Standard Terms and Conditions
This Standard Terms and Conditions and its Schedule(s) and Order Form(s) (collectively, the “Agreement”) is made by and between the entity identified in the associated Order Form with the address, location, and Registered Number also contained in such Order Form (“Partner”) and This is Productivity located at 20 Harcourt Street, Dublin 2, Dublin, Republic of Ireland, FAO: Claire Burge (“This is Productivity”) (each the “Party” and together, the “Parties”) and is dated the same date as such Order Form (“Effective Date”). This Agreement shall govern all of the products, services, obligations and terms identified under this Agreement and any related document. The Parties hereby agree as follows:
1.1 Capitalized terms shall have the meaning ascribed to them as set out in the definitions at Schedule 1.
2.1 The Initial Term of this Agreement shall commence on the Effective Date and shall continue in full force and effect for the period of two years (“Initial Term”), unless terminated earlier as provided herein. During the Initial Term either Party may terminate the Agreement without reason or cause on 28 days’ prior written notice. Thereafter, this Agreement shall automatically renew for an additional twelve (12) Month period at a time indefinitely (each such Year being a “Renewal Term” and, together with any previous Renewal Terms, the “Term”), unless and until either Party provides the other Party with written notice to terminate at least six (6) months prior to the end of the Initial Term or any Renewal Term, as applicable (“Notice to Renew”). Each Party’s obligations shall survive termination for Customers who have completed a PSA.
3. Partner’s Obligations
3.1 Partner shall, at its discretion as disclosed agent, introduce potential Customers to This is Productivity, inter alia through the use of Advertising and Links, popups or popunder placements on its website and in marketing materials, offering a package bundling Partner’s Software and Products and/or Services. The provision of This is Productivity’s Products and/or Servicesshall in all cases be subject to completion by Customer and Sugar Yard of a PSA; Partner shall not complete a PSA on behalf of Sugar Yard.
3.2 Partner shall in good faith provide such cooperation and documentation including information about and accessto its Software asreasonably required to enable This is Productivity to fulfil its obligations pursuant to the PSA. Where This is Productivity reasonably requires, Partner shall provide to This is Productivity training in respect of Partner Software usage and best Implementation practices and any relevant terms of the PartnerCustomer contract.
3.3 Partner shall ensure that following 14 days’ notice, at least once every 6 Months of the Term, itssales personnel who are likely to interact with potential Customers undertake training with This is Productivity in respect of the Products and/or Services and is current in his or her review of the promotional and marketing materials.
3.4 Partner shall provide to This is Productivity throughout the Term with accessto Partner’s customer resource management tool and data to enable This is Productivity to comply with its obligations to Customer pursuant to the PSA efficiently.
3.5 Within one Month of the Effective Date the Parties shall agree a clearly defined sales, Implementation and post Implementation handover process and systems to enable Customer satisfaction with the Products and/or Services and such process shall be reviewed and updated as necessary once every 6 Months of the Term.
3.6 Partner is responsible for ensuring compliance with applicable laws and regulationsin respect of all advertising and promotions, in accordance with reasonable and prudent business practices. Itshall not modify This is Productivity brands and logos nor This is Productivity’s marketing and promotional documentation and materials. In addition, Partner shall be solely responsible for the development, operation, and maintenance of Partner’s website(s) and for all materials related thereto.
3.7 Partner shall acknowledge and respond to all Support Notices promptly. Partner shall resolve such issues directly with Customer and where such resolution is not possible within 24 hours, shall provide a temporary and reasonable workaround to Customer.
4. Sugar Yard’s Obligations
4.1 Following an introduction by Partner to This is Productivity of a potential Customer, This is Productivity shall in its absolute discretion (i) decide whether or not to complete a PSA with such Customer and (ii) whether to engage or use Partner Software and product(s) asthe primary medium for all implementation related activities. Subject to completion of such a PSA, This is Productivity shall provide to Partner’s clients who are Customers, Sugar Yard’s Products and/or Services, that have been agreed on based on the deployment package that has been purchased.
4.2 This is Productivity will use reasonable endeavorsto complete its obligations pursuant to the PSA within 120 days after entering into the PSA with the Customer subject to Customer needs and availability to create upsell opportunities for the Partner should the Partner provide access to its customer resource management system.
4.3 Sugar Yard will feedback to Partner around Customer support, product improvement, marketing and strategic positioning on a quarterly basis as mutually agreed to by the Parties.
4.4 This is Productivity shall be responsible for all contractual, invoicing and related commercial activities(including pertinent taxesto local authorities) pursuant to the PSA with Customer. All information obtained at the This is Productivity Site from individualslinking to the This is Productivity Site shall be the sole and exclusive property of This is Productivity and, except as specifically provided herein, Partner shall neither have access or permission to use such information.
4.5 If This is Productivity decides, in its sole discretion, to substantially alter its Products and/or Services as available to Customers, it shall provide reasonable notice to Partner.
4.6 This is Productivity may sublicense or subcontract its obligations under this Agreement and the PSA. This is Productivity may assign, transfer or encumber any of its rights and/or the obligations under this Agreement.
4.7 This is Productivity’s obligations under this Agreement shall, to the extent of any failure, delay, act or omission of Partner, Customer, or Partner’s or Customer’s permitted agents or third parties outside This is Productivity’s Direct Control (collectively, “Outside Act”), be suspended for the duration of the actual delay arising out of such Outside Act. This is Productivity shall inform Partner of the Outside Act within reasonable time to which the Parties shall meet to repair or prevent such Outside Act.
5. Fees, Expenses, Payment Terms, Invoice Disputes
5.1 Partner shall not offer discounts in excess of agreed commission or 15% (whichever is less) in respect of Products and/or Services without Sugar Yard’s prior written approval.
5.2 All invoices are subject to reversecharge VAT procedures and Partner isresponsible for compliance in thisrespect. Partnershall be liable for all applicable Transaction Taxes in connection with the charges invoiced under this Agreement. “Transaction Taxes” meanssalestax, excise tax, value added tax, goods and services tax, withholding tax or consumption tax. All paymentsto and from This is Productivity shall be in EURO €. Sugar Yard will be reimbursed for the actual costs after conversion to Euros where applicable.
5.3 The fees due from This is Productivity to Partner pursuant this Agreement shall apply to all Products and/or Services supplied in respect of any single Customer pursuant to its first PSA, any amendments to that PSA and additional PSAs with that Customer, for which This is Productivity supplies Products and/or Services within 1 Year from the Effective Date of the first PSA with that Customer. Thereafter, (being 12 Months after the Effective Date of the first PSA with a Customer) no fees shall be payable to Partner by This is Productivity in respect of that Customer whether pursuant to a PSA or otherwise. Partner shall reimburse This is Productivity for reasonable travel and other out of pocket expenses including expenses for other relevant third party services or software or products, where such expenses have been approved by Partner in writing.
6.1 Either Party may terminate this Agreement or the provision of the services under it without notice should the other Party: (i) commit a Material Breach of this Agreement, which is capable of remedy, and fails to remedy the breach within sixty (60) days following the date of the written notice to do so; or (ii) commits a Material Breach of this Agreement which by nature cannot be remedied, is the subject of a bankruptcy order, or becomes insolvent, or makes any arrangement or composition with or assignment for the benefit of its creditors, or if it goes into either voluntary or compulsory liquidation.
6.2 A Party shall not be liable for Material Breach pursuant to this clause in circumstances where it is not able to carry out its obligations under this Agreement as a direct result of: (i) A breach by the other Party and/or a failure or delay by the other Party and/or any third party subcontractors or agents appointed by the other Party to complete or deliver some material: document, specification, connectivity or other deliverable, as expressly required by and contemplated in this Agreement; or (ii) Force Majeure.
6.3 Sugar Yard may terminate this Agreement and Partner will forfeit all monies resulting therefrom if: (i) Partner has become or is likely to become subject to litigation or other regulatory legal action that may adversely affect This is Productivity’s business; (ii) Partner sends unsolicited communication or emails to This is Productivity’s Customers, clients and social followers, except as it relates to negotiations or communications related to commercial terms in a PSA, or (iii) provides false account information.
6.4 Where Partner terminates its agreement with Customer, it shall notify This is Productivity promptly and in advance of such termination where reasonably possible.
6.5 Upon termination of this Agreement, Partner must immediately remove from Partner’s website(s), and cease from using, referencing or otherwise associating with This is Productivity, including, without limitation, (i) any Advertising or Links, (ii) any This is Productivity brands, and (iii) any Sugar Yard Products and Services, unless the Parties agree to the contrary in writing.
7. Intellectual Property Rights and Data Protection
7.1 All rights in and to any materials and documentation supplied to Partner pursuant to this Agreement are reserved by This is Productivity and its licensors, including all IPR and This is Productivity Confidential Information. Partner is hereby granted a revocable, personal, non sub-licensable, royalty free, nonexclusive license for the Term to use This is Productivity logos and branding without modification and This is Productivity materials supplied to Partner solely for the purposes of the Agreement to enable it to fulfil its obligations. This license shall automatically terminate at the end of the Term.
7.2 All rights in and to any materials, documentation and Software supplied to This is Productivity pursuant to this Agreement are reserved by Partner and its licensors, including all IPR and Partner Confidential Information. This is Productivity is hereby granted a revocable, royalty free, nonexclusive license for the Term to use Partner logos and branding without modification and Partner materials and Software supplied by Partner to This is Productivity or Customer for the purposes of the Agreement.
7.3 Partner must not, during the Term or for one (1) Year after its expiry or early termination, directly or indirectly request, encourage, canvass, solicit or endeavour to entice or employ any This is Productivity employee or person independently contracted by This is Productivity to provide any Products and/or Services in connection with the Partner Software or other software training, Implementation, development or maintenance or support, subject to written prior agreement to the contrary.
7.4 Where This is Productivity is provided with access to or retains or hosts any such Personal Data supplied by Partner, This is Productivity warrants and undertakes to Partner that: it shall only use and process such Personal Data to the extent required to comply with its obligations under the Agreement and PSA, that it shall never use such Personal Data accumulated on behalf of Customer other than as expressly authorised under the PSA. The Parties shall comply with the Data Protection Act of 1998 and regulations including the Data Protection Directive 95/46/EC in respect of all Personal Data supplied or made accessible by it to This is Productivity shall be ultimately responsible to third parties for the processing of such personal information. Partner agrees to indemnify, keep indemnified, hold harmless and, upon the This is Productivity’s request, defend This is Productivity and its directors, officers, employees, shareholders and agents from and against any and all damages, liabilities, expenses, claims, fines and losses of any type.
7.5 This is Productivity will not share any Personal Data it collects on behalf of Customer pursuant to the PSA with Partner or any third party except in carrying out its obligations pursuant to the PSA. Notwithstanding, This is Productivity may disclose Personal Data in the following cases: (a) to satisfy any applicable law, legal process,subpoena or governmental request; (b) as provided by this clause; or (c) to fulfil its obligations under this Agreement.
8. Confidential Information
8.1 Neither Party hereto shall use the other Party’s Confidential Information for any purpose other than to fulfil its obligations arising under this Agreement or the PSA. Each Party hereto shall use reasonable efforts to keep confidential the other Party’s Confidential Information and shall not disclose such information to any person or entity other than its employees, agents, advisors and affiliates on a need to know basis and who agree to comply with this clause 8 or other than as required to fulfil its obligations arising under this Agreement or the PSA. Each Party hereto shall be responsible for the breach of this clause by its employees, agents, and affiliates. As between the Parties, the Confidential or Proprietary Information of each Party will remain its sole property.
8.2 Upon termination or expiration of the Agreement, or upon written request of the other Party, each Party shall promptly return to the other all documents and other tangible materials and return and/or destroy any electronic data representing the other’s Confidential Information and all copies thereof in its possession, custody or control and using best endeavours reasonable in all the circumstances.
9. PR and Marketing
9.1 The Parties shall use reasonable endeavours to agree co-marketing opportunities that Partner and This is Productivity can engage in on a joint basis. Within 30 days of the Effective Date, the Parties may agree a joint press release,such agreement not to be unreasonably withheld, conditioned or delayed. Except as set out in this clause, neither Party will make any public statement, whether by press release or otherwise, regarding this Agreement or related matters without the prior written consent of the other Party.
9.2 Partner’s logos and a hyperlink to Partner’s website may be included in relevant This is Productivity corporate web site pages and Partner’s name may be included in a general listing of TIP’s or This is Productivity’s clients, partners and customers. This is Productivity may request and Partner shall provide references to third parties in respect of the Products and/or Services from time to time, such references not to be unreasonably withheld or delayed.
9.3 Partner shall provide, at This is Productivity’s request, reasonable cooperation in the creation of Customer success stories and shall work with the Customer directly to create these stories about the Services offered by This is Productivity during the Implementation process. During and after the Term, neither Party will disparage the other Party, the other Party’s website or the other Party’s(Partner’s) Software, (This is Productivity’s) Products and/or Services, or portray any of these in a derogatory or negative manner.
10. Data Protection
In this clause, capitalised terms are as defined in the Data Protection Act 1998. Partner hereby authorises and grants to This is Productivity a limited, nonexclusive, revocable license, during the Term, to use any Partner employee and subcontractor Personal Data and Customer Personal Data supplied to This is Productivity by Partner for the sole and limited purpose of complying with the Agreement and the PSA and providing the Products and/or Services to Customer. for the avoidance of doubt, it shall be acting as a Data Processor only in respect of any such Personal Data; it 3 shall process such personal data only in accordance with Partner’s written instructions; it shall take such technical and organisational measures against unauthorised or unlawful processing of such Personal Data and against accidental loss or destruction of, or damage to,such Personal Data as are appropriate or as required by best industry practice.
11. Warranties, Indemnities, Limitation of Liability
11.1 Each Party warrants to the other Party that it has for the Term such licenses, permissions, consents and authorisations as are necessary for the proper performance of its obligations under this Agreement, full capacity and authority and all necessary rights in connection with its Intellectual Property Rights required to enter into and to perform its obligations under this Agreement without infringing any third party rights. Subject to the express warranties in this clause, This is Productivity provides the Products and/or Services on an “as is” and “as available” basis and expressly disclaims to the maximum extent permitted by applicable law, any and all representations and warranties, express, implied or statutory, as to merchantability, fitness for a particular purpose, quiet enjoyment,system integration and data accuracy. No representations are made or warranties provided that the Products and/or Services will be timely, error free or uninterrupted. Each Party shall indemnify and hold harmless the other Party and its officers, directors, authorised agents, and employees, from and against any and all damages, losses, liabilities, awards, settlements, judgments, costs and expenses (including but not limited to, reasonable lawyers’ fees) relating to or resulting from any damage by the indemnifying Party’s employees to the other Party’s property from any pending or threatened action, suit, claim, demand or proceeding that arises out of any allegation that the indemnifying Party’s IPR or any part of it infringes the rights of a third party in or to any registered patent, copyright, or trademark or otherwise violates applicable law.
11.2 Notwithstanding any other provision of this Agreement, all terms of any kind whatsoever implied by statute or common law are, to the extent permitted by applicable law, excluded from this Agreement. Either Party’s total aggregate liability for all causes of action or claims in the aggregate, including without limitation, for breach of contract, tort, breach of warranty or indemnity, negligence, strict liability, misrepresentation, claims for failure to exercise due care in the performance of services or obligations or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited in respect of all breaches to €100,000. To the extent permitted by applicable law neither Party shall be liable for any loss of profits, loss of business or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses arising in connection with this Agreement. Neither Party limits its liability for: fraud or theft by it or its employees; or death or personal injury caused by its negligence or that of its employees, agents or subcontractors; or fraudulent misrepresentation.
12.1 Each Party shall comply with Bribery Act 2010 as amended from time to time and will procure that its employees will not accept or give any commission, gift or other financial benefit or inducement from or to Customer or from or to associated companies in connection with the Agreement.
12.2 This Agreement embodies the entire agreement of the Parties relating to the subject matter hereof and supersedes all prior understandings or agreements between the Parties relating to the same. This Agreement may be executed by electronic or facsimile transmission or pdf and in counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument.
12.3 No modification, amendment, supplement to, or claimed waiver of this Agreement, or any of its provisions,shall be binding upon the Parties unless made in writing and duly signed by both Parties.
12.4 Any notices, consents, or other communications under this Agreement to a Party shall be in writing and shall be hand delivered or sent by registered mail (return receipt requested), confirmed fax, or traceable, recognised express delivery service, to the authorised individual who has been designated to be the primary project contact and manager by the Party being sent such notice at the address or fax number provided by that Party in the Agreement or to such other individual or at such other address as either Party may in the future specify to the other Party. Notices shall be effective upon actual receipt, or seven days after deposit in the mail or if sent by email.
12.5 If any term of this Agreement is held to be invalid or unenforceable, such holding will not affect the validity or enforceability of any other term hereto, and this Agreement will be interpreted and construed as if such term, to the extent the same will have been held to be invalid or unenforceable, had never been contained herein.
12.6 This Agreement, any prior existing Confidential Information agreement between the Parties and any non contractual obligations arising in connection with the Agreement shall be governed by and construed in accordance with the laws of England and Wales. Each Party irrevocably submits to the exclusive jurisdiction of the English courts in respect of all disputes.