Connectel – Reseller Partner Agreement
Last updated 2023-08-18, version 1.0
This reseller partner agreement, together with the Reseller Partner Form (as defined below) and all other documents referred to herein, (the “Agreement”) constitutes the entire agreement between us, Connectel AB, 556755-6559, (“Connectel”) and you, the company identified as Reseller in the Reseller Partner Form (as defined below) (the “Reseller”), governing the Resellers appointment as a reseller of the Services (as defined below). Each of Connectel and the Reseller is referred to as a “Party” and together as the “Parties”.
In this Agreement, unless the context requires otherwise, the following expressions will have the meaning ascribed to them below:
“Acceptance Notification” means Connectel’s written acceptance of a Purchase Order as further described in Section 4.1.
“Consultancy Services” means consultancy services provided by Connectel.
“Customer” means the customers of the Reseller.
“Customer Terms of Service” means Connectel’s terms and conditions governing the Services as made available at Customer Terms of Service, as updated from time to time.
“GDPR” will mean Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC. Terms used in this Agreement that are defined or used in the GDPR, and not otherwise defined in this Agreement, will be construed in accordance with the GDPR.
“Effective Date” means the effective date of this Agreement set out in the Reseller Partner Form.
“Force Majeure Event” means an occurrence described in Section 16.1.
“Intellectual Property Rights” means any patents, trademarks, internet domain names, service marks, registered designs, applications for any of the foregoing, copyright, design rights, trade and business names and any other similar protected rights in any country, relating to the Services, the Service Documentation or Connectel.
“Purchase Order” means the written order submitted by the Reseller to Connectel as further described in Section 4.1.
“Reseller Partner Form” means the reseller partner form for the appointment of the Reseller as a reseller of the Services entered into between Connectel and the Reseller.
“Services” means the services listed on the Reseller Partner Form.
“Service Documentation” means the service specifications and other literature relating to the Services.
“Territory” means the geographical and commercial territory indicated in Reseller Partner Form.
“User” means an individual who is authorized by the Customer to use the Services.
2. APPOINTMENT AND SCOPE
2.1 Connectel hereby appoints the Reseller and the Reseller hereby agrees to act as reseller of the Services in the Territory in the Reseller’s own name and for Reseller’s own account.
2.2 Connectel will at any time be entitled to exclude a Service from the list in the Reseller Partner Form, where Connectel will no longer market such service or provide it to new Customers by giving the Reseller thirty (30) days prior written notice.
2.3 Connectel will have the right to appoint other persons to act as resellers or agents in the Territory for the Services. Connectel will furthermore have the right to market and sell the Services on its own behalf, without any obligation to pay any remuneration to the Reseller.
3. FUNCTIONS OF THE RESELLER
3.1 The Reseller will use commercially reasonable efforts to promote and sell the Services in the Territory.
3.2 The Reseller will not advertise outside the Territory or otherwise actively solicit orders for the Services from persons who are situated outside the Territory.
3.3 The Parties will discuss and mutually agree on a marketing and sales plans on a quarterly basis.
3.4 The Reseller will not represent itself as an agent of Connectel for any purpose nor make any representation on Connectel’s behalf or commit or bind Connectel to any contracts with third parties. Further, the Reseller will not without Connectel’s prior written consent make any promises or warranties with reference to the Services beyond those contained in the promotional material supplied by Connectel or otherwise incur any liability on behalf of Connectel.
3.5 The Reseller will keep Connectel informed about its activities, market conditions and the state of competition within the Territory. The Reseller will further provide Connectel with mutually agreed reports regarding its resale activities (“Reseller Report”) on a quarterly basis.
3.6 Unless otherwise expressly agreed in writing, the Reseller will bear all costs and expenses incurred in connection with its performance under this Agreement, and Connectel will be under no obligation to make payments, of whatsoever nature, to the Reseller for such expenses.
4. TERMS OF SALE AND PURCHASE OF THE SERVICES
4.1 Each order for the Services submitted by the Reseller to Connectel will be in writing, using the template attached to the Reseller Partner Form and be completed and submitted to Connectel via GetAccept or in such other way as agreed between the parties from time to time (the “Purchase Order”). The Reseller will ensure that all information provided in the Purchase Order is accurate and complete, including contact information to a duly authorized representative of the entity wishing to purchase Services who can bind the Customer to the Customer Terms of Service. The Customer Terms of Service are available at Customer Terms of Service. No binding contract regarding the Services will be deemed to have been entered into by the Parties, unless and until (i) Connectel has accepted the Reseller’s Purchase Order that conforms with the terms and conditions of the Purchase Order (the “Acceptance Notification”) and (ii) the entity that wishes to purchase the Services has accepted the Customer Terms of Service as confirmed by the contract between the Reseller and the relevant entity. No legally binding contract regarding the Services ordered by the potential Customer has arisen, should Connectel’s notification deviate from the terms and conditions set forth in the Purchase Order or if the prospective Customer fail to accept and agree to the Customer Terms of Service. In such a situation, Connectel’s notification will be considered as a legally binding offer that the Reseller may accept in writing (by utilizing the same means of communication as for a Purchase Order) within one week from Reseller’s receipt of such offer.
4.2 All binding sales contracts between Connectel and the Reseller will be subject to the terms and conditions of this Agreement. The prices and the payment terms that will apply in respect of the sale and purchase of the Services are set out in the price list in the Reseller Partner Form.
4.3 The Reseller will be free to set its resale prices in respect of the Services.
4.4 If the Customer fails to make payments as they fall due and there are remedies available to Connectel in relation to such breach under the Customer Terms of Service, the Reseller may request Connectel to take such measures. The Reseller will provide such information as reasonably requested by Connectel and otherwise collaborate with Connectel in relation to such breach.
4.5 The Reseller will be responsible for providing support and service to the Customers in relation to the Services in accordance with what is set forth in the Reseller Partner Form. The Reseller will not make any amendments or changes in source code of the Services. In case the Reseller is unable to solve or provide an adequate response to the request, the Reseller will escalate the issue to Connectel.
5. PRICING AND PAYMENT
5.1 The Reseller will pay the fees set out in the Reseller Partner Form in accordance with the Agreement.
5.2 The Reseller’s failure to pay any fees due under this Agreement in a timely manner is considered as a material breach of this Agreement.
6. RESELLER’S OBLIGATIONS
6.1 The Reseller will:
(a) without undue delay inform Connectel of any material development of the market(s) in respect of the Services in the Territory;
(b) not by itself or with others participate in any illegal, deceptive, misleading or unethical practices including disparagement of the Services or Connectel or other practices which are reasonably likely to be detrimental to the Services or Connectel;
(c) if any dispute will arise between the Reseller and any of its Customers in respect of the Services, promptly inform Connectel;
(d) upon the reasonable request of Connectel provide Connectel with available and relevant financial information relating to the Reseller, such as its annual accounts;
(e) not make any promises or representations or give any warranties or guarantees in respect of the Services except such as are consistent with those which accompany the Services or as expressly authorised by Connectel in writing;
(f) use the Intellectual Property Rights only in the registered or agreed style in connection with the marketing and sale of the Services and will not use the Intellectual Property Rights in connection with any other services or as part of the corporate or any trade name of the Reseller;
(g) not alter, obscure, remove, interfere with or add to any of the trademarks, trade names, markings or notices affixed to or contained in the Services or the Service Documentation at the time when they are delivered to the Reseller;
(h) not alter or interfere with the Service Documentation; and
(i) not at any time represent itself as the agent of Connectel.
7. COMPANY’S OBLIGATIONS
(a) Provide the Reseller with such marketing and technical assistance as is reasonably necessary and appropriate in order to assist the Reseller with the promotion of the Services. This assistance will to the extent commercially reasonable be performed free of charge;
(b) endeavour to answer as soon as reasonably possible all sales queries raised by the Reseller concerning the use or application of the Services. This assistance will to the extent commercially reasonable be performed free of charge. Notwithstanding the foregoing, this is only in relation to general sales queries and may not be used as customer specific service support;
(c) provide the escalation support to the Reseller in accordance with what is set forth in the Reseller Partner Form.
(d) provide the Reseller with Service Documentation and promotional literature and other information relating to the Services to enable the Reseller to fulfil its obligations under this Agreement. This assistance will to the extent commercially reasonable be performed free of charge;
(e) give the Reseller in reasonable advance written notice of any significant change to any of the Services or, subject to Section 2.2, of Connectel’s intention to discontinue the provision and sale of any of the Services;
(f) provide the Reseller with all information and assistance reasonably necessary to enable the Reseller properly to perform its obligations hereunder; and
(g) free of charge, provide the Reseller with adequate sales and marketing training in relation to the, from time to time, existing market situation. The said responsibility does not comprise any obligation for a Party to compensate the other Party for any travelling, accommodation or similar costs that may arise in connection with the above sales and marketing training.
Connectel provides no warranties to the Reseller. Service-related warranties, if any, are granted directly to the Customer and are governed by the Customer Terms of Service.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 All Intellectual Property Rights in or relating to the Services and the Service Documentation are and will remain the property of Connectel or its licensors.
9.2 Connectel may provide the Reseller with a demo version of the Services that contains certain limitations in functionality (the “Demo Version”). The Reseller is only granted a limited right to use the Demo Version for the purpose of marketing and promotion of the Services within the Territory and will not use the Demo Version for any other purposes. The Reseller undertakes to defend Connectel where claims are made, or actions are brought against Connectel for infringement of any third party’s intellectual property rights as a consequence of the Reseller using the Demo Version for any other purpose.
9.3 The Reseller will notify Connectel immediately if the Reseller becomes aware of any illegal or unauthorised use of any of the Intellectual Property Rights and will assist Connectel, at Connectel’s expense, in taking all steps necessary to defend Connectel’s rights therein.
9.4 Connectel undertakes to defend the Reseller where claims are made or actions are brought against the Reseller for infringement of any third party’s intellectual property rights as a consequence of the Reseller selling the Services, and to indemnify the Reseller from any cost or damages which the Reseller may be obligated to pay in accordance with a judgment, arbitral award or settlement resulting therefrom, provided such costs and damages were reasonably foreseeable. Connectel’s undertaking will only apply provided that Connectel, without undue delay, is notified by the Reseller in writing of the claim or action, and that Connectel is given the sole right to control the defence against such action and decide on any agreement or settlement. Notwithstanding the foregoing, the Reseller will be given a right to participate in such proceedings, at its own expense, and no settlement will be made without the Reseller’s prior written consent, such consent not to be unreasonably withheld. In performing its defence obligation hereunder, Connectel will act in a professional and diligent manner.
9.5 Connectel’s obligation to indemnify as set out herein only applies provided that Reseller i) has sold or used the Service in accordance with Connectel’s instructions and this Agreement, ii) that the alleged infringement has not been caused by the use of a Service in combination with any other software or material where the infringement would have been avoided but for such combination and iii) that the infringement has not been caused by the Reseller’s own instructions or data. If Connectel in its reasonable opinion finds that there is a risk of a Service infringing third party intellectual property rights, Connectel will be entitled to terminate this Agreement in whole or in such part as regulates the Service with thirty (30) days prior written notice.
9.6 The provisions of this Section 8 will constitute Connectel’s sole and exclusive responsibility and Reseller’s sole remedy in relation to infringements of third-party intellectual property rights.
9.7 If a claim or demand is made or action brought to which Section 8.4 may apply or, in the reasonable opinion of Connectel, is likely to be made or brought, Connectel will at its own expense, promptly:
(a) modify or change the requirements and/or instructions according to which the Reseller is obliged to use the Intellectual Property Rights so as to avoid the infringement or the alleged infringement; or
(b) take such other action in order to avoid or settle such claim, demand or action.
10.1 Each Party undertakes not to disclose to any third party without the consent of the other Party any information received from the other Party, including its business, which can reasonably be deemed to be of a confidential nature, including but not limited to trade secrets and information which is covered by any statutory duty of secrecy. Information stated by one of the Parties to be confidential will always be deemed to constitute confidential information.
10.2 The Parties’ confidentiality obligations under this Section 9 will not apply to trade secrets or any other confidential information which the receiving Party can demonstrate (i) is already known when received, (ii) is or has become public knowledge other than through breach of this Agreement, (iii) is received from a third-party who lawfully acquired it and who is under no obligation restricting its disclosure, or (iv) is to be made publicly available due to a court order, a decision by a public body or as otherwise required by mandatory law or the mandatory rules of a recognized stock exchange.
10.3 Each Party will be entitled to share confidential information hereunder with its employees, consultants, affiliates, advisors and subcontractors (“Representatives”) to the extent (i) necessary for such Party to exercise its rights and obligations hereunder and (ii) subject to such third parties having signed a confidentiality undertaking no less stringent than the confidentiality undertaking set out in this Agreement. For the avoidance of doubt, each Party is liable for any breach of confidentiality of its Representatives.
10.4 The Parties’ obligations under this Section 9 will be valid during the term of this Agreement and continue for a period of three (3) years after expiration or termination of this Agreement, regardless of the reason therefor.
10.5 Subject to the Reseller’s reasonable instructions as well as the Reseller’s prior written approval (e-mail is sufficient), Connectel will be entitled to use the Reseller’s trademarks, trade names or any other designations and information related to the subject matter of this Agreement for marketing purposes. Such approval will not be unreasonably withheld or delayed. Notwithstanding the foregoing, Connectel will be entitled to use the Reseller’s logotype and name for such purposes without Reseller’s prior written approval.
11. DATA PROTECTION
11.1 Under this Agreement, information concerning Customers, the employees of Customers, or other persons, may be shared from the Reseller to Company for the purposes of enabling the Customer’s use of the Services for such persons and for Company to verify Reseller’s adherence to the terms of this Agreement. Such information may constitute personal data, pursuant to the GDPR. The Reseller will inform Connectel of any requirements stemming from laws applicable on the Reseller in the Territory, which may affect the Reseller’s or Connectel’s processing of such information, prior to the information being shared from the Reseller to Connectel.
11.2 With regards to roles and responsibility in relation to processing of personal data, the Parties acknowledge and agree to the following:
(a) that Company will independently and separately determine the purposes and means for the processing of information received from the Reseller and will consequently be a data controller for such processing;
(b) that Reseller will also independently and separately from Company determine the purposes and means for processing of personal data from the End-User when administrating its business relationships;
(c) that Reseller will not function as a data processor on behalf of Customer with regards to Customers in connection with providing personal data from Customer to Company, and that Reseller will promptly inform Company if it has reasonable grounds to believe that the Reseller is or will become a processor under such circumstances; and
(d) that when Reseller is disclosing personal data to Company, Reseller is acting as an independent and separate data controller, and that the Parties are not jointly determining the purposes nor the means for the interchange of information, and are consequently not considering themselves joint controllers for such activities.
11.3 If required by applicable laws, the Parties will in good faith cooperate to make any necessary arrangements to protect the personal data exchanged within the scope of this Agreement, such as but not limited to entering into appropriate contracts with regards to transfers of personal data to recipients in countries outside of the EU/EEA.
11.4 The Reseller will inform the Customer that Company will act as a data processor on Customer’s behalf when providing the Services, and that Company will also process personal data received from Customer as a data controller.
12. RESERVATION OF RIGHTS
12.1 Connectel reserves the right:
(a) To make modifications or additions to the Services in any way whatsoever as Connectel may in its discretion determine; and
(b) to discontinue the Reseller’s right to provide any of the Services to new Customers (subject to Section 2.2 above).
13. LEGAL RELATIONSHIP
The Reseller is an independent contractor acting in its own name, at its own risk and not on the behalf of Connectel. Nothing in this Agreement will render the Reseller an agent of Connectel, which e.g. entails that the Reseller is not entitled to any commission or termination fee.
14. TERM AND TERMINATION
14.1 This Agreement enters into force on the on the Effective Date and will remain in force for the period set out in the Reseller Partner Form.
14.2 Notwithstanding the foregoing, each Party may terminate this Agreement with immediate effect, by notice given in writing in case
a) of a material breach of this Agreement by the other Party that such Party has failed to remedy within thirty (30) days from receiving notice requiring the breach to be remedied;
b) the other Party enters into bankruptcy, receivership, liquidation or a composition with its creditors or becomes insolvent; or
c) there has been any direct or indirect change in the ownership and control of the Reseller, as well as any direct or indirect transfer (whether by sale of shares, sale of assets, merger, reorganization, liquidation or otherwise) of any substantial part of the Reseller.
15. EFFECT OF TERMINATION
15.1 On the termination of this Agreement:
(a) All the rights and obligations of the Parties under this Agreement will automatically terminate except for such rights of action as will have accrued prior to such termination and any obligations which expressly or by implication are intended to come into or continue in force on or after such termination;
(b) the Reseller will upon Connectel’s request return to Connectel or otherwise dispose of as Connectel may instruct all confidential information belonging to Connectel and all technical and promotional materials and other documents and papers sent to the Reseller and relating to the Services or the business of Connectel (other than correspondence between the Parties) and all property of Connectel being in each case in the Reseller’s possession; and
(c) the Reseller will cooperate to transfer all its obligations under this Agreement and its agreements with Customers related to the subject matter hereof to another reseller.
16. LIMITATION OF LIABILITY
16.1 Neither Party will under any circumstances be liable to the other for any loss of profits or revenue, loss of business or contracts or any indirect or consequential loss or damage whether arising from negligence, breach of contract or any other cause of action arising out of this Agreement.
16.2 Each Party’s liability under this Agreement will per contract year be limited to the aggregate amount of the fees paid by the Reseller to Connectel during such contract year.
16.3 The above limitations will not apply in case of breach of the confidentiality obligations hereunder, gross negligence or wilful misconduct.
17. FORCE MAJEURE
17.1 Neither Party will be responsible to the other for any failure or delay in performing any of its obligations under this Agreement or for other non-performance hereof if such delay or non-performance is caused fire, flood, riot, civil commotion, pandemic, epidemic, act or ordinance of any governmental or local authority, terrorism, or by any other similar cause beyond the reasonable control of that party (a “Force Majeure Event”). The Party who is affected by a Force Majeure Event will immediately inform the other Party of such event and use reasonable commercial efforts to remove or overcome the hindrance for performance. Should a Force Majeure Event continue for more than three (3) months, either party will have the right to terminate this Agreement with immediate effect.
17.2 A Force Majeure Event which had occurred prior to the formation of this Agreement will give a right to termination only if its effect on the performance of this Agreement could not be foreseen at the time of the formation of this Agreement.
17.3 If, as a result of a Force Majeure Event, the performance by either Party of such Party’s obligations under this Agreement is only partially affected, such Party will nevertheless remain liable for the performance of those obligations not affected by the Force Majeure Event.
18.1 Any notice whatsoever which either Party hereto is required or authorised by this Agreement to give or make to the other will be given or made either by delivery by hand, sent by pre-paid registered post or sent my e-mail.
18.2 A notice will be deemed to be duly received: (a) if delivered by hand, when left at the address of the recipient, receipt confirmed, (b) if sent by pre-paid registered post, with return receipt requested, ten (10) days after the date of posting, or (c) if sent by e-mail, on the day following receipt by the sender of an electronic delivery report, indicating that the E-mail has been received by the recipient.
18.3 The contact details of each Party are set out in the Reseller Partner Form. Any party may change its contact details for service by notice as provided in this Section 17.
19. NO ASSIGNMENT
Neither party may assign or transfer any of its rights and/or obligations under this Agreement without the prior written consent of the other party.
20. MISCELLANEOUS PROVISIONS
20.1 No addition or modification to this Agreement will be valid unless made in writing and signed by authorized representatives from both Parties.
20.2 If part of this Agreement is or becomes invalid or non-binding, the Parties will remain bound to the remaining part. The Parties will replace the invalid or non-binding part by provisions which are valid and binding and the effect of which, given the contents and purpose of this Agreement, is, to the greatest extent possible, similar to that of the invalid or non-binding part.
20.3 Unless this Agreement explicitly provides otherwise, no delay or omission by either Party to exercise any right or power it has under this Agreement will impair or be construed as a waiver of such right or power. A waiver by any party or any breach or covenant will not be construed to be a waiver of any succeeding breach or any other covenant.
20.4 This Agreement replaces and supersedes any other or previous agreements between the Reseller and Connectel.
21. GOVERNING LAW AND DISPUTES
21.1 This Agreement and any non-contractual obligations arising out of or in connection therewith will be governed and constructed in accordance with the substantive laws of Sweden.
21.2 Any dispute controversy or claim, contractual or non-contractual, arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, will be finally settled by arbitration administered by the Arbitration Institute of the Stockholm Chamber of Commerce (the SCC). The Rules for Expedited Arbitrations of the Arbitration Institute of the Stockholm Chamber of Commerce will apply, unless the SCC, taking into account the complexity of the case, the amount in dispute and other circumstances, determines, in its own discretion, that the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce will apply. In the latter case, the SCC will also decide whether the arbitral tribunal will be composed by one or three arbitrators.
21.3 The venue for the proceedings will be Stockholm, Sweden. The proceedings will be held in the Swedish language.
21.4 The Parties undertake and agree that all arbitral proceedings conducted under this Section 20 will be kept confidential, and all information, documentation, materials in whatever form disclosed in the course of such arbitral proceedings will be used solely for the purpose of those proceedings.