3.1 Demonstration/Testing/Training: Licensor hereby grants to Partner a non-transferable, non-exclusive, limited, annual term license, within the Territory, to use the Software, a machine image provided to Partner by Licensor that includes the Software, and any materials made available pursuant to the Website solely for: (i) demonstration of the Software to prospective customers (other than any competitors of Licensor), (ii) internal testing purposes to determine the suitability of the Software for Partner’s prospective customers, and (iii) training purposes for Partner’s personnel, in accordance with the terms and conditions of the Agreement. The internal use license stated in the Master Terms does not apply to Partner and no right to use, copy, duplicate, or display the Software is granted, except as expressly provided herein.
4.1 Partner shall not (directly or indirectly, in whole or in part), nor contractually permit any End User to: (a) lease, rent, loan or commercially share (including time-share or electronically transmitting over a network to a third party) or otherwise use the Software for purposes of providing a service bureau; (b) use any Software which is not listed in an Order Form or Partner Registration Form even if such unlicensed software is made available to Partner as part of Licensor’s general delivery mechanisms; (c) use Production versions of third party products embedded in Software, if any, for any use other than the intended use of the Software; (d) combine the Licensor products with programs licensed under any version of the GNU General Public License or GNU Affero General Public License (collectively, “GPL”) in any manner that could cause, or be interpreted to cause, the Software or any modification thereto to become subject to the GPL or create any obligations or rights; (e) transfer or assign possession or allow use of any copy of Software to another party other than as specifically permitted under the Agreement; (f) use or access any embedded or bundled component of Software on a stand-alone basis where such embedded or bundled component is provided to Partner for the sole purpose of enabling the functionality of such Software; (g) release the results of benchmark testing using the Software; and (h) modify, translate, reverse engineer, decrypt, decompile, disassemble, create derivative works based on, or otherwise attempt to discover the Software source code or underlying ideas, techniques or algorithms, including the review of data structures or similar materials produced by the Software. Partner may engage in such conduct as is necessary to ensure the interoperability of the Software as required by law, provided that prior to commencing any decompilation or reverse engineering of any Software, Partner agrees it shall observe strict obligations of confidentiality and provide Licensor reasonable advance written notice and the opportunity to assist with and/or conduct such activity on Partner’s behalf and at Partner’s expense. If proprietary source code is included as part of the standard delivery of the Software and is not subject to open source license terms, use of such source code shall be governed by the terms of the Agreement.
5.1 Licensor Marks: Licensor grants to Partner a non-transferable, non-exclusive, worldwide, limited annual term license to use and display Licensor’s Marks, solely for purposes related to the performance of this Agreement. Partner may use authorized copies of the Sapper Partner Logo during the term of this Agreement. Partner may not use the corporate Sapper logo, except for on Partner’s dedicated partner marketing website that must clearly identify that Partner is acting as a Sapper Partner and that shall not mislead customers to think that Partner is an exclusive or preferred Sapper Partner. Partner is not permitted to use the corporate Sapper logo outside of the aforementioned context. Partner shall not modify, stylize, translate or combine any Licensor Mark with other trademarks, service marks, domain names, logos or source indicators without the prior written approval of a duly authorized officer of Licensor, which may be withheld in its sole discretion. If at any time Licensor determines that any advertising or promotional materials used by Partner fail to meet the specifications and quality standards of Licensor, and that such failure may impair or diminish the goodwill associated with the Licensor Marks, Licensor may give written notice thereof to Partner, whereupon Partner shall promptly correct such failure or cease to use such materials. Partner shall not register any Licensor Marks, domain names, or social media account names that incorporate or include, in whole or in part, any Licensor Marks (or any trademarks confusingly similar to any Licensor Marks) in any jurisdiction, whether with a governmental agency, domain registrar or social media provider, and shall not challenge, directly or indirectly, the same. All use of Licensor Marks by Partner shall inure to the benefit of Licensor.
5.2 Partner Marks: Licensor may, in its discretion, refer to Partner in advertising and promotional materials in connection with the sales and promotion of Licensor products and services. Permitted uses of the name or logo of Partner and/or the name or logo of Partner’s products include: (i) lists of Licensor Partners, (ii) general marketing materials listing all Licensor partners, (iii) framing and displaying at Licensor offices, (iv) reproducing in a professionally prepared graphic for display at sales and promotional events, and (v) display as a link to Partner’s website on Licensor’s public website. Partner hereby consents to Licensor’s display of Partner’s logo on Licensor’s website portals and/or Licensor internal presentations, and as otherwise set forth in this section. Partner shall provide Licensor with digital files and artwork of Partners logo for purposes set forth in this section. All use of Partner Marks by Licensor shall inure to the benefit of Partner.
5.3 Each party agrees that in no event shall a Mark be used in any disparaging, unlawful, or derogatory material or in a manner that may diminish or otherwise damage the goodwill or jeopardize or render less valuable a party’s Marks or any associated goodwill. Each party will comply with the branding criteria and the quality control standards and trademark and trade name usage guidelines that are provided by a party in writing from time to time and in the case of Licensor’s Marks as published on its public website. Nothing contained in the Agreement shall be deemed to grant either party any right of ownership, goodwill, title or interest in the other party’s Marks.
6. Lead Programs
6.1 Partner may refer Qualified Leads to Licensor by submitting a Lead Form to Licensor. Only Qualified Leads that are transmitted by Partner on a Lead Form and received by Licensor before the termination of the Agreement, and which subsequently result in the execution of a license agreement for a Licensor product within six (6) months of the date the Lead Form was executed and accepted by Licensor, will be eligible for an MDF credit or referral fee.
6.2 Following Licensor’s receipt of a Lead Form, Licensor will accept or reject the Qualified Lead within ten (10) business days. Licensor’s failure to respond constitutes a rejection of the Lead Form.
6.3 Upon execution of an End User License Agreement between Licensor and the applicable End User, acceptance of the Licensor products by the End User, and receipt of payment by Licensor from the End User and in the case of referral fees, when Licensor recognizes such payment for accounting purposes as a corporate license or Subscription booking, Partner shall earn the Marketing Co-Funding credit or referral fee as agreed and as set forth in the Lead Form.
6.4 Marketing Co-Funding: If Marketing Co-Funding is mutually agreed upon, the Marketing Co-Funding credit may not be used to pay for any license or services (except for training services) fees or Partner Program fees. To utilize Marketing Co-Funding credits, Partner shall request in writing to the applicable Licensor representative when Marketing Co-Funding credits will be applied. The amount, timing, and applicability of Marketing Co-Funding credits to fees shall be determined by Licensor in its sole discretion and Licensor reserves the right to limit the amount of Marketing Co-Funding credits Partner may utilize in a three-month period. Marketing Co-Funding credits have no cash value and in no event shall any Marketing Co-Funding credits be converted into cash payments to Partner. The applicability of Marketing Co-Funding credits is as set forth in the then current program requirements available on the Website.
6.5 Referral Fee: A referral fee shall be equal to the percentage mutually agreed upon and as set forth in the Lead Form. Any percentage upon which a referral fee is based shall be calculated from the net recognizable license revenue from license fees received by Licensor from the End User for the Software or, in the case of Software Services or Hosted Services, the initial annual contract value of the Subscription or license fee paid by the Customer. Notwithstanding the foregoing, and unless otherwise agreed by the parties in a properly executed Lead Form, in no event shall the referral fee for any Qualified Lead exceed $100,000. All referral fees are net of unrecoverable sales, trade discounts, rebates, commissions or royalties to third parties, sales or value added taxes, goods and services, consumption, withholding, excise and any other similar taxes, import duties and similar governmental charges, and shipping charges (including customs duties), but excluding any taxes imposed on Licensor’s income. There will be no referral fees paid on Maintenance, Consulting, or other services provided by Licensor. In the event that either party must team with a third-party on a Qualified Lead in order to complete the transaction, the referral fee paid by Licensor to each Partner may be reduced proportionately. Any reductions made will be on a pro-rated amount based on the percentages originally agreed to for each referring party.
7. Partner Warranties and Indemnity
7.1 Partner represents and warrants it has the corporate power and authority to enter into the Agreement.
7.2 Partner shall defend and indemnify Licensor against all cost and damages (including reasonable attorney’s fees) with respect to any suit, matter, claim, allegation or proceeding relating to: (a) any action brought against Licensor by End Users of Partner or other persons relating in any way to Partner’s activity hereunder, (b) the Software which has been altered, modified or otherwise changed by Partner, (c) any representations or warranties made by Partner to a third-party regarding the Software, other than as provided in the Documentation or approved by Licensor in advance in writing, or (d) any violation by Partner of the United States Foreign Corrupt Practices Act or any similar laws in countries where Partner performs under the Agreement, provided that Licensor: (i) promptly notifies Partner in writing of such claim, and (ii) gives Partner full control, authority, information and assistance (at Partner’s expense) for the defense of same and for all negotiations for any settlement or compromise.
8. Term and Termination
8.1 The Agreement starts on the Effective Date as set forth in the initial Order Form or Partner Registration Form and remains in effect for a period of one (1) year, unless such license or the Agreement is terminated as provided in the Master Terms. Subject to Licensor’s review of Partner’s participation in the partner program in the preceding year Licensor may decide torenew the Agreement for additional one (1) year periods, including changing the partnership category for the subsequent Term (such determination(s) shall be at Licensor’s sole discretion), subject to payment by Partner of the applicable annual fees.
8.2 Licensor may discontinue any Software or Maintenance on sixty (60) days written notice to Partner or such shorter period to which Partner may agree (such agreement not to be unreasonably withheld), provided that Licensor shall continue to make such Software and support available to Partner during the notice period.
8.3 Upon termination of the Agreement or a license granted under the Agreement, Partner shall (i) cease using the applicable Software, Licensor Mark and related Confidential Information of Licensor, and (ii) return or deliver to Licensor a written certification signed by a corporate officer of Partner within thirty (30) days after termination that Partner has destroyed, the Software, Documentation, related Confidential Information of Licensor, and all copies thereof, whether or not modified or merged into other materials.
8.4 Termination of the Agreement does not (i) terminate an End User license grant or (ii) relieve the parties from their prior and continuing obligations under an Order Form or Partner Registration Form or the Agreement, including without limitation all payment obligations relating to any End User License Agreement entered by Partner prior to such termination. The terms of the Order Form or Agreement survives as necessary to facilitate Partner’s remaining Maintenance obligations for any End User’s remaining annual Maintenance period, which has been pre-paid to Licensor prior to termination, provided that termination was not a result of a material breach of the Order Form or Partner Registration Form or the Agreement by Partner
9.1 Partner shall not make any representations or warranties regarding the Software other than as provided in the Documentation.
9.2 Partner shall appoint an employee who will be a single contact and shall be responsible for managing the relationship contemplated herein. This contact shall coordinate communication with Licensor and promote the success of Partner in the marketplace.
9.3 Partner shall have no authority, express or implied, to assume or create any obligation on behalf of Licensor and shall have no authority to represent Licensor in any other capacity than as expressly herein provided. The Agreement shall not be interpreted to create an agency or consignment relationship, and neither party is a partner, employee, agent or joint venture partner of, or with, the other. The rights and obligations of Partner under the Agreement are personal to Partner. Unless specifically agreed to in writing by Licensor, Partner shall not be entitled to use any agents or third parties for any obligations hereunder.
9.4 Partner shall maintain complete and accurate files and books and records of account with respect to all of its activities hereunder and all transactions relating to the Software. Such records will be maintained for a period of at least two years after termination or expiration of the Agreement.
9.5 If a Licensor audit as permitted under the Agreement reveals that there is a discrepancy of greater than five percent (5%) of any amount due to Licensor, then Partner shall be responsible for the cost of the audit, plus interest to be accrued as of its original due date on the amount of the discrepancy.
9.6 If Partner uses open source software or any other third party software not supplied by Licensor in conjunction with the Software, Partner must ensure that its use does not: (a) create, or purport to create, obligations of use with respect to the Software; or (b) grant, or purport to grant, to any third party any rights to or immunities under Licensor’s intellectual property or proprietary rights in the Software.
9.7 If the European Union’s General Data Protection Regulation (EU/2016/679) (GDPR) applies to Protected Data of third parties that Partner submits to Licensor in accordance with a sales opportunity registration program, then the Licensor’s Controller to Controller Data Processing Exhibit located at https://sapper.ai/contractor-controller-to-controller-addendum/.