Inventory Planner Partner Agreement

You accept this Agreement and bind yourself (if you are not joining on behalf of a business) or the business you represent to it (including these Terms and Conditions) by: (i) clicking through it; checking a box or performing some other positive action to signify your acceptance to them electronically; (ii) signing them or any other document that references them; or (iii) by referring Leads to us. If you do not accept this Agreement, then please do not proceed to access the Portal and do not refer Leads to us.

From time to time, Sage may amend the terms of this Agreement in its sole discretion. Sage will use reasonable efforts to notify you of any material changes by sending you an email or posting a notice within Portal, but it is up to you to ensure that you regularly check, read, understand and agree to the most recent version of this Agreement. By continuing to access the Portal or to refer Leads to us, you are indicating that you agree to be bound by the modified terms of this Agreement.

Recitals

WHEREAS, Sage wants Partner to promote the Sage Products/Services in accordance with the terms of this Agreement.

NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

1. Definitions. 

Affiliate means any entity that directly or indirectly Controls, is Controlled by, or is under common Control of the subject entity. An entity is an Affiliate only so long as such Control continues.

Agreement means this agreement comprising these Terms and Conditions, all Schedules and any other documents incorporated by reference.

Anti-Bribery Requirements means all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption including but not limited to the UK Bribery Act 2010 and the US Foreign Corrupt Practices Act.

Certification Requirements means those minimum training, certification and commitment requirements that the Partner shall comply with as set out in Schedule 2.

Commission means the amount due from Sage to Partner as set out in clause 4 and Schedule 1. 

Confidential Information means any and all information which is disclosed by either party (“Discloser”) to the other (“Recipient”) pursuant to or in connection with this Agreement (whether orally, in writing and whether or not such information is expressly stated to be confidential) or which otherwise comes into the hands of a party which is either proprietary to a party or would be confidential by operation of law, or which is expressly stated by the disclosing party to be confidential or sensitive information including business and technical information (including source code, technical and development specifications, APIs, documents, drawings, schematics depicting code and coding or business logic use to develop code), Sage Software and Services, business plans, the terms of this Agreement and the like.

Control means direct or indirect ownership or control of more than 50% of the voting interests in the Partner entity.

Customers means subscribers to the Sage Products/Services.

Data Protection Laws means all applicable laws and regulations governing the use or processing of personal data, including the General Data Protection Regulation (EU) 2016/679, the UK Data Protection Act 2018 (and regulations made thereunder), the UK GDPR, the Privacy and Electronic Communications (EC Directive) Regulations 2003 (as applicable) and any other relevant local laws implementing or supplementing or superseding the foregoing relating to the protection of Personal Data; and the terms “Controller”, “Data Subject”, “Personal Data”, “Personal Data Breach”, “Processing” and, “Processor” have the meanings set out in the Data Protection Legislation.

EEA means the European Economic Area.

Effective Date means the last date of signature of this Agreement.

Intellectual Property Rights means all vested contingent and further intellectual property rights including goodwill, reputation, rights in confidential information, rights to sue for passing off or unfair competition, copyright, trademarks and design rights whether registered or unregistered, logos, devices, plans, models, diagrams, specifications, source and object code materials, data and processes, patents, know-how, trade secrets, inventions, get-up, database rights and (as applicable) any applications or registrations for the protection of these rights and renewals and extensions of them, existing in any part of the world, whether now known or created in the future.

Lead means a prospective customer which has not previously been identified by Sage as requiring the Sage Products/Services and which, in Sage’s reasonable opinion, has a business requirement for the Sage Products/Services within a period of 6 months from the date of the referral, and is based in the Territory.

Net Income means the payments actually received by Sage for the Sage Products/Services under a Relevant Contract less any value added tax or other sales tax on them, any discounts or rebates granted by Sage and any third party costs, including, but not limited to, bespoke services, implementation services and Partner services

“Partner”, “you” or “your” the person accepting this Agreement, provided that if such acceptance is on behalf of a company or other legal entity then: (i) the person represents that they have the authority to bind such entity and its Affiliates to the terms of this Agreement; and (ii) “you” and “your” refers to such entity and, to the extent appropriate, such Affiliates.

Partner Code of Conduct means Sage’s partner code of conduct hosted at www.sage.com, or as otherwise published, released or made available by Sage from time to time.

Partner Mark(s) means any name, trademark, insignia, logo, symbol or slogan (registered or unregistered) which is owned or used by Partner now or in the future anywhere in the world.

Portal means the Sage sales portal which Sage shall make available to the Partner to enable the Partner to register Leads and for the payment of Commission (if applicable).

Prospective Customer means an entity to which Sage has not at any time previously provided the Sage Products/Services in the Territory.

Relevant Contract means a contract for the supply of the Sage Products/Services entered into between the Sage and a Prospective Customer during the Term to which Sage has not previously provided the Sage Products/Services, and which directly results from a Lead by Partner.

Restricted Transfer Documentation shall collectively mean, for the transfer of Personal Data outside of the EEA or UK (as applicable) the applicable module of the standard data protection clauses adopted or approved by the European Commission in accordance with Commission Implementing Decision (EU) 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of Personal Data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council and Annex to such Decision (the “EU SCCs”), the UK Addendum or the UK IDTA.

“Sage”, “we” “us” or “our” means Brightpearl Limited (CRN: 06260621) with a registered office address at C23 – 5 & 6 Cobalt Park Way Cobalt Park, Newcastle Upon Tyne, United Kingdom, NE28 9EJ where the Partner is based in the United Kingdom or Brightpearl, Inc. with offices located at 211 East 7th Street, Suite 800, Austin, Texas 78701, where the Partner is based in the United States.

Sage Mark(s) means any name, trademark, insignia, logo, symbol or slogan (registered or unregistered) which is owned or used by Sage or a Sage Affiliate now or in the future anywhere in the world.

Sage Products/Services means Inventory Planner or such other Sage products and services as agreed between the parties from time to time.

Taxes means any taxes, duties or similar governmental assessments of any nature, including, for example, VAT, GST, sales, use or withholding taxes, assessable by any jurisdiction whatsoever.

Term has the meaning set out in clause 2.

Territory means the UK where the Partner is based in the UK or the USA where the Partner is based in the USA.

UK Addendum means the template Addendum B.1.0 issued by the ICO and laid before UK Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022, as it may be revised from time to time.

UK IDTA means the template IDTA A.1.0 issued by the ICO and laid before UK Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022, as it may be revised from time to time.

2. Term. This Agreement shall commence on the Effective Date and, subject to earlier termination pursuant to the terms of this Agreement, shall continue for a period of twelve (12) months (“Initial Term”). Unless terminated earlier in accordance with clause 6, this Agreement shall automatically extend for a period of twelve (12) months (“Renewal Term”) at the end of the Initial Term and at the end of each Renewal Term. If a party does not want to extend this Agreement beyond the Initial Term or a subsequent Renewal Term (as the case may be) then that party must provide the other party with at least sixty (60) days’ advance written notice of its wish to terminate the Agreement prior to the last day of the Initial Term or the Renewal Term (as appropriate).

3. Appointment. Subject to the terms set out below, Sage grants to Partner a non-exclusive right to directly and indirectly market and promote the Sage Products/Services to Prospective Customers in the Territory and refer such Prospective Customers to Sage for enquiries, subscriptions and/or purchases of such Sage Products/Services. Sage may, at no cost, provide the Partner with marketing materials for the Sage Products/Services and Partner shall have the right to use such materials when promoting and marketing the Sage Products/Services.

4. Referrals and Commission. 

4.1 Required Information. During the term of this Agreement, Partner shall (subject always to the provisions of this clause 4.1) provide Sage with the following information about Leads via the lead referral form as set out on the Portal:

4.1.1 details of the organisation;

4.1.2 key contact name;

4.1.3 contact details;

4.1.4 a brief written overview of the Lead’s current requirements and existing systems;

4.1.5 a summary of the reason for the referral; and

4.1.6 such other information as Sage may reasonably request from time to time.

The Partner shall keep the Portal updated with the current status of the Lead and opportunity throughout the sales cycle.

4.2 Notification. Within 10 working days of the date of a referral, Sage will notify Partner whether or not the Prospective Customer constitutes a Lead and Partner acknowledges that it is entirely at Sage’s discretion (acting reasonably) whether or not to categorise a Prospective Customer as a Lead.

4.3 Commission. In the event that Sage completes a sale for any Sage Products/Services with a Lead, Sage will;

4.3.1 notify Partner of such sale within 30 days of the date of the sale in accordance with clause 4.6; and

4.3.2 subject to clause 4.5 and any instructions that may be included on the Portal, pay the Commission to Partner as set out in Schedule 1.

4.4 Invoices. Partner shall raise an appropriate invoice in a timely manner after Commission becomes due but no later than three (3) months following the date the Commission becomes due. Partner is only entitled to raise one (1) invoice per quarter where Commission is due.

4.5 Payment of Commission. Partner is not entitled to be paid Commission unless:

4.5.1 Sage has received payment in full of the applicable Sage Products/Services in cleared funds; and

4.5.2 Partner’s account (if any) is fully-paid up to date; and

4.5.3 Partner has submitted to Sage a valid invoice for any Taxes in respect of the relevant Commission in accordance with clause 4.4.

Subject to this clause 4.5, Sage will pay Commission within 30 days of receipt of a valid invoice. All payments will be made by one of Sage’s standard payment methods from time to time.

4.6 Monthly Sales Report. Sage shall provide to Partner a monthly sales report setting out sales of the Sage Products/Services in the previous month that have been made pursuant to this Agreement.

4.7 Partner will notify Sage if it disputes the monthly sales report and within fourteen (14) days, a Sage manager and Partner manager will meet in good faith to try to resolve the dispute. If the dispute cannot be resolved at the meeting, the parties shall escalate the dispute to senior management. Each party’s senior management will in good faith attempt to resolve the dispute within thirty (30) days of the date of escalation. Once the monthly sales report is agreed, Partner will then invoice Sage for the Commission and Sage shall pay the invoice within thirty (30) days.

4.8 If Partner does not dispute the monthly sales report (under clause 4.7), it will invoice Sage the Commission calculated on the basis of the monthly sales report and Sage shall pay such invoice within thirty (30) days.

4.9 Taxes. Commissions are exclusive of VAT or other applicable sales taxes or other indirect taxes. Where applicable, VAT or other applicable sales taxes or other indirect taxes will be included on the invoice issued by one party to the other in addition to the value of the Commission. Where any such taxes are imposed each party shall provide the other with any documents as may be required under law in such form and within any such timing deadlines as may be required by the same.

4.10 Changes to Commission. Sage may change the amount of Commission payable to the Partner in respect of Relevant Contracts and new Leads at any time during the term of this Agreement, upon providing the Partner with 90 days’ advance written notice.

5. Obligations and Warranties. 

5.1 Partner Warranty. Partner warrants and represents that: (a) it has the power and authority to enter into and perform under this Agreement; and (b) it has obtained and shall continue to obtain all necessary permissions and consents required under all applicable law including (but not limited to) Data Protection Laws and requirements under clause 12.

5.2 Partner Obligations. Partner acknowledges and agrees:

5.2.1 it has not and shall not hold itself out as having any authority to promote, make offers or quotations to, or negotiate with, or solicit any orders for, or sell licences for the Sage Products/Services, to any person, and further Partner has not and shall not hold itself out as having any authority to accept any order on Sage’s behalf or otherwise bind Sage;

5.2.2 not to pledge Sage’s credit, receive any money or give any receipt on Sage’s behalf or compromise any debt due to Sage or incur any other liability or obligation, or make any promise or representation on Sage’s behalf or claim to do any such similar thing;

5.2.3 it shall not make or give any representations, warranties or other promises concerning the Sage Products/Services; and

5.2.4 that in the event it supplies any implementation services to a customer in respect of the Sage Products/Services then such services shall be scoped and billed by the Partner to the Customer and subject to an agreement between the Partner and the Customer.

5.3 Partner Indemnity. Partner shall indemnify and keep Sage fully indemnified from and against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by Sage arising out of or in connection with:

5.3.1 any breach by Partner of any of the warranties set out in this Agreement; and

5.3.2 Partner’s breach or negligent performance or non-performance of this Agreement.

5.4 Indemnification by Sage. Sage shall defend, indemnify and hold the Partner and its officers, directors, agents and employees, harmless from any costs (including reasonable legal fees, costs and expenses), loss, damage or liability resulting from a claim that the Sage Marks infringe any trademark, copyright, licence, trade secret, or other intellectual property or proprietary right of a third party.

5.5 Indemnification Procedure. The indemnities above shall only apply if:

5.5.1 the indemnified party (the “Indemnified Party”) notifies the indemnifying party (the “Indemnifying Party”) in writing promptly upon learning that the claim has been asserted provided that the failure to provide such notification shall not relieve the Indemnifying Party of its obligations under this clause 5.5 unless and to the extent such failure prejudices the Indemnifying Party’s ability to defend the claim); and

5.5.2 the Indemnifying Party has sole control over the defence of the action and any negotiation for its settlement or compromise (provided that the Indemnifying Party shall not have the right, without the Indemnified Party’s prior written consent, such consent not to be unreasonable withheld or delayed, to settle or compromise such action if such settlement or compromise contains an admission or acknowledgement of any liability or wrongdoing, whether in contract, tort or otherwise, on the part of the Indemnified Party or its Affiliates).

5.6 In addition to the Indemnifying Party’s defence and indemnity obligations, the Indemnifying Party shall reimburse the Indemnified Party for its reasonable legal fees and other costs in responding to an indemnifiable claim up to the time that the Indemnifying Party assumes the control of the defence of such claim, provided the Indemnified Party has promptly notified the Indemnifying Party of the claim and, if the Indemnifying Party fails to assume the control of the defence, thereafter. If the Indemnifying Party assumes the control of the defence, the Indemnified Party may participate in the defence and settlement discussions with lawyers of its own choosing and at its own expense.

6.Termination. 

6.1 Termination for Convenience. Sage may terminate this Agreement on giving not less than thirty (30) days written notice to the other party at any time.

6.2 Termination for Breach. Without prejudice to any rights that have accrued under this Agreement or any of Sage’s or Partner’s other rights or remedies, either party may terminate this Agreement for breach: (a) upon 30 days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period, or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

6.3 Sage’s Right to Terminate. Sage may terminate this Agreement with immediate effect on written notice to Partner if: (a) there is a change of Control in the Partner; or (b) the Partner breaches clause 12.

7. Post Termination. 

7.1 Effect of Termination. If this Agreement expires or is terminated for any reason:

7.1.1 Partner shall immediately cease all use of any Sage Marks or Sage partner and logos; and

7.1.2 Sage shall immediately cease all use of any of Partner Marks and logos.

7.2 In the event that either party terminates this Agreement pursuant to clause 6 then:

7.2.1 with effect from the end of such written notice (“Termination Date”), Sage shall be immediately required to pay any Commission due for sales to Customers made pursuant to this Agreement; and

7.2.2 the parties shall destroy or return to the other party any documents and materials (and any copies) containing, reflecting, incorporating or based on the other party’s Confidential Information and subject erase the other party’s Confidential Information stored by it electronically from all systems, services or devices used by it or under its control.

7.3 No Prejudice. Subject to clause 7.4, any termination of this Agreement shall not affect any rights or liabilities of either party accrued prior to such termination, nor shall it affect the coming into force or the continuance in force of any provision of this Agreement, which is expressly or by implication intended to come into force or continue in force on or after termination.

7.4 In the event of termination of this Agreement, all undisputed Commission owed to the Partner shall remain due. Commission will cease to accrue and be payable to Partner from the date of termination of this Agreement.

7.5  Survival. The provisions of clauses 1 (Definitions and Interpretations), 4 (Referrals and Commission, to the extent commission remains due), 7 (Post Termination), 8 (Data Protection), 9 (Limitation of Liability), 10 (Ownership and Proprietary Rights), 11 (Confidentiality), 12 (Anti-Bribery, Corruption and Sanctions) 13 (Sage Business Protections) and 14 (General) and any other clauses which by their express terms survive the expiration or termination of this Agreement shall survive termination of this Agreement however caused.

8. Data Protection 

8.1 Capacity. Each party acknowledges that:

8.1.1 it acts in the capacity of an independent Data Controller in respect of any Personal Data it receives under this Agreement; and

8.1.2 it shall act in the capacity of a Data Processor in respect of any Personal Data it Processes on behalf of a Sage Customer, the supply of which shall be governed by an independent agreement between the Customer or End User and either Sage or Partner, as applicable, but at no point does Sage or Partner intend to act in the capacity of a Data Processor on behalf of the other under the terms of this Agreement or as joint Data Controllers.

8.2 Undertakings. Each party agrees:

8.2.1 to comply with all applicable Data Protection Laws;

8.2.2 to be responsible for its own contracting relationships with third parties, other members of its group and its own Data Processors;

8.2.3 to ensure that it processes any shared Personal Data fairly and lawfully, and ensure that it has legitimate grounds under Data Protection Laws for the Processing of the shared Personal Data;

8.2.4 to be responsible for the compliance of its Processing (and of other members of its group, if any) under this Agreement as Data Controller;

8.2.5 to be responsible for the compliance of its intra-group transfers (if any) of Personal Data;

8.2.6 to be responsible for the compliance of its transfers (if any) of Personal Data to Processors and / or other suppliers;

8.2.7 to be responsible for the compliance of its handling of and response to Data Subjects’ requests under any applicable Data Protection Laws, regardless of any assistance the other party may provide;

8.2.8 to provide such assistance as is reasonably required to enable the other party to comply with requests from Data Subjects to exercise their rights under the Data Protection Laws within the time limits imposed by the Data Protection Laws;

8.2.9 to only provide any shared Personal Data to the other using secure methods as agreed between the parties;

8.2.10 to have in place through the Term appropriate technical and organisational security measures to:

8.2.10.1 prevent unauthorised and unlawful Processing of any shared Personal Data and the accidental loss or destruction of, or damage to, any shared Personal Data;

8.2.10.2 ensure a level of security appropriate to the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage; and the nature of any shared Personal Data to be protected; and

8.2.10.3 otherwise comply with all its Data Controller obligations under any applicable Data Protection Laws.

8.3 Joint Data Controllers. If and to the extent that the parties shall later determine that their arrangement has become one of joint Data Controllers, they shall comply with the requirements set out in article 26 of the GDPR.

8.4 Data Transfers. As a condition precedent to the parties entering into this Agreement, where Personal Data is transferred to one party by the other party from a Member State of the EEA, the United Kingdom or Switzerland to a country or recipient that is: (a) not recognised as providing adequate levels of protection for Personal Data pursuant to Data Protection Laws; and (b) not otherwise covered by a suitable framework recognised by relevant authorities as providing an adequate level of protection for Personal Data, the parties shall enter into the Restricted Transfer Documentation which shall govern the transfer of such Personal Data, and take any further steps required under Data Protection Laws in relation to such transfer. In the event that the Restricted Transfer Documentation is no longer valid or are otherwise unavailable, the parties shall enter into such other documentation as may be reasonably required to ensure compliance with any Data Protection Laws.

9. Limitation of Liability. 

9.1 EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SAGE PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND IS ONLY FOR COMMERCIAL USE, SUBJECT TO ANY RESTRICTIONS IN THIS AGREEMENT. SAGE, ON BEHALF OF ITSELF, ITS AFFILIATES AND LICENSORS, DISCLAIM TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW ALL OTHER REPRESENTATIONS, WARRANTIES AND GUARANTEES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING THOSE (I) OF MERCHANTABILITY OR SATISFACTORY QUALITY, (II) OF FITNESS FOR A PARTICULAR PURPOSE, (III) OF NON-INFRINGEMENT AND (IV) ARISING FROM CUSTOM, TRADE USAGE, COURSE OF PRIOR DEALING OR COURSE OF PERFORMANCE. EXCEPT AS EXPRESSLY PROVIDED HEREIN, SAGE, ITS AFFILIATES AND ITS LICENSORS DO NOT WARRANT THAT A CUSTOMER’S USE OF THE SAGE PRODUCTS AND SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE SAGE PRODUCTS AND SERVICES, AND/OR THE INFORMATION OBTAINED BY A CUSTOMER THROUGH THE SAGE PRODUCTS AND SERVICES WILL MEET A CUSTOMER’S REQUIREMENTS OR PRODUCE PARTICULAR OUTCOMES OR RESULTS, OR THAT THE SAGE PRODUCTS AND SERVICES WILL PRODUCE ERROR-FREE MACHINE-GENERATED ANALYSIS, BENCHMARKS OR INSIGHTS. SAGE IS NOT RESPONSIBLE FOR ANY ISSUES WITH THE SAGE PRODUCTS AND SERVICES THAT ARISE FROM CUSTOMER DATA, THIRD-PARTY SERVICES OR THIRD-PARTY PROVIDERS. THE PARTNER ACKNOWLEDGES THAT SAGE DOES NOT PROVIDE ANY ACCOUNTING, TAXATION, FINANCIAL, INVESTMENT, LEGAL OR OTHER ADVICE TO THE PARTNER, CUSTOMERS, OR ANY THIRD PARTY.

9.2 Except in cases of fraud, death or personal injury arising from a party’s negligence and any other matter that may not be excluded by law, neither party shall be liable to the other for indirect, incidental, special, punitive or consequential loss or damage, whether it is known, foreseen or foreseeable (including but not limited to loss of profits, revenues or contracts, lost savings, business interruption, lost funding, loss of goodwill or reputation, wasted expenditure or loss or corruption of data).

9.3 SUBJECT TO CLAUSES 9.2 AND 9.4, IN ANY CALENDAR YEAR, SAGE’S LIABILITY TO PARTNER UNDER OR IN CONNECTION WITH THIS AGREEMENT ARISING FROM TORTIOUS ACT OR OMISSION INCLUDING NEGLIGENCE, BREACH OF CONTRACT OR STATUTORY DUTY, AND ANY OTHER LIABILITY, WILL NOT EXCEED THE TOTAL AMOUNT OF COMMISSION PAID OR PAYABLE BY SAGE TO PARTNER IN ACCORDANCE WITH THIS AGREEMENT IN THE RELEVANT CALENDAR YEAR.

9.4 Nothing in this Agreement shall limit or exclude liability under or in connection with:

9.4.1 any indemnities given in this Agreement; and

9.4.2 a party’s breach of clause 12.

9.5 Each of the limitations and exclusions set out in this clause 9 (Limitation of Liability) is to be construed as a separate limitation or exclusion, applying and surviving even if for any reason one or other of the limitations or exclusions is held to be inapplicable or unreasonable in any circumstances, so that if either party becomes liable for loss or damage which would otherwise have been excluded, such liability shall be subject to the other limitations and provisions set out in this Agreement.

10. Ownership and Proprietary Rights. 

10.1 Sage Proprietary Rights. Sage and/or its licensors retain all right, title and interest in the Sage Products/Services including any updates and upgrades to them, all derivative works of the Sage Products/Services and all proprietary rights in them, both during and after termination of this Agreement. Partner agrees that Sage owns all right, title and interest along with all copyright, trade secret, patent, trademark and other Intellectual Property Rights therein. Except for the limited rights granted expressly by Sage to Partner under this Agreement, Sage reserves all rights, title and interests in and to the Sage Products/Services and no right, title, ownership, interest or licence in or to the Sage Products/Services whether by implication, estoppel or otherwise is granted, assigned or transferred to Partner under or in connection with this Agreement.

10.2 Sage Marks. Subject to its continued compliance with this Agreement, Partner may use certain Sage Marks only to promote the Sage Products/Services as advised by Sage from time to time and in accordance with any guidelines issued by Sage. Sage and/or its licensors retain all right, title and interest in the Sage Marks, all derivative works of the Sage Marks and all proprietary rights in them, both during and after termination of this Agreement.

10.3 Partner will not register or use any Sage Mark, or any words, logo, device or any other branding which is similar to or mimics any Sage Mark, including as a product name, for its services or as a domain name. Unless Sage has given Partner prior written consent, Partner may not use or register any Sage Mark:

10.3.1 in connection with any web site owned, controlled or operated by Partner, including as a meta-tag;

10.3.2 on any web site or similar service or technology (including electronic marketing campaigns and auction web sites) operated, owned or controlled by another person; or

10.3.3 in connection with promotional activities undertaken by another person (even if they are carried out on its behalf or under its control), including as a key word, or as an on-line identity.

11. Confidentiality. 

11.1 Confidential Information. The Recipient hereby agrees that it shall not disclose any Confidential Information received from the Discloser other than as expressly permitted under the terms of this Agreement or as expressly authorised in writing by the other party.  The Recipient shall use the same degree of care to protect the other party’s Confidential Information as it uses to protect its own confidential information of like nature, but in no circumstances less than reasonable care.  The Recipient shall not disclose the Discloser’s Confidential Information to any person or entity other than its or its affiliates’ officers, principals, employees and subcontractors who need access to such Confidential Information in order to effect the intent of this Agreement and who are bound by confidentiality terms no less restrictive than those in this Agreement.

11.2 Exceptions.  The restrictions set forth in clause 11.1 shall not apply to any Confidential Information that the Recipient can demonstrate (a) was known to it prior to its disclosure by the Discloser; (b) is or becomes publicly known through no wrongful act of the Recipient; (c) has been rightfully received from a third party authorised to make such disclosure without restriction; (d) is independently developed by the Recipient; (e) has been approved for release by the Discloser’s prior written authorisation; or (f) has been disclosed by court order or as otherwise required by law, provided that the party required to disclose the information provides prompt advance notice thereof, to the extent practicable, to enable the Discloser to seek a protective order or otherwise prevent such disclosure.

11.3 Injunctive Relief. The parties agree that a breach of clause 11.1 may cause irreparable damage that money cannot satisfactorily remedy, and therefore, the parties agree that in addition to any other remedies available at law or hereunder, the Discloser shall be entitled to seek injunctive relief for any threatened or actual disclosure by the Recipient in breach of this Agreement.

12. Anti-Bribery, Corruption and Sanctions. 

12.1 Partner warrants that it will and will procure that persons associated with it including its Affiliates will:

12.1.1 comply with the Anti-Bribery Requirements;

12.1.2 not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;

12.1.3 have and maintain in place throughout this Agreement its own policies and procedures to ensure compliance with the Anti-Bribery Requirements and clause 12.1.2, and will enforce them where appropriate; and

12.1.4 if requested, provide Sage with reasonable assistance to enable Sage to perform any activity required by any relevant government or agency in any relevant jurisdiction for the purpose of compliance with any of the Anti-Bribery Requirements.

12.2 Partner will indemnify Sage and the Sage Affiliates against any losses, liabilities, damages, costs (including legal fees) and expenses incurred by, or awarded against, Sage and the Sage Affiliates as a result of its breach of this clause 12.

12.3 Partner shall permit Sage and its third-party representatives, on reasonable notice during normal business hours, but without notice in case of any reasonably suspected breach of this clause 12 to access and take copies of Partner’s records and any other information held at Partner’s premises and to meet with Partner’s personnel to audit Partner’s compliance with its obligations under this clause 12. Such audit rights shall continue for twelve (12) months after termination of this Agreement. Partner shall give all necessary assistance to the conduct of such audits during the term of and for a period of twelve (12) months after termination of this Agreement.

12.4 The warranties in clause 12.1 will apply mutatis mutandis to Sage.

12.5 If Sage terminates this Agreement for breach of this clause 12, Partner shall not be entitled to claim compensation or any further remuneration, regardless of any activities or agreements with additional third parties entered into before termination.

12.6 Compliance with Sanctions. The Partner hereby confirms that: (i) it shall, at all times during the term of this Agreement, conduct its business in compliance with all sanctions laws, regulations and regimes imposed by relevant authorities including but not limited to the Office of Foreign Assets Control (OFAC), the UN, the UK and EU sanctions; (ii) neither it nor any of its Affiliates is named on any “denied persons list” (or equivalent targeted sanctions list) in violation of any such sanctions restrictions, laws, regulations or regimes, nor is it or any of its Affiliates owned or controlled by a politically exposed person; and (iii) it has and shall maintain throughout the Term appropriate procedures and controls in place to ensure and be able to demonstrate its compliance with this clause 12.6. The Partner will promptly notify Sage if either it or any of its Affiliates has violated, or if a third party has a reasonable basis for alleging that it or any of its Affiliates has violated, this clause 12.6. The Partner shall indemnify (and keep indemnified) Sage, Sage Affiliates and their officers, directors, employees, attorneys and agents against any claims, costs, damages, losses, liabilities and expenses (including attorneys fees and costs) arising out of or in connection with the Partner’s breach of this clause 12.6.

13. Sage Business Protections 

13.1 Non-Solicitation. By entering into this Agreement, the Partner acknowledges that Sage has invested significantly, both financially and in terms of management time and effort, in recruiting and retaining skilled personnel. As such, the Partner for itself and on behalf of its Affiliates, agrees that it shall not, and procure that no Affiliate of the Partner shall (except with the prior written consent of Sage), during the Term and for a period of twelve months after termination or expiry of the Agreement, employ, solicit or entice away, or attempt to employ, solicit or entice away, from the employment or service of Sage or any Sage Affiliate the services of any Restricted Person other than by means of a general advertising campaign open to all-comers and not specifically targeted at such staff of Sage or any Sage Affiliate.

13.2 Remedy. If the Partner commits any material breach of clause 13.1, the Partner shall, upon demand by Sage, pay to Sage or the relevant Sage Affiliate a sum equal to fifty percent (50%) of one year’s basic salary or annual fee that was payable by Sage or the relevant Sage Affiliate to the Restricted Person, plus the recruitment costs incurred by Sage or the Sage Affiliate in replacing such person. In addition, such breach will be considered to be a material breach of this Agreement and Sage may terminate this Agreement immediately upon written notice.

14. General.

14.1 Miscellaneous. Headings in this Agreement are for reference purposes only and will not affect the interpretation or meaning of the Agreement. The words “including” and “such as” do not signify a limitation. If any provision of the Agreement is held by an arbitrator or a court of competent jurisdiction to be contrary to law, then the remaining provisions of the Agreement will remain in full force and effect. No delay or omission by either party to exercise any right or power it has under the Agreement will be construed as a waiver of such right or power. A waiver by either party of any breach by the other party will not be construed to be a waiver of any succeeding breach or any other covenant by the other party. All waivers must be in writing and signed by the party waiving its rights. References to clauses, schedules and exhibits are references to clauses, schedules and exhibits of and to this Agreement, and references to paragraphs are, unless otherwise stated, references to paragraphs of the Schedule in which the reference appears. Any references to a statute or statutory provision include, unless the context requires otherwise, a reference to that statute or statutory provision as from time to time amended, modified, extended, re-enacted, consolidated and all statutory instruments, orders, by-laws, directions and notices made pursuant to it made before or after the date of this Agreement.

14.2 Notices. Any notice required to be given by a party under this Agreement will be in writing and will be sent by pre-paid first class post to the party required to receive the notice at the address for that party as stated at the beginning of this Agreement (or any new details the parties may subsequently notify to each other). Any notice will be deemed to have been duly received if sent by pre-paid first-class post or recorded delivery, seventy-two (72) hours after posting.

14.3 Successors and Assigns. Neither party shall assign or transfer (by operation of law, change of control or otherwise) its rights or obligations under this Agreement to a third party, without the prior written consent of the other party. Notwithstanding the foregoing, Sage may assign or transfer this Agreement to any Sage Affiliate.

14.4 Entire Agreement. This Agreement and all appendices and attachments constitutes the whole agreement between Sage and Partner and supersedes all previous agreements between them relating to its subject matter. Sage and Partner each acknowledge that in entering into this Agreement, no reliance has been placed on and neither party will have any rights or remedies in respect of any statement, representation, assurance or warranty other than as expressly set out in this Agreement. Nothing in this clause 14.4 shall limit or exclude the liability of either Sage or Partner for fraudulent misrepresentation.

14.5 Relationship of Parties. Sage and Partner are independent contractors and neither party will represent itself as agent, servant, franchisee, joint venturer or partner of, or endorsed by, the other. Neither party has and will not hold itself out as having any authority to accept any order on the other party’s behalf.

14.6 Force Majeure. Neither party will be liable to the other for any failure to perform or for any delay in performance under this Agreement to the extent such non-performance or delay is caused by any circumstances beyond a party’s reasonable control including: fire, war, civil commotion, any act of central or local government, any industrial disputes, any act of terrorism, act of God, lockouts and strikes of any third party.

14.7 Third Party Rights. Except as expressly stated in this Agreement, nothing in this Agreement shall confer on any third party any right or benefit. The parties agree that this Agreement may be varied or rescinded without the consent of any third party.

14.8 Governing Law. If the Sage entity contracting with the Partner under this Agreement is:

14.8.1 Brightpearl Limited then this Agreement and any dispute or claim arising out of or in connection with it (including any non-contractual dispute or claims) shall be governed by and construed in accordance with English law and the parties submit to the exclusive jurisdiction of the English courts.

Schedule 1

COMMISSION AND COMMISSION PERIODS

 

Products	Commission payable to Reseller	Commission Periods
The Sage Products and Services	Subject to clause 4.10 of the Agreement, the Partner shall be entitled to a referral commission fee of ten per cent (10%) of the Net Income in relation to the first year’s annual contract value for each Relevant Contract entered into by Sage	Monthly

 

1. Managers. The points of contact for this Agreement of each party shall be those that they may nominate from time to time. These persons shall be the primary point of contact between the parties in relation to this Agreement including (without limitation) for the service of notices.