- Basic Information
- Account created
- Sign in
- Change password
- Submit order
This Distributor Agreement (called “Agreement”) is made and effective as of the date of your confirmation online.
•“Channel Partner” refers to the organizations that purchase Products and Services from the Distributor and resells to the End-Customer.
•“End-Customer” refers to the organizations that purchase Products and Services from channel partners. End-Customers must use acquired products internally and not for resale purposes.
•“Products” refers to the Vendor’s products listed in Purchase order, which is subject to revision by mutual agreement of both parties, including hardware and software.
•“Purchase order” refers to the individual orders by the Distributor and upon confirmation of the individual order by the Vendor to individual contracts initiated by such orders.
•“Services” refers to the service offerings by the Vendor.
•“Territory” refers to the geography in which the Distributor is permitted to sell Products and provide Services to channel partners.
2.Agreement of parties
2.1 Appointment. The Vendor hereby appoints the Distributor as its non-exclusive Distributor for Products and Services in the Territory for the duration of the Agreement. Products and Services must be supplied for resale by the distributor only to Channel Partners. The Distributor shall resell the Products and Services in its own name. The Vendor reserves all rights to sell Products and Services directly to customers or via other sales channels in the Territory. The Distributor is an independent contractor and is not and shall not be deemed to be an employee, legal representative, Channel Partner, general agent, joint venturer or partner of the Vendor for any purpose.
2.2 Scope of the Agreement. The Vendor shall supply the Products to the Distributor and provide the Services at the prices and terms specified in this Agreement. All Purchase Orders confirmed by the Vendor shall be processed in accordance with the terms of this Agreement. The terms and conditions of this Agreement shall be deemed to be incorporated into each Purchase Order. All other standard business terms of the Vendor and the Distributor shall be excluded even if referenced in the Purchase Order. Both parties agree to inform each other about changes to Products and Services, sales activities, interests and company activities.
3. Obligations of the Vendor
In addition to the any other responsibilities stated in this Agreement, the Vendor shall:
3.1 Product and technical training. Upon reasonable request and without charge, provide product and technical training with regard to any characteristics of the Products that the Distributor deems reasonably necessary for the Distributor and its employees to fulfill the purposes of Distributor’s appointment. The training could be given either face to face or online.
3.2 Marketing support. Support the marketing initiatives of the Distributor in accordance with terms and conditions. The Vendor shall support and advise the distributor on marketing initiatives on its Products and Services. Support shall include marketing packages or individual market services. All support shall be agreed by both parties in writing before implementation. The Distributor acknowledges and accepts that the Vendor can collect, process, disclose and publish Distributor data including company address, personal contact, phone number and website for the purpose of the Vendor’s partner portal to allow Channel Partners and End-Customers to contact the Distributor.
The Vendor shall provide to the Distributor at no charge reasonable documentation for the Products including relevant product literature, user manuals, guides, and other documentation reasonably required for use of the Products. Distributor requires Vendor to provide such documents only if Vendor enjoys and agrees to provide such documents. Such documentation will be in the local language of the Vendor, or in English language to the extent such documentation is not available at the Vendor in local language. [Local laws may apply]
3.3 Sale support. Provide sales support and technical training to the Distributor and its employees as deemed reasonably appropriate by the Vendor.
4. Obligations of the Distributor
In addition to the any other responsibilities stated in this Agreement, the Distributor shall:
4.1 Sales of Products and Services. To its best efforts establish, maintain and increase the sale of Products and Services in the Territory by all usual means, including but not limited to advertising and personal solicitation by the Distributor of Channel Partners and prospective Channel Partners, demonstration of models, and distribution of marketing collateral.
4.2 Market data and forecasting. Provide the Vendor with market data including but not limited to industry statistics and market conditions in the Territory relating to the Vendor’s. Provide on a monthly basis an indicative forecast of expected volume requirements for the next 30 days.
4.3 Vendor’s policies. Adhere to the Vendor’s marketing, support and maintenance policies communicated to the Distributor by the Vendor. This includes not making representations, guarantees or statements regarding characteristics, features or the quality of the Products and Services, above or beyond those contained in the information supplied to the Distributor by the Vendor.
4.4 Trademarks, patents and copyright notices. Offer the Products for sale exclusively under their respective Vendor product names, including trademarks, patents and copyright notices, not alter, erase, remove or obscure any notices or other marks which the Vendor may place on the Products except as instructed by the Vendor, and supply its Channel Partners with all the necessary information and documentation. The Distributor shall ensure any restrictions on software use imposed by third party software licensors are outlined to Channel Partners to pass to End-Customers.
4.5 Examination of products and notification. The Distributor shall examine Products without reasonable delay after delivery. The Distributor shall not have the right to rely on any lack of conformity of the Products which could be discovered at the time of delivery (e.g. physical damage to the packaging, transportation damage) unless it has given written notice to the Vendor specifying in detail the nature of the lack of conformity without undue delay after delivery and receipt of Products. If circumstances indicating a lack of conformity of the Products arise after the delivery of the Products (e.g. by information given by the Channel Partners or End-Customers), the Distributor loses the right to rely on the lack of conformity if it does not give written notice thereof to the Vendor within one week after it has verified the lack of conformity, but latest 30 days from selling to the End-Customer [locally applicable laws will apply]. The Distributor shall lose the right to rely on a lack of conformity of the Products notwithstanding whether it has a reasonable excuse for its failure to give the required notice.
4.6 Completeness of Products. To contract its Channel Partners to examine completeness of Products together with the End-Customer at the time of sale and document the completeness in the End-Customer sales contract. The Distributor must not remove or modify the package contents of the Products as supplied by the Vendor unless agreed with written approval.
5. Ordering, prices, delivery procedure and retention of title
5.1 Ordering. Any obligation to supply (Vendor) or to purchase (Distributor) shall exclusively result from the individual confirmed Purchase Orders.
5.2 Prices. All supplies of Products and Services shall be as per the prices applicable at the time of the order. The Distributor shall pay as required by the specific purchase order. The Vendor may at its discretion and at any time change the prices. The Vendor will inform the Distributor without undue delay about the changes in prices by providing a new price to the Distributor. The Vendor reserves the right of changing prices at any times. Products that are sold as OEM or otherwise bundled Products, the Distributor is not entitled to unbundle such Products or sell such Products separately or at different prices. Subject to the terms of purchase order the Distributor may be entitled to receive certain rebates and discounts. Prices are exclusive of value added tax, all local taxes and other levies. Any such taxes and levies will be shown separately on invoices. All Prices under this Agreement are stated in US dollars or Euros and shall apply to any Purchase Order
5.3 Delivery procedure. The Distributor shall pass on all Product accompanying and associated Product materials delivered with the Products (e.g. End User License Agreement, Microsoft Certificate of Authenticity, external media or end user manual) and the respective obligations to the Channel Partner. The Vendor shall deliver Products to the agreed delivery point in the Territory. The delivery times in the Vendor’s Order Confirmations are estimates and the Vendor does not accept liability for any failure or delay in delivery. The Distributor will bear the risk of loss or damage to the Products from the delivery according to Incoterms 2020. If delivery of the Products is delayed due to a breach of obligation by the Distributor, risk shall pass to the Distributor once the period expires within which delivery would have been affected according to the Agreement.
5.4 Retention of title. [Local laws may apply] Title to Products is retained by the Vendor until the purchase price of the Products is fully paid (retention of title). During the period in which the Vendor still retains title in the Products any resale of the Products is only permitted to the Distributor in the ordinary course of their business and only provided that Distributor receives concurrent payment of the Purchase Price from its Channel Partners or the title in the Products is reserved in favor of the Distributor until its Channel Partner has fully performed its obligations with regard to payment of the products.
In the event of a fundamental breach of any contractual obligations of the Distributor, including but not limited to delayed payment, the Vendor upon prior written notice shall be entitled to withdraw the reserved Products. Neither the withdrawal as such nor any enforcement of the ownership rights resulting from the retention of title in general shall be deemed as cancellation of the purchase contract unless expressly stated otherwise by the Vendor upon withdrawal.
If under applicable law the above retention of title is not effective the Distributor shall take any measures necessary to secure the property of the Vendor or to procure equivalent security rights (e.g. letter of credit, bank guarantee) in the country of its place of business and in any country of destination and shall provide related evidence whenever requested by the Vendor. Non-compliance with such obligation constitutes a fundamental breach of contract. The Vendor shall not be obliged to deliver the Products if equivalent security rights have not been provided by the Distributor before effectuation of delivery.
If the Distributor for any reason other than the fault of the Vendor or a Force Majeure event is in delay with payment, the Vendor shall have the right to claim Liquidated Damages. The Liquidated Damages shall for each day of delay be 1‰ of the total account.
5.5 Delivery Term. Unless agreed in the PO between Vendor and Distributor, Vendor only accept the bellowing delivery Terms according to (Incoterms 2020) normally.
a. Delivery from China: FOB, CIF, DAP;
b. Delivery from Germany: EXW, DAP;
6. Warranties and limitation of liability [local laws may apply]
6.1 Conformity of products. Products are presumed to be in conformity with the Agreement if they are fit for the purposes for which they are normally used and if they show the quality and performance which are normal in the same type of product. Deviations which reduce the value or fitness of the Product insubstantial do not constitute a lack of conformity. Deviations from the Vendor order confirmation and technical improvements do not constitute a lack of conformity of the Products with the Agreement, provided that the substituted or modified Product shall be substantially equivalent in performance in capability to the original Products. Where such substitution is necessary, the Vendor will endeavour to advise the Distributor prior to delivery.
Selection, installation, viability of particular chosen combination or configuration, use of the Products and the results intended to be achieved hereby are within the sole responsibility of the Distributor, unless the Vendor has committed itself expressly and in writing to provide respective additional services to the Distributor. In case of lack of conformity of Products, that become apparent within one (1) month of delivery to the Distributor and which exists at the time of delivery to the Distributor, the Vendor shall at first procure to repair or replace the respective Products, the choice of the remedy being at the discretion of the Vendor.
6.2 Warranty obligations. All warranty obligations of the Vendor shall exclude defects or damages directly attributable to normal wear and tear, incorrect, negligent or improper handling, improper storage, excessive load in particular loads not considered by the respective Product specification, as well as defects or damages basing operating errors not within the responsibility of the Vendor or any other specific external factors. All warranties shall also be excluded, if the Products are modified or repaired improperly by the Distributor or a third party on the Distributor’s behalf, unless Distributor proves that such modifications or repairs were not the cause of the defect.
The Distributor hereby disclaims and waives all other remedies for the lack of conformity and warranties, expressed or implied. The Distributor acknowledges that no statement or representation of the Vendor shall be considered as a warranty regarding the Products fitness for any particular purpose, unless such statement has been expressly confirmed to the Distributor by the Vendor in writing. Unless otherwise provided for by mandatory applicable law, the remedies and warranties under this clause are exclusive and not cumulative, and the Distributor accepts these remedies and warranties in lieu of any and all other rights and remedies available at law or otherwise in relation to defects whatsoever. The Vendor Product guarantees given to the End-Customer might exist parallel and remain unaffected from the above stated warranty terms.
6.3 Software conformity. Software shall only be considered as nonconforming, if there are material deviations from the program specifications defined in the product information sheet, the relevant error always having to be reproducible and occurring in the last correction release supplied to the Distributor. It cannot be guaranteed that the software will meet the Distributor’s and/or End-Customer’s requirements. Software errors shall be remedied by providing a correction release of the software or by circumventing the error. The Distributor shall supply the Vendor with all necessary information and documentation in its pos-session, to rectify the error. Pending implementation of a new correction release, the Vendor shall provide an interim solution to circumvent the error unless this is impossible or disproportionate to the Vendor. With respect to software, which has been extended via interfaces released by the Vendor for this purpose, the warranty shall cover the software up to, but not exceeding such interface.
6.4 Right of redress. If the Distributor in relation to an End-Customer is liable for non-conformity of products resulting from an act or omission of the Vendor, any remedies of the Distributor shall be deemed to be compensated by the possibility of the Distributor to find remedies according to section 6 of this Agreement (e.g. to claim repair or replacement of the Product by the Vendor or the Vendor service-partner, the choice of the remedy being at the discretion of the Vendor.) or by the Vendor Product guarantee – equivalent in scope to legal remedies given to the End-Customer.
6.5 Liability of vendor. The Vendor is not responsible for providing daily data back-ups in an adequate manner in order to insure actual and economical efficiently restoration of data in case of a loss. The Vendor shall not be liable for the loss of information and data or for restoration of any data incurred by the End-Customer. Any other liability of the Vendor to the Distributor which may be excluded or limited but has not been limited in this clause or elsewhere in the Agreement shall not exceed the amount paid to the Vendor by the Distributor in respect of the particular Products which gave rise to the liability in question or US Dollar 100 000, whichever is greater.
Unless otherwise provided for by mandatory applicable law, the responsibilities and liability of Vendor contained in this Agreement are exclusive, and the Distributor accepts these responsibilities and liability of the Vendor in lieu of any and all other rights and remedies available at law or otherwise, in contract or in tort, for any and all claims of any nature arising out of or in connection with this Agreement or any other Agreement regarding its performance. During the time, for which an event of force majeure persists, the party that is obliged to deliver or perform shall be exempted from its obligation if and insofar as the delivery or the performance is impaired or affected by the force majeure event, providing the party has taken all reasonable measures to resume provision of the deliveries/performance and continually informs the other of the circumstances on which the continuation of the obstacle to the deliveries/performance is based. If the resumption of the service is associated with additional costs to the party obliged to provide deliveries/performance, the parties shall come to an agreement as to the bearing of such costs before the deliveries/performance are resumed.
6.6 Investigation of third party caused defects. If the Distributor has claimed a defect, and during investigation of the cause of such defect the Vendor discovers that the defect/error had been caused by components other than those Products delivered by the Vendor, the Vendor has the right to charge the Distributor for the service costs investigating the cause of the defect according to the Vendor standard fees and reasonable travelling expenses.
6.7 Third party claims. In the event that a suit, action or proceeding is asserted against the Distributor in the Territory based on a claim that Products or Services infringe the industrial or intellectual property rights or copyrights (“Property Rights”) of a third party (a “Claim”), and the use or distribution of the Product or Service is therefore affected or restricted and the Vendor has caused the infringement willfully or negligently – subject to the conditions of this clause – the Vendor shall, at its own cost, and the choice of the remedy being at its sole discretion, either (a) alter or replace the Product or Service so that it is no longer subject to the Claim but still essentially corresponds with the agreed specification; (b) obtain sufficient rights from the third party so that the Distributor is released from the Claim; or © accept the return of the Product or Service and reimburse the amounts actually paid for the affected Product or Service by the Distributor. The Vendor reserves the right to demand an adequate compensation for any benefits gained from the use of the Product or Service up to the time of the return, and the Distributor agrees to pay such compensation to the Vendor.
The foregoing obligations under this clause are subject to the following conditions: The Distributor must (a) provide immediate written notice to the Vendor of any Claim; (b) not admit the alleged infringement; and © conduct any and all legal disputes, including any out-of-court settlements, exclusively upon the Vendor’s express, prior and written approval. In case the Distributor decides to cease use of the Product, either to minimise potential damages or for other good reasons, it must advise the third party that the decision to cease using the Product does not imply any acknowledgement of the respective infringement of Property Rights whatsoever. The Distributor acknowledges and agrees that the Vendor will have no obligation to take any action with respect to a Claim that is based, in part or in whole, on (a) The Vendor’s compliance with design specifications set by the Distributor; (b) an application or use of a Product not intended by the Vendor; © the Distributor having altered a Product; or (d) use of a Product or Service in conjunction with other products or services not supplied by the Vendor. In these cases, the Distributor shall defend, indemnify and hold the Vendor harmless against any claim for infringement of third-party Property Rights. Furthermore, any and all claims by the Distributor against the Vendor shall be excluded insofar, as they are based on Property Rights – known or unknown to the Vendor – that relate to a Standard.
Clause 6.5 is applicable to the Vendor’s liability under this clause. The Vendor shall be relieved from all liability in connection with any Claim that may arise more than Twenty-four (24) months after delivery of the Product or Service that gave rise to the Claim. Unless otherwise provided for by mandatory applicable law or under this Agreement, this clause states the sole and entire warranty and liability of the Vendor with respect to any claims of infringement of Property Rights or regarding deficiencies in title. The rights and remedies contained herein are in lieu of any and all other rights and remedies available at law or otherwise.
6.8 Limitation of liability. In no event shall either party be liable to the other for any special, indirect, exemplary or consequential damages arising out of this agreement or purchase of use of the products.
7. Force Majeure
7.1 Liability of contractual obligations. Neither party shall be liable to the other for the non-performance or infringement of contractual obligations (with the exception of payment obligations if Vendor already delivered the products to Distributor and the payment is not influenced by the force majeure event), to the extent that such non-performance or infringement is due to force majeure. ““Force majeure”” means in particular wars, civil wars, disasters, acts of terror, epidemics, quarantine, governmental action, labour disputes, fire, power outage, failure of telecommunications lines and external attacks on IT systems that cannot be prevented with technically and economically reasonable expense, using proven state-of-the-art technology. The affected party shall inform the other party of the force majeure event in writing without undue delay immediately after the occurrence of such event, stating the time of the occurrence and the anticipated impact on the party’s ability to fulfil its contractual obligations.
During the time, for which an event of force majeure persists, the party that is obliged to deliver or perform shall be exempted from its obligation if and insofar as the delivery or the performance is impaired or affect-ed by the force majeure event, providing the party has taken all reasonable measures to resume provision of the deliveries/performance and continually informs the other of the circumstances on which the continuation of the obstacle to the deliveries/performance is based. If the resumption of the service is associated with additional costs to the party obliged to provide deliveries/performance, the parties shall come to an agreement as to the bearing of such costs before the deliveries/performance are resumed.
8. Confidential information and data protection
8.1 Confidential information. The parties mutually undertake to keep confidential all information (“Confidential Information”),whether written or oral, concerning the business and affairs of the other which they obtain or receive as a result of the discussions leading up to, the entering into, or the performance of this Agreement except where: (a) the information was already lawfully known, or became lawfully known to either of the parties independently of the performance of this Agreement, or (b)the information is, or comes into, the public domain other than due to wrongful use or disclosure. Each party shall use the Confidential Information exclusively in connection with the execution of this Agreement and protect it with the same manner it protects the confidentiality of its own proprietary and Confidential Information of like kind, but always at least to the degree of reasonableness and prudence.
Therefore, each Party shall disclose the Confidential Information (i) as may be required by law, and (ii) to those members of its and its affiliates personnel only, which need to have access to such information in connection with the execution of this Agreement. Confidential Information of the disclosing party may not be copied or reproduced by the recipient without the disclosing Party’s prior written consent, except for the exclusive purpose of this Agreement. This clause shall survive any termination of the Agreement to a maximum of 5 years.
8.2 Data protection. Each Party undertakes and agrees to comply with all applicable requirements under applicable data protection laws, including (when applicable) the General Data Protection Regulation (EU) 2016/679, including any applicable amendment, re-enactment or replacement of it from time to time (“GDPR”). In connection with this Agreement, either Party will only collect, process and transfer to the other party own personal data and personal data of Channel Partners and End Customers (as applicable) such as name, address, position, e-mail address, phone number (“Personal Data”) as it is necessary to fulfill this Agreement and to perform the relevant Services, and each Party shall comply with all applicable legal requirements under the GDPR.
The Distributor and the Vendor each agree that the receiving party can use, store, process and transfer Personal Data received from the other party for the contractually agreed purposes. Both Parties shall only use Personal Data in order to (i) fulfil the contractual obligations of this Agreement and (ii) for warranty services, for Hardware Support Services, for license registration upon 3rd party licensing agreements, in the course of reselling 3rd party hard- and software, including 3rd party warranty services or as well as anonymously for evaluations and quality assurance measures. In particular either Party shall be authorized to collect, process and use any contact names and phone numbers of the other Party in the ordinary course of business. If either Party should request the other party to process any Personal Data on behalf of such party (the “data controller”) for the performance of this Agreement, the receiving party will be acting as “data processor” for the data controller in relation to any Personal Data processed on the data controller’s behalf, provided a data processing agreement has been entered into in accordance with Article 28 (3) GDPR. The data processing party shall only process Personal Data in strict accordance with the instructions of the data controlling party or as otherwise required by applicable law. Each Party shall notify the other party in case it sees the requirement of a further Data Protection Agreement to cover data processing.
The data privacy obligations set forth in this clause 8.2 shall remain in force after expiry of this Agreement for a period of at least one year and in any case as long as the GDPR applies to the Parties’ processing of Personal Data.
In connection with potential warranty obligations of the Vendor under this Agreement, the Distributor shall notify its Channel Partners that the Channel Partners and/or their End-Customer remain responsible for any data (including Personal Data) stored on storage media returned to the Distributor and/or the Vendor in connection with defects or warranty cases. Upon request by an End-Customer, either the Vendor, Channel Partners or the Distributor (as applicable) may be requested to collect defective data storage media such as hard disk drives or solid-state disks from its End-Customers (“Customer Storage Media”). In such case, the relevant party collecting the Customer Storage Media; (a) shall clearly mark Customer Storage Media that contains End-Customer data and take all appropriate technical and organizational measures during transport to the Vendor to protect Customer Storage Media and Personal Data against loss and unauthorized access; Customer Storage Media identified has containing End Customer Personal Data must in particular be stored in secure and locked locations and must be transported in secure and locked boxes; (b) shall treat any data stored on Customer Storage Media strictly confidential; © must not access, copy or otherwise use data stored on Customer Storage Media for any purpose; (d) shall deliver Customer Storage Media to the designated Vendor location without undue delay; (e) require that persons involved in the handling, storage or transport of Customer Storage Media have committed themselves to confidentiality.
Unless otherwise agreed in a particular case, and as requested by the End-Customer, the Vendor, the Channel Partner or the Distributor will, on behalf of the End-Customer, either destroy the Customer Storage Media or delete the Personal Data by applying a deletion process that complies with the recognized state of the art.
Each Party shall inform its personnel and other persons involved in the performance of this Agreement accordingly. Where the Distributor engages third parties in connection with the handling, storage or transport of Customer Storage Media with Personal Data, the Distributor will remain fully liable for the third party and shall use only reliable and suitable third parties; the Distributor shall upon reasonable request inform the Vendor about such third parties. If either Party is processing Personal Data on behalf of the other Party under a data processing agreement the data processing party will inform the data controlling party without undue delay, but in any event within 48 hours, after it becomes aware of any breach of the obligations hereof or any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, data stored on Customer Storage Media or Personal Data.
The Distributor knows and accepts that the Vendor may, in the normal course of business, make worldwide transfers of personal data on its corporate systems, to other entities, agents or subcontractors in the same group of companies, or to other relevant business partners who may have incidental access to personal data. When making such transfers, the Vendor shall ensure appropriate protection is in place to safeguard personal data transferred under or in connection with Purchase Orders.
9. Trademark, copyright and intellectual property
9.1 Trademarks. For the term and within the scope of this Agreement and subject to revocation at any time, the Distributor is entitled to use the name Bescore and the following Vendor trademarks (“Bescore”), as well as other registered trademarks of Vendor for advertising and marketing purposes of Products and/or Services subject to the relevant Vendor guidelines and directives and according to the following terms and conditions (a) to (d). No approval, neither express nor implied, exists for the use of names or trademarks of third parties, and the license for these names/trademarks must be granted by their respective owners.
(a) Distributor shall use and display the Vendor Trademark in accordance with the Vendor Operational Manuals and other conditions, rules, policies, regulations or instructions from time to time issued by the Vendor or the trademark owner Vendor Limited; (b) The Distributor will not use the Vendor Trademark in any way which may imply that Distributor is an agency or branch of Vendor or Vendor Limited; © The Distributor shall only use and display the name [Vendor name] and the Vendor Trademark in connection with the sales, promotion, advertising and marketing of the Products and/or Services; (e) In order to avoid any confusion with products or services of any other Vendor Group Company that also uses the Vendor Trademark, the Distributor shall clearly show the name [Vendor name] and the Distributor’s company name on marketing materials for the Products and/or Services where the Vendor Trademark appears.
For the term and within the scope of this Agreement, the Vendor is entitled to use the name and the (registered) trademarks of the Distributor for advertising and marketing purposes of Products and/or Services.
9.2 Software licenses. All software incorporated in the Products or provided on a standalone data carrier will be supplied by the Vendor under license and will be in object code form only. The Distributor hereby acknowledges that copyright and all other intellectual property rights in the software and all corrected, modified, improved or enhanced versions thereof, and the relevant documentation is owned by and will remain vested in the Vendor or its licensor. Except for the license granted herein, no other rights, title or interest in the software is granted to the Distributor.
Subject to payment for the respective product units, the Vendor grants to the Distributor a non-exclusive, non-transferable license for the Territory - such license being limited to the term of this Agreement - , to sub-license its Channel Partners to grant their End-Customers a non-exclusive, non-transferable, perpetual license to use the software on the related hardware or with which the software has been supplied. For software installed on a server and accessible to more than one workplace this software shall be licensed for non-exclusive use by the number of users and be subject to other restrictions indicated in the Order confirmation or applicable Product documentation or license terms.
The above license of use shall extend only to those features authorised by the Vendor or is authorised by the license terms that accompany the software. The Distributor may not modify, adapt, reverse engineer, reverse compile or merge the software without the Vendor’s prior explicit written consent nor permit any Channel Partner to do the same unless otherwise provided by mandatory law. Any End-Customer may make a non-modified copy of each software for backup purposes only. Otherwise the software must not be duplicated or reproduced neither by Distributor, its End-Customers nor by third parties. The Distributor will respect all terms attached by the Vendor or by third-parties with respect to the use of copyrights, trademarks, trade secrets and third party license rights relating to the Products. The Distributor shall contractually require its Channel Partners to comply with any obligations and license terms governing the use of the software.
If any of the Channel Partner is in breach of the terms governing the use of software, the Distributor will use its best endeavours to ensure such breach is remedied and, if unsuccessful, shall terminate the agreement with the Channel Partner, and exercise its rights to require the return to it or destruction of the software and all material relating to the software licensed by the Distributor. This sub-clause will survive the termination of this Agreement.
10. Approval obligations, export control and customs
10.1 Approval obligations. Activities in conjunction with this contract (e.g. export, resale, delivery, immaterial transfer of goods, technical support) may be subject to approval obligations, e.g. by reason of their nature or intended purpose. It is the sole responsibility of the respective contractual partner to obtain such approvals who is obliged to do so according to the valid export control regulations of the Federal Republic of Germany, the European Union (EU), the United States of America (USA) or any other affected country. The parties agree to cooperate in providing information as necessary to obtain any required licenses and approvals on request.
Activities in conjunction with this contract may not be carried out if there are reasons for suspecting that they may be used in connection with chemical, bio-logical or nuclear weapons, for missile technology to be used for such weapons, for military end use or military end users or for serious human rights abuse. The Distributor shall comply with the embargoed countries or regions issued by the U.S. Government, including Cuba, Iran, North Korea, Syria, and the Crimea Region. The Distributor shall comply with the corresponding sanction lists issued by the European Union, the German Federal Government, US export authorities or any other relevant country, e.g. European Sanctions List, Denied Persons List, Specially Designated Nationals List, Military End-User List or Unverified List, the China’s Ministry of Commerce’s Unreliable Entity List, as well as any other valid advisory notices from the appropriate authorities as amended from time to time.
10.2 Export control and customs. Whenever products are resold, the Distributor shall introduce reasonable checking measures for the prior assessment of its End Customers/Channel Partner relating to foreign trade and payments. Upon request the Distributor will demonstrate such inspection measures to the Vendor in detail. The Distributor shall advise its Channel Partners and End-Customers in writing about export regulations and agreements mentioned in this section. As far as Products are destined for export or re-export the Distributor is obliged to obtain all approvals and licenses if any, to comply with relevant export control regulations. Upon ordering, - especially when using the Vendor e-Procurement Portal for ordering – the Distributor shall provide to the Vendor any and all information on export control relevant critical End Use/End users available to the Distributor at the time of the order. The Distributor represents and warrants to fully and truthfully answer the export control related Vendor questions on the envisaged End-Customer, final destination and critical end use as integral part of the corresponding order.
An infringement of the provisions in this section shall be considered as a fundamental breach of the Agreement and the Distributor shall be exclusively liable and shall indemnify and hold harmless the Vendor as regards any resulting damages, penalties and/or fines caused by such breach. The Vendor shall not be obliged to supply Products or perform other contractual obligations if such supply would violate applicable export control regulations of the Federal Republic of Germany, the European Union the United States of America, Japan or other Countries. The Parties acknowledge that correct customs clearance in connection with any cross-border shipments is within responsibility of the respective contractual partner who has the obligation as per valid customs regulations of the Federal Republic of Germany, the European Union (EU) or any other affected country. If the parties under a specific order should agree that the Vendor is to take care of customs clearance on behalf of the Distributor or on behalf of a third party, the Distributor will provide any and all information and documents necessary for customs clearance (e.g. Customs registration number/EORI-Number, Power of Attorney).
Upon request, the Distributor/User will provide to the Vendor sufficient information regarding its compliance with related export control and sanctions regulations. In particular, the Distributor/User will provide to the Vendor upon request with; (a) detailed information regarding all measures adopted in respect to comply with related ex-port control and sanctions regulations; (b) all records, communications, accounts, ledgers, files and any other documents held by or available to it that contain or may contain information of potential relevance to the export, re-export, transfer, shipment, distribution, sale, end-use and end-user of the Products; © copies of licenses that are obtained in connection with further export, re-export, transfer or transport the Products; (d) the names of persons or entities to which the Distributor/User has exported, re-exported, transferred, transported, distributed or sold the Products or who the Distributor/User believes or has reason to believe may have exported, re-exported, transported, distributed, sold or purchased the Products; (e) information regarding the Distributor’s/User’s knowledge about the ultimate use of the Products; (f) copies of the Distributor’s/User’s advice to the Channel Partners about related export regulations and agreements mentioned in this section.
11. Term and termination
11.1 Term of Agreement. The term of this Agreement shall be valid beginning on the date of signature by the parties and shall remain valid for one (1) year. This Agreement will be automatically renewed for successive additional periods of one year and for once, unless terminated by a party. However, at any time during the term of this Agreement, either party shall have the right to terminate this Agreement by giving ninety (90) days written notice to the other party and with the written consent of the other party
11.2 Termination. The right to terminate individual provisions or obligations of Schedules signed by both parties within the termination period of thirty (30) days to the end of each calendar month remains unaffected. Guidelines and Schedules which have become part of the Agreement but have not been signed can be changed by the Vendor at any time with 30 days prior written notice. Notwithstanding otherwise provided in this Agreement, either party may terminate this Agreement by giving written notice to the other party for the following reasons, effective immediately upon receipt of such notice and written consent of the other party. In particular a good cause is established if: (a) the other party commits a fundamental breach of this Agreement (including but not limited e.g. to selling OEM or otherwise bundled Products unbundled, abuse of project specific procurement terms and conditions for other customers) which, in the case of a breach capable of being remedied, is not remedied within thirty 30 days of a written request to do so; (b) the other party commits a fundamental breach of this Agreement which is incapable of being remedied; © in case of an imminent material deterioration of the other party’s available funds, the other party enters into any voluntary arrangement with its creditors or becomes subject to the equivalent of these situations in any relevant Territory; or (d) a fundamental change occurs to the Distributors management or shareholders and such change is judged by the Vendor to negatively affect the business interests of the Vendor.
Upon any termination of this Agreement all rights and obligations under this Agreement will automatically terminate, except for rights accruing prior to such termination and for obligations which expressly or by implication are intended to survive termination. It is particularly understood that the terms of this Agreement will remain in full force and effect for Purchase Orders placed prior to such termination.
12. Law and jurisdiction
This Agreement and related Purchase Orders and their execution shall be construed and governed in accordance with the law ofGermany. The application of the United Nations Convention on the International Sale of Goods (CISG) shall be excluded.
13. General provisions
13.1 Amendments. This Agreement may be amended only by a writing signed by each of the Parties, and any such amendment shall be effective only to the extent specifically set forth in such writing.
13.2 Assignment. Unless stated otherwise in this Agreement the Distributor may not assign or otherwise transfer this Agreement or any of its rights or obligations under this Agreement, whether in whole or in part to third parties not involved in this Agreement, without the prior written approval of the Vendor, unless stated otherwise in this Agreement.
13.3 Disputes. The Parties shall seek to resolve any dispute, controversy or claim arising out of or in connection with this Agreement, including without limitation, any dispute regarding the enforceability of any provision, through good faith negotiations between them within 30 days of any notice of dispute being served or such longer period of time as may be mutually agreed between the Parties. If the Parties are unable to resolve the dispute within this timeframe, each party irrevocably and unconditionally submits to the exclusive jurisdiction of the Hong Kong International Arbitration Centre (HKIAC) by three arbitrators in accordance with said Rules. The decision of the Arbitration Commission shall be final and binding upon both parties; neither party shall seek recourse to a law court nor other authorities to appeal for revision of the decision. Arbitration fee shall be borne by the losing party.
13.4 Notices. Unless stated otherwise in this Agreement and unless related to the handling of specific Purchase Orders, all notices required to be given must be in writing. Any notice that affects the validity or existence of this Agreement shall only be delivered personally or in written form by a party to the address as indicated on the front page.
13.5 Replacement. This Agreement supersedes all prior Agreements, arrangements and understandings related to the subject matter between the parties and constitutes, together with the terms contained in any contract which incorporates the terms of this Agreement, the entire Agreement between the Vendor and the Distributor relating to the subject matter hereof. No addition to or modification of this Agreement will be binding on the parties unless in writing, signed by duly authorised representatives of the parties and transmit-ted by mail.
13.6 Schedules. Schedules to this Agreement or guidelines referred to in this Agreement constitute part of the Agreement.
13.7 Severability. If any provision of this Agreement or any other agreement regarding its performance is or becomes ineffective or is held to be invalid or unenforceable in whole or in part by any competent authority or court having final jurisdiction, the validity of the other provisions of this Agreement and the remainder of the provisions in question will not be affected. The parties shall replace such provision by a valid and enforceable provision which meets as closely as possible the purpose of the invalid or unenforceable provision. The same rule shall apply to participants in connection with the performance of individual Purchase Orders.
13.8 Waiving of Rights. A waiver of any term is only valid if it is in writing, signed by duly authorised representatives of the waiving party and transmitted by mail. A waiver is valid for the specific situation for which it was sought.
13.9 Written form. Unless stated otherwise in this Agreement written form, writing or similar means the transmission of notices by e-mail, mail, facsimile or via internet.