Standard Partner Agreement

Agreement

“ENSCAPE Standard Partner Program”

 

This standard partner program agreement (the “Agreement”) is a contract between you (“Reseller”) and Enscape GmbH, a German limited liability company, with its principal place of business at An der Raumfabrik 33b 76227 Karlsruhe (“Enscape”), giving you permission to sell Enscape’s software (the “Product”), subject to the terms and conditions of this Agreement and the EULA (as hereinafter defined). Enscape and Reseller hereinafter each a “Party” and, together, the “Parties”.

ACCEPTANCE OF TERMS

By agreeing to this Agreement, you accept (i) to agree to and be bound by the terms of Enscape’s End User License Agreement (“EULA”), as amended from time to time, and (ii) to resell the Product exclusively to end-users (“Licensees”, as defined in the EULA) (“Customers”) under the terms of the EULA. You understand and agree that each Customer acquiring a license in the Product will have to agree to the EULA. The presently valid version of the EULA can be found here.

 

RIGHTS GRANTED

Subject to the terms and conditions of this Agreement and the EULA, Enscape hereby grants to Reseller, for the Term of this Agreement, a limited, non-exclusive, non-transferable, non-sublicence­able, revocable right and license to:

  1. Market and (re-)sell the Product as a non-exclusive Reseller exclusively to Customers under the terms of the EULA;
  2. Buy fixed-term licenses for the Product at the discounted rates set forth in the pricelist in APPENDIX A;
  3. Use and display the Product and Enscape IPR solely for the purpose of promoting, marketing, and demonstrating the Product to Customers. Cloud solutions provided by Reseller for testing the Product and/or offering free downloads of the Product shall require Enscape’s prior written approval.

Nothing in this Agreement shall constitute the right of Reseller to act as agent of Enscape or to represent Enscape in any way whatsoever. Reseller shall have no authority whatsoever to enter into any obligations on behalf of Enscape.

 

ORDER PROCESS AND DELIVERY

Reseller shall order licenses for the Product exclusively online using Enscape’s Reseller Portal available here. Enscape shall make available to Reseller login credentials at the Effective Date. Reseller shall be fully liable for any unauthorized use of these login credentials; notably Reseller shall be deemed to have authorized any order which is made using these login credentials.

Each order is subject to acceptance by Enscape, which Enscape may grant or decline at its sole discretion, notably if Reseller is in arrears with any payments. Each order shall exclusively be governed by the terms and conditions of this Agreement and the EULA.

Enscape shall make commercially reasonable efforts to deliver the license keys by the delivery date set forth in the respective order, but declines any liability in case of not meeting such deadline.

 

ENSCAPE PROPRIETARY RIGHTS

Reseller acknowledges and agrees that Product is protected by intellectual property rights owned or controlled by Enscape (“Enscape IPR”). Enscape retains sole title to and ownership in the Product and the Enscape IPR, regardless of the form or media in or on which the original or any copies may exist. Reseller shall:

  1. Use any Enscape IPR only (i) as allowed hereunder and (ii) according to the guidelines and instructions of Enscape, notably concerning use and display of any trademarks of Enscape;
  2. Except as permitted by mandatory law and this Agreement, Reseller shall neither copy, reproduce, decompile, reverse engineer, disassemble, modify, merge into another product, sublicense, rent, lease, loan, distribute nor create derivative works of the Product or make the Product publicly available, including over a network;
  3. Neither attack nor support any attack against Enscape IPR;
  4. Neither remove, alter nor obscure any notices relating to Enscape IPR;
  5. Not use any Enscape IPR to market or sell any products or services other than the Product;
  6. Neither use nor register any trademark, tradename, domain name or other mark identical or confusingly similar to any Enscape IPR, if not expressly allowed hereunder;
  7. Neither use, copy or make publicly available the look and feel of Enscape’s websites, nor deep-link or frame such Enscape websites;
  8. Promptly notify Enscape of any infringement or unauthorized use of the Product, any derivative product derived therefrom, and any infringement of Enscape IPR of which Reseller becomes aware during the Term.

 

PAYMENT

Reseller shall license the Product to Customers at the then applicable prices shown on Enscape’s website. The prices presently applicable are set forth in APPENDIX A. Enscape shall communicate to Reseller any price changes not less than fourteen (14) days in advance of such price change.

The license fees for the Product payable by Reseller to Enscape shall equal the Product fixed-term license price (as established above), less Reseller’s discount as set forth in Appendix A.

Reseller shall invoice its Customers for new licenses and renewals in its own name and on its own account. Reseller is aware that according to the EULA, auto-renewals apply to any acquired license, unless Enscape has received notice of termination (i) thirty (30) days before renewal date for yearly licenses and (ii) one (1) day before renewal date for monthly licenses, either from Customer or from Reseller. If Enscape does not receive notice of termination in time, Reseller will be charged for the renewal (at the discounted rate set forth in APPENDIX A).

All payments shall be due and payable upon placing the order in Enscape’s Reseller Portal, or (if individually agreed with Enscape) within fourteen days of invoice date by Enscape. Payments shall be deemed effected upon receipt of payment on Enscape’s bank account.

Reseller shall be responsible for, and shall indemnify and hold harmless Enscape from, the timely payment of all local, excise, sales, use, duties, royalties and other taxes levied with respect to the Product licensed to Customers hereunder (except for taxes imposed upon the net income of Enscape). Enscape shall be responsible for the payment of any VAT or other tax assessed or payable in Germany on the delivery or license of Product or on the payments made by Reseller to Enscape. Enscape shall be entitled to withhold any taxes, as per applicable laws; Reseller and Enscape shall cooperate to minimize any such tax withholdings.

Enscape shall be entitled to set a credit limit for Reseller, which will result in the maximum value of any orders placed by Reseller (plus the current balance of any payments due to Enscape) being limited to such credit limit value. If Reseller exceeds the credit limit, Enscape shall be entitled either (i) to terminate the Agreement upon such overrun persisting for more than 14 days without any grace period and/or (ii) to withhold acceptance and/or (iii) execution of any orders from Reseller.

 

TERM AND TERMINATION; EFFECT OF TERMINATION

This Agreement shall be effective as of the date of Enscape’s e-mail to you confirming your acceptance as Partner under Enscape’s standard partner program (the “Effective Date”). Its initial term shall be 3 months from the Effective Date. It will be renewed automatically for successive periods of 3 months, unless terminated by either Party at least 30 days prior to the expiration of the then current term. The right to immediate termination for cause – including in the event of breach of material obligations hereunder which remain uncured upon notice of breach for more than fourteen (14) days – shall remain unaffected.

Upon termination of this Agreement, all rights granted to Reseller under this Agreement shall terminate. Reseller shall pay any outstanding balance due to Enscape immediately.

Reseller shall not be entitled to any kind of payment, remuneration or compensation in connection with the termination or expiry of this Agreement, notably not for loss of business or loss of clientele.

 

MISCELLANEOUS

This Agreement and all individual orders for Product effected hereunder shall be exclusively governed by and construed according to the laws of Germany, to the exclusion of its provisions of conflict of laws and the UN-Convention for the International Sale of Goods (CISG).

Proper place of venue shall be exclusively the district court of Karlsruhe, Germany (Landgericht Karlsruhe). Enscape may also choose the competent court at Reseller’s (i) residence, (ii) place of business or (iii) registered office for any action arising hereunder. The right of either Party to claim injunctive relief before the courts competent under the applicable laws remains unaffected.

Nothing in this Agreement creates a partnership, joint venture or relationship of principal and agent between the Parties.

This Agreement embodies the entire agreement and understanding of the Parties and supersedes any and all prior agreements, representations or understandings made by either Party or their predecessors at any prior time, whether oral, in writing or implied with respect to the subject matter hereof.

Any amendment or supplementary arrangement to this Agreement shall be deemed invalid unless made in writing and signed by duly authorized representatives of both Parties; the same applies for any modification of this requirement of written form.

If any provision of this Agreement should be or become invalid or unenforceable, the validity of the remaining provisions hereof shall not be affected thereby. Such invalid or unenforceable provision shall be converted by mutual consent of the Parties, to the extent possible, to a valid and enforceable provision which comes as close as possible to the business objective of the original provision.

 

APPENDIX A – PRICE LIST

Article

Description

Price in US-Dollar/Term

Reseller Discount

Reseller Price in US-Dollar First Term

Reseller Renewal Discount

Reseller Price in US-Dollar Subsequent Term(s)

102

Yearly fixed-seat license

US$ 478,8

10%

US$ 430,92

10%

US$ 430,92

103

Yearly floating license

US$ 814,8

10%

US$ 733,32

10%

US$ 733,32

104

Monthly fixed-seat license

US$ 69,9

10%

US$ 62,91

10%

US$ 62,91

Table 1: Reseller Price List US$

Article

Description

Price in EUR/ Term

Reseller Discount

Reseller Price in EUR First Term

Reseller Renewal Discount

Reseller Price in EUR Subsequent Term(s)

102

Yearly fixed-seat license

€ 454,8

10%

€ 409,32

10%

€ 409,32

103

Yearly floating license

€ 778,8

10%

€ 700,92

10%

€ 700,92

104

Monthly fixed-seat license

€ 67,9

10%

€ 61,11

10%

€ 61,11

Table 2: Reseller Price List EUR

Article

Description

Price in AUD/ Term

Reseller  Discount

Reseller Price in AUD First Term

Reseller Renewal Discount

Reseller Price in AUD Subsequent Term(s)

102

Yearly fixed-seat license

AUD 658,8

10%

AUD 592,92

10%

AUD 592,92

103

Yearly floating license

AUD 1198,8

10%

AUD 1078,92

10%

AUD 1078,92

104

Monthly fixed-seat license

AUD 99,9

10%

AUD 89,91

10%

AUD 89,91

Table 3: Reseller Price List AUD

Article

Description

Price in GBP/ Term

Reseller Discount

Reseller Price in GBP First Term

Reseller Renewal Discount

Reseller  Price in GBP Subsequent Term(s)

102

Yearly fixed-seat license

GBP 382,8

10%

GBP 344,52

10%

GBP 344,52

103

Yearly floating license

GBP 658,8

10%

GBP 592,92

10%

GBP 592,92

104

Monthly fixed-seat license

GBP 57,9

10%

GBP 52,11

10%

GBP 52,11

Table 4: Reseller Price List GBP

Prices are exclusive of any VAT, which shall be added at the applicable statutory rates.

Any changes to the discount level are subject to agreement between Enscape and Reseller. However, Enscape shall be entitled to unilaterally raise the discount rate at any time by written communication to Reseller.

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