the Authorized Reseller existing relationships to end customers, as well as to new end customers to be acquired by the Authorized Reseller. Authorized reseller may sell the Products within the Manufacturer s existing end customer s relationships as well. 2. The Manufacturer grants the Authorized Reseller a non-exclusive and non-transferable right to market the Products in the Contractual Territory for the duration of this Agreement. The Contractual Territory is attached to this Agreement in Annex A. The Manufacturer reserves the right to unilaterally amend the Contractual Territory at any time while complying with 3 months notification period. 3. To market is defined by the parties as the purchase of the Products by the Authorized Reseller from the Manufacturer (or a distributor) and the resale of these Products to end customers. 4. The Manufacturer shall deliver the products to the Authorized Reseller for sale following an order against payment of the stated purchase price. The contract is concluded through an order confirmation by or in writing. 5. The delivery of the Products occurs via download of the software and, if necessary, provision of the licence/activation key necessary for use by the end customer. The user documentation and software description (hereinafter referred to as the Documentation ) shall be delivered electronically in English. The transfer occurs in machine-readable format (object code). Provision of source code is not necessary. 6. The Authorized Reseller shall conclude licence purchase agreements with the respective end users. The use of the software by end customers shall be subject to the licence conditions attached to this Agreement in Annex C. The Authorized Reseller shall forward these licence conditions by the end customers. 7. The Manufacturer is entitled to market the Products itself, i.e. to sell the Products to end customers, resellers and distributors within the Contractual Territory. 8. Written permission from the Manufacturer is required in advance for the active sale of Products in territories that have been reserved by the Manufacturer or other Authorized Resellers. 9. The Manufacturer s General Terms and Conditions apply to Products acquired by the Authorized Reseller from the Manufacturer in their respective, applicable version. These are attached to this Agreement in Annex C. Any conflicting General Terms and Conditions from the Authorized Reseller shall not be the object of the purchase contract between the Authorized Reseller and the Manufacturer. PAGE 2 OF 6

3 2 Duties and Obligations of the Authorized Reseller 1. The Authorized Reseller must protect the interests of the Manufacturer with the due diligence of a prudent businessman. In particular, he must make every effort to technically and commercially look after and supply to the end customers to be looked after by it, to expand business with them, to manage its own acquisitions and to maintain an appropriate level of its own sales activites. 2. The Authorized Reseller must take all necessary measures to keep the professional qualifications of its employees at the highest level. 3. The Authorized Reseller shall act independently on the market. At the request of the Authorized Reseller, the Manufacturer may provide additional support in the marketing field, however, the Manufacturer is not obliged to comply with this request. Should the Manufacturer provide said support, the parties shall determine in each individual case whether the additional support in the marketing field shall be provided free of charge by the Manufacturer, or whether additional remuneration should be agreed upon. The support from the Manufacturer may be limited to a financial grant for the Authorized Reseller`s expenses. The parties may also conclude a separate Agreement for this in individual cases. 4. The Manufacturer grants the Authorized Reseller a non-exclusive and non-transferable right to duplicate promotional material for the duration of this contract, to the extent that this is necessary for fulfilling the Authorized Reseller s duties and insofar as the reproduction of such materials does not infringe upon the property rights of third parties. The Authorized Reseller undertakes not to copy any text, images or other information from the Manufacturer s website which is not expressly designated for official use (e.g. in the marketing toolbox, the partner portal, etc ), to use for its internet presence unless the Manufacturer has granted explicit permission in writing prior to the use of such information. 5. The Authorized Reseller shall provide the Manufacturer with detailed monthly reports on its sales and marketing activities in machine-readable format. 6. The Authorized Reseller shall respect the Manufacturer s Partner Program attached to this Agreement in Annex D. 7. If the Authorized Reseller breaches its obligations as stated in this Agreement, the Authorized Reseller is obligated to pay damage compensation to the Manufacturer according to the respective legal provisions. 3 Obligations of the Manufacturer 1. The Manufacturer undertakes to support the Authorized Reseller in its activities to the best of its ability and to provide all documents necessary for the execution of the tasks defined in the Agreement immediately and free of charge. 2. The Manufacturer must provide the Authorized Reseller with adequate promotional material free of charge. 3. The Manufacturer grants the Authorized Reseller a non-exclusive, non-transferable right to use the trademark rights of the Manufacturer for the sale of the Products in the Contractual Territory. This right may be revoked at any time. The Authorized Reseller is not permitted to use the trademark rights of the Manufacturer for search engine marketing (e.g. Google Adwords) without receiving explicit written permission from the Manufacturer in advance. 4. The Authorized Reseller is not permitted to create or use a domain or subdomain in which the Manufacturer s trademarks are included in the domain/subdomain name. The Authorized Reseller is obligated to cease any use of the trademark rights according to 3 (3) upon PAGE 3 OF 6

4 termination of the Agreement, regardless of the reason for termination and, at the choice of the Manufacturer, shall either destroy or return all items bearing the Manufacturer s trademark free of charge. 5. The Manufacturer undertakes to inform the Authorized Reseller regularly and promptly in regard to the following points: New products and applications Changes and modifications to the Products Practical examples, selling points, promotional material Findings from its product monitoring obligation, in particular evidence of any dangers that might be caused by the Products 4 Prices/Payment Terms 1. With regard to prices The Paessler Partner Program between the parties is applicable. 2. Payment for the Products shall take place exclusively via a transfer or credit card. The invoice from the Manufacturer is due for payment immediately upon receipt. Other payment methods, such as by cheque, are not permitted. 3. Further payment methods as well as the Manufacturer s bank details can be found in Annex B of this Agreement. 5 Liability 1. The Manufacturer shall assume unlimited liability for: injury to life, limb and health due to negligent or wilful breach of duty by the Manufacturer s legal representatives or vicarious agents; all damages based on intentional or grossly negligent contractual breaches; and fraud by the Manufacturer s legal representatives or vicarious agents. 2. The Manufacturer shall also be liable for damages caused by simple negligence, to the extent that such negligence concerns the breach of important contractual obligations whose fulfilment is of particular significance for achieving the aim of the Agreement (cardinal obligation). However, the Manufacturer is only liable if the damage is typically associated with an Agreement of this type and is foreseeable. In the event of a negligent breach of non-significant, accessory contractual obligations, the Manufacturer shall not usually be liable. Any further liability, in particular for any damage not affecting the delivered goods themselves, for loss of profit or other financial losses, is excluded. 3. Any additional liability shall be excluded regardless of the legal nature of the asserted claim. Should the liability of the Manufacturer be excluded or limited, this shall also apply to personal liability on the part of their employees, representatives and agents. 4. The Authorized Reseller must inform the Manufacturer of all defects and other complaints from the customers immediately. 6 Terms of Agreement and Termination 1. This Agreement enters into force upon its signing by both parties and shall be concluded for an indefinite period. The Agreement can be terminated by either party with a notice period of three months to the end of a quarter. 2. Notice of termination must be submitted in written form. 3. The right of both parties to terminate the Agreement without notice and with good cause remains unaffected. Good cause for the termination of this Agreement is, for example, late payment by the Authorized Reseller. PAGE 4 OF 6

5 7 Conclusion of the Distribution Relationship/ Compensation 1. Upon termination of the contractual relationship, the Authorized Reseller is obligated to immediately return all documents provided by the Manufacturer according to this Agreement, unless they have been expended according to the provisions of the Agreement. 2. The Authorized Reseller s right to market the Products in the Contractual Territory expires with the final termination of the contractual relationship. 8 Confidentiality The parties undertake to maintain strict confidentiality regarding all knowledge which is acquired for the term of the Agreement regarding internal processes, in particular business and operational secrets belonging to the other party, as well as the content of this Agreement. This confidentiality obligation shall remain in effect even after the termination of the contractual relationship. 9 Provisions for the use of Trademarks Each contracting party undertakes to adhere to the written guidelines from the other contracting party regarding the use of trademark rights. This concerns in particular the guidelines for the Manufacturer s trademark rights, which can be found under partners/branding. 10 Choice of Law/Place of Fulfilment 1. The contract is in accordance with German law. German law shall also apply to any disputes arising under this Agreement. 2. The place of fulfilment and the exclusive place of jurisdiction for all disputes arising under this Agreement is the Manufacturer s headquarters, to the extent permitted by law. 11 Other Provisions 1. If any provision of this Agreement is or becomes ineffective, this shall in no way affect the validity of the remaining provisions of this Agreement. The invalid provision shall be replaced by a valid provision that best reflects its intended economic purpose. The same shall apply in the event of any gap or loophole in this Agreement. 2. No subsidiary agreements to this Agreement have been arranged. Changes and additions must be made in written form to be considered effective. This also applies to any agreement to waive the requirement for written form. 3. All rights and obligations under this Agreement shall pass to any possible legal successor of the respective party. Paessler AG Signature Date Authorized Reseller Signature Date Name and Job Title (Please print) Name and Job Title (Please print) PAGE 5 OF 6

6 Annex A Contractual Territory Annex B Bank Details Wiring Instructions: To make payment to Paessler AG using a Bank Wire Transfer you will need the following information: Postbank Nuremberg, Germany Account Number: Banc Code: BIC: PBNKDEFF IBAN: DE OBI: **Please enter the following references:** Paessler AG Order Number or Paessler AG Invoice Number Payment must be made in the currency specified on the invoice (either USD or EURO). Annex C General Terms and Licensing Conditions Annex D Please refer to The Paessler Partner Program /EN/ PAGE 6 OF 6