SALES AGREEMENT by and between Paessler AG The Network Monitoring Company Thurn-und-Taxis-Str. 14 90411 Nürnberg Germany - hereinafter: the Manufacturer - and << full company name >> << address, street, registered office >> << post code and place of registered office >> << country of registered office >> - hereinafter: the Reseller - Preamble Sec. 1. Subject-matter of Agreement The Manufacturer is the proprietor of the exclusive rights to the PRTG Network Monitor Software (hereinafter, the Contract Products ) and distributes them on a global basis. The Manufacturer is interested in further promoting the sale of the Contract Products through the Reseller and in achieving market penetration within the Territory (Schedule A). (1) The subject-matter of the present Agreement is the distribution by the Reseller of the Contract Products within the Territory: The Reseller is interested in assuming the further marketing, on a non-exclusive basis, of the Contract Products within the Territory, which is being sought by the Manufacturer and in achieving an expansion of the customer base for the Contract Products by intensely developing the market and providing expert advice. Subject to the terms and conditions of this Agreement, the Manufacturer shall provide the Reseller with the Contract Products, and the Reseller shall provide them to its own customers. In consideration of these premises, the Parties hereby agree as follows. 1/8, V.2018_01 1. through relationships, the Reseller s existing customer 2. to customers whom the Reseller shall attract as new customers, and 3. through the Manufacturer s existing customer relationships as well as the associated rights and duties of the Parties. (2) For purposes of distribution, the Reseller is granted the non-exclusive, non-transferable and non-sub-licensable right to market the Contract Products in the Territory during the term of this Agreement. The Territory is specified in Schedule A to this Agreement. Within the Territory, the Manufacturer continues to remain entitled to market the Contract Products itself, i.e. to sell the Contract Products itself to end customers or to other resellers.
Active distribution of Contract Products by the Reseller in other regions, which the Manufacturer has reserved for itself, or its distributors or other resellers shall require the Manufacturer s prior written consent. (3) The term Marketing within the meaning of this Agreement shall mean the Reseller s purchase of Contract Products from the Manufacturer and resale of the Contract Products on the Reseller s own responsibility to customers ( Marketing by Way of Resale ) for the Reseller s own account and in its own name. Marketing by Way of Resale shall include the Reseller s right to procure maintenance services from the Manufacturer based on a Maintenance Agreement and to pass them on to end customers on the basis of a maintenance agreement. (4) Marketing by Way of Resale (a) Contract between Manufacturer and Reseller The Manufacturer is selling and providing the Contract Products to the Reseller for distribution based on an individual contract in exchange for payment of the agreed purchase price. The Parties are in agreement that 1. the General Terms and Conditions of Paessler AG and 2. the Special Terms and Conditions for Licensing of the PRTG Network Monitor Standard Software (License Terms and Conditions) as in effect at the time of conclusion of each individual contract, shall each be an integral part of the respective individual contract. The UN Convention for the International Sale of Goods shall not apply. In addition, the Parties may agree in individual contracts that the Special Terms and Conditions of Maintenance of Standard Software of Paessler AG (as in effect at the time of entering into the individual contract in question) shall be an integral part of the respective individual contract. Terms and conditions of the Reseller departing from these Terms and Conditions shall not become part of or form the substance of the respective individual contracts, even if the Manufacturer is silent in this respect or if reference is made to letters of the Reseller containing such divergent terms and conditions, or by acceptance of an offer of the Reseller without objection or by performance of services by the Manufacturer without objection. The versions of the Terms and Conditions of the Manufacturer, which are current, and in force at the time of entering into the present Sales Agreement are appended to the present Sales Agreement as Schedule C. The Manufacturer shall forward the current version of the Manufacturer s respective Terms and Conditions to the Reseller upon request. In addition, the most recent valid 2/8, V.2018_01 version thereof may also be downloaded from the internet at https://www.paessler.com/company/terms. In the event of conflict between the provisions of this Contract Document and the provisions contained in the Manufacturer s Terms and Conditions, the provisions in this Contract Document shall take precedence. Unless otherwise agreed by the Parties, individual contracts are formed when confirmation of contract is forwarded by email in response to a binding offer. (b) Contract between Reseller and customer The Reseller shall enter into contracts for the purchase of a license with customers for provision of the Contract Products on a permanent basis. The Reseller is required to agree with each customer that the Special Terms and Conditions for Licensing of the PRTG Network Monitor Standard Software (License Terms and Conditions) shall be an integral part of each contract with the customer. For the avoidance of doubt: there is no requirement that Paessler AG s General Terms and Conditions or Paessler AG s Special Terms and Conditions for Maintenance of Standard Software shall be an integral part of the contract with each customer. The Reseller shall remain entitled to amend the Special Terms and Conditions for Licensing of the PRTG Network Monitor Standard Software (License Terms and Conditions) in contracts with its customers, provided that the substance of its contract terms remains unchanged. In contracts with its customers, the Reseller shall ensure that no rights to use the Contract Products on the part of its customers shall be created which go beyond the Special Terms and Conditions for Licensing of the PRTG Network Monitor Standard Software (License Terms and Conditions). In addition, the Reseller is authorized to agree with its customers that the Special Terms and Conditions of Maintenance of the Standard Software of Paessler AG, as current and in effect at the time of entering into each individual contract, shall be an integral part of each contract between the reseller and the its customer. There shall be no right for the Reseller to make agreements on terms substantively departing from Sec. 6 (Support by Paessler AG (Manufacturer)). In all further and other respects, the Reseller shall be at liberty to contract for maintenance services with its respective customers.
Sec. 2. Tasks and duties of Reseller (1) The Reseller undertakes that it shall attend to the Manufacturer s interests with the care of a prudent merchant. In particular, the Reseller shall exert all efforts to appropriately care for and supply its customer base served by it in technical and commercial respects, to develop business with them and, in addition, to acquire customers of its own and maintain an appropriate distribution system of its own. (2) The Reseller shall take all necessary measures in order to ensure that it is substantively qualified and that the staff deployed by it are substantively qualified, wherever this is required for performance of its services in line with the Agreement. (3) The Reseller shall act independently on the market. The Reseller is not authorized to represent the Manufacturer, nor does this Agreement empower it in any other manner to act as an agent of the Manufacturer; in particular, the Reseller is not a commercial agent. This Distribution Agreement shall, in addition, not establish any duty on the part of the Reseller to provide its customer base to the Manufacturer, nor does it establish any contractual obligation to provide customer data to the Manufacturer for purposes of the Manufacturer s marketing to the Reseller s customer base. Upon request of the Reseller, the Manufacturer shall be entitled (but shall have no obligation) to furnish the Reseller with additional support in the realm of marketing; the Reseller shall not have any entitlement to this. If the Manufacturer decides to furnish the aforementioned additional support, then the Parties shall make a separate agreement in each individual case, in particular with respect to whether the Manufacturer will render the additional support in the realm of marketing free of charge or whether an additional fee is agreed. The Manufacturer s support may be limited to providing a financial subsidy to the Reseller s expenses. On this point, as well, the Parties shall enter into a separate agreement in each individual case. This Sales Agreement does not impose any obligation on the Manufacturer to provide maintenance services for the Contract Products to the Reseller. The Manufacturer shall only provide such services on the basis of a corresponding individual contract. The Reseller s rights in the event of a defect of a Contract Product shall remain unaffected hereby. (4) Throughout the term of this Agreement, the Manufacturer grants the Reseller the non-exclusive and non-transferable right to duplicate the advertising material provided by the Manufacturer, wherever this is necessary for the Reseller to perform the tasks that it is obliged to undertake, and provided that there are no countervailing intellectual property rights of third parties. The Reseller hereby undertakes that it shall not copy any texts, images or other information from the Manufacturer s website which are not expressly provided for public use (e.g. contained within the marketing toolbox or the reseller portal) and use them for its own website materials, unless the Manufacturer has given its express, advance written consent thereto. (5) The Reseller shall bear the costs of attending trade fairs and other events at which the Reseller advertises for the Contract Products. (6) The Reseller shall inform the Manufacturer promptly in writing regarding all claims for defects of the Contract Product and also regarding other complaints from customers. (7) Where the Reseller breaches its obligations under this Agreement, it shall be liable to the Manufacturer in damages pursuant to the provisions of applicable law, except where it does not bear fault for the breach. (8) The Reseller is at liberty to set its own prices to its customers. Sec. 3. Duties of Manufacturer (1) The Manufacturer hereby undertakes that it shall support the Reseller to a reasonable extent in its activities and shall, in its reasonable discretion, provide documentation free of charge, including advertising materials required for performance of the activities stipulated by the Parties contracts. (2) During the term of this Agreement, the Manufacturer grants the Reseller the non-exclusive, non-transferable right, revocable at any time, to use the Manufacturer s trademarks to market the Contract Products within the Territory pursuant to the Manufacturer s guidelines (sec. 9). The Reseller is not authorized to use the Manufacturer s trademarks in search engine marketing (e.g. Google AdWords) except where the Manufacturer has given its prior express written consent. (3) The Reseller is not entitled to maintain/to use domains and subdomains of its own, which use the trademarks of the Manufacturer s Contract Products in the domain names. The Reseller hereby undertakes that, upon termination of this Agreement and irrespective of the grounds of termination, it shall refrain from any further use of the Manufacturer s trademarks and shall, at the Manufacturer s option, destroy all items bearing the Manufacturer s trademarks or return them to the Manufacturer free of charge. 3/8, V.2018_01
(4) The Manufacturer hereby undertakes that it shall provide regular information on the following points to the Reseller: - New products and new applications developed by the Manufacturer - Material changes to and modifications of the Contract Products - Examples from practice, sales arguments and advertising materials for the Contract Products - Manufacturer s analysis of the competition situation in respect of the Contract Products - Findings made in performance of its duty to monitor in respect of the Contract Products, in particular any indications of risks that might emanate from the Contract Products. Sec. 4. Prices and terms of payment (1) The Reseller shall pay the Manufacturer the price agreed in each individual contract for the agreed goods and services. Unless otherwise agreed by the Parties, the amount of the contract price shall be determined 1. on the basis of the then-current list price for the respective Contract Product and 2. in line with the partnering model pursuant to Schedule D. The terms of payment and bank details of the Manufacturer are shown in Schedule B to this Agreement and in each individual contract. In the event of conflict between the terms contained in this Contract Document and the provisions in Schedule B, the provisions in Schedule B shall take precedence. (2) The Manufacturer is not required to pay any separate compensation to the Reseller for the Reseller s performance of its services except where the Parties have expressly otherwise agreed. The discounts granted for procurement of the Contract Products for further marketing shall constitute full and final compensation for the Reseller s services. Sec. 5. Liability (1) The Manufacturer shall bear liability without contractual limitation in line with the provisions of applicable law 1. for intentional acts or omissions; 2. for losses where they are based on the fact that the Manufacturer has fraudulently concealed a defect of the Contract Products or has assumed a warranty for the quality of the Contract Products; 4/8, V.2018_01 3. for losses arising from injury to life, limb or health, for losses based on an intentional or negligent breach of duty by the Manufacturer or otherwise for intentional or negligent acts of a legal representative or vicarious agent of the Manufacturer; 4. for losses based on an intentional or grossly negligent breach of duty by the Manufacturer or otherwise on intentional or grossly negligent acts of a legal representative or vicarious agent of the Manufacturer; 5. under the German Product Liability Act. (2) In all cases other than those referred to in paragraph 1 hereof, the Manufacturer s liability shall be limited to compensation for the losses which are foreseeable and typical for the contract, where such losses were due to a negligent breach of material obligations by the Manufacturer or its legal representative or vicarious agent. Material obligations are obligations the performance of which are a sine qua non to proper performance of the Contract, and on compliance with which the Reseller would ordinarily rely and be entitled to rely. (3) In all cases other than those referred to in sub-paras 1 and 2, the Manufacturer shall have no liability for negligence. (4) In the event of rental of any Contract Product, the Manufacturer shall not be liable on a no-fault basis for defects which were already present at the time of formation of the Contract. (5) The defense of contributory negligence shall remain unaffected hereby. (6) The foregoing provisions governing the Manufacturer s liability for damages shall apply to all contractual and extra-contractual claims for damages against the Manufacturer, irrespective of their legal basis, and shall apply mutatis mutandis to the Manufacturer s liability to pay compensation for frustrated expenditures. (7) The foregoing limitations and exclusions of the Manufacturer s liability shall apply mutatis mutandis to any personal liability on the part of its officers and directors and agents as well as the Manufacturer s staff members, employees, workers and vicarious agents. Sec. 6. Term of Agreement and termination (1) This Agreement shall enter into force when signed by both Parties and is being made for an indefinite term. (2) Each Party shall be entitled to effect ordinary termination of this Agreement upon three months notice to the end of any calendar quarter. (3) The Parties rights to exercise extraordinary termination for good cause shall remain unaffected hereby.
(4) Any notice of termination shall only be valid if given in writing. (5) Termination of the Sales Agreement shall not affect the validity of individual contracts the Parties may have entered into. Conversely, termination of individual contracts the Parties have entered into shall not affect the validity of the Sales Agreement. Sec. 7. Winding up of Resellership (1) Immediately upon termination of this Agreement, the Reseller shall have a duty to return all documentation provided by the Manufacturer under this Agreement to the Manufacturer, except where the documentation has been consumed in accordance with its purpose. (2) Upon termination of this Agreement, the Reseller s right to market the Contract products within the Territory shall cease. Sec. 8. Confidentiality, data protection (1) Each Party hereto undertakes that it shall treat the substance of this Agreement and all non-public commercial and technical information from the respective other Party (hereinafter also the Disclosing Party ) provided to it (i.e. to the Recipient ) as a result of their business relations as a trade secret, and shall impose corresponding obligations on its staff. (2) This duty of confidentiality under sub-para. 1 hereof shall not apply if the Recipient who discloses the confidential information is able to prove that that confidential information 1. was in the public sphere at the time of disclosure to third parties or entered the public sphere thereafter without any fault on the part of the Parties; or 2. the Disclosing Party had given prior written approval to disclosure to third parties; or 3. following its provision by the Disclosing Party, it was provided to the Recipient by a third party in a legal manner and without any restrictions in respect of confidentiality or use; or 4. is required to be disclosed on the basis of a court or regulatory order or a legal requirement; the Recipient shall give timely written advance notice of such disclosure. (3) The Disclosing Party hereby further confirms, in writing, its consent to disclosure of the confidential information by the Recipient 1. to courts and/or public authorities, where this is required in order to enforce or defend claims/rights, and 2. to its advisors who bear a professional duty of confidentiality, such as solicitors, accountants and/or tax advisors of the Recipient, provided that this is required in 5/8, V.2018_01 performance of their contractual or legal duties, to assert or defend rights, or to advise the Recipient, and the advisors were given instructions to keep the information confidential vis-à-vis third parties. (4) This contractual duty of confidentiality shall also survive the termination of the present Agreement. Statutory duties of confidentiality shall remain unaffected hereby. (5) Where the Reseller provides customer data to the Manufacturer (e.g. data regarding end customers) or is required to do so under this Agreement, the Reseller shall, on its own responsibility, ensure that the Manufacturer is entitled to receive the customer data and use it in accordance with its contractual purpose. Where the authority to do so does not follow from a provision of applicable law, the Reseller shall procure the necessary consents. Sec. 9. Guidelines for the use of trademarks Each Party hereby undertakes that it shall comply with the respective other Party s guidelines on the use of its trademark rights, provided that such guidelines are appended to the Contract as a Schedule at the time of entering into it or provided the Party has communicated a website address to the respective other party from which that other Party may download the guidelines. The guidelines for use of the Manufacturer s trademark rights may be downloaded from the following address: http://www.paessler.com/partner/branding, and will also be forwarded to the Reseller by email upon request. Sec. 10. Choice of law and jurisdiction and venue (1) The Parties contract relations shall be governed by German law, but excluding application of the United Nations CISG. (2) The Parties assumption is that the provisions of Commercial Agency Law (Secs. 84 et seq of the German Commercial Code) shall not apply, either directly or on an analogous basis. Notwithstanding this, where the Reseller is not obliged to perform its activities under this Agreement within the Territory of the European Community or the other contracting states of the Treaty on the European Economic Area, the Parties derogate expressly from any direct or analogous application of the provisions in Secs. 84 to 92b of the German Commercial Code. (3) Exclusive jurisdiction and venue for all disputes arising out of or in connection with this Agreement between the Manufacturer and any Reseller who is a legal merchant, a legal entity under Public Law or special fund under Public Law shall, at the Manufacturer s option, be vested in the courts at the location of the Reseller s registered office or in the courts of the Manufacturer s registered office. In
derogation from the 1st sentence hereof, jurisdiction and venue shall be vested solely in the courts at the Manufacturer s respective registered office 1. if the Reseller is a legal merchant, legal entity under Public Law or special fund under Public Law and files suit against the Manufacturer, or 2. if the Reseller is not a legal merchant, not a legal entity under Public law or a special fund under Public Law and the Reseller likewise has no general jurisdictional venue located in the Federal Republic of Germany. The 1st and 2nd sentences hereof shall not affect any mandatory provisions of law regarding exclusive jurisdiction and venue under the German Code of Civil Procedure [German acronym: ZPO]. Sec. 11. General provisions (1) In the event that any provisions of this Agreement should be or become invalid, the validity of the remaining provisions hereof shall not be affected thereby. The invalid provision in question shall be replaced by another valid provision coming the closest to the intended purpose. The same shall apply in the event that this Agreement is determined to contain a contractual gap. (2) There are no ancillary agreements to this Agreement. No amendments or addenda shall be valid unless made in written form. The same shall apply with respect to the waiver of this written form requirement. Individual agreements departing herefrom shall take precedence. (3) The rights and obligations under this Agreement shall pass to any legal successors of the respective Parties. The Manufacturer The Reseller Signature Signature Given name + Surname, Position (In clear letters) Given name + Surname, Position (In clear letters) Place, Date + Company stamp Place, Date + Company stamp 6/8, V.2018_01
Schedule A, Territory Schedule C, Terms and Conditions <<territorry >> Schedule 1: General Terms and Conditions of Paessler AG Schedule B, Terms of payment, bank details (1) Payments must be made in the agreed currency. Where the Parties have not expressly agreed to a currency and the currency cannot be ascertained by interpretation of the Parties contract, the Manufacturer shall be entitled to choose from the currencies EUR and USD and to bindingly prescribe the applicable currency by so indicating in its invoice. Schedule 2: Special Terms and Conditions for licensing of PRTG Network Monitor Standard Software (License Terms and Conditions) Schedule 3: Special Terms and Conditions for Maintenance of Standard Software of Paessler AG Schedule D, Partnering Model Marketing by way of resale (2) Payments to the Manufacturer shall be made exclusively by bank transfer or credit card. No other means of payment (such as provision of a cheque) are permissible. 1. In respect of each individual contract entered into for the sale of a license, the Reseller shall receive a fixed discount on the then-valid list price for the respective Contract Product according to Paessler s Partner Program. (3) (2) Further agreements on determining the amount of compensation are shown in Paessler s Partner Program. The Paessler Partner Program may be downloaded from the link Special provisions on bank transfers: 1. The Manufacturer s banking details are: For payments in EURO: Bank name: Postbank Nuremberg Bank account: 833 63 854 IBAN: DE94 7601 0085 0083 3638 54 BIC/SWIFT: PBNKDEFF760 Kindly note that there is no street for the address details of our bank. The full address is as follows: https://www.paessler.com/common/files/marketingtoolbox/downloads/pdf/partnerprogram_en.pdf and may also be forwarded by the Manufacturer to the Reseller by email upon request. (3) The Manufacturer and Reseller may modify the Paessler Partner Program via the following process: BIC/SWIFT: PBNKDEFF590 1. The Manufacturer shall offer the Reseller an amendment to Paessler s Partner Program as an amendment to the Sales Agreement. The subject matter of that offer to amend Paessler s Partner Program may not be any points of the Parties Agreement which are of material consequence to the contractual equivalency between the Parties (e.g. type and scope of agreed mutual consideration and term and notice periods for termination) and the amendments must be reasonable to the Reseller. Kindly note that there is no street for the address details of our bank. The full address is as follows: 2. The offer to amend Paessler s Partner Program must, in particular, contain the following information: Postbank Saarbruecken - the amendment to the Paessler Partner Program which is being offered; Postbank Nuremberg 90329 Nuremberg For payments in US DOLLARS: Bank name: Postbank Saarbruecken Bank account: 901 990 660 IBAN: DE07 5901 0066 0901 9906 60 66104 Saarbruecken 2. Whenever it effects bank transfers, the transferor shall at least quote the order number or the invoice number. 3. Open invoices may be transferred as grouped items. Grouped items shall be broken down for the Manufacturer, indicating the Order Number. (4) Maturity The Manufacturer s claims for payment shall be due for payment promptly upon the receipt of the invoice for payment. 7/8, V.2018_01 - the dates of the amendment (i.e. the date on which the amendment is to take effect); - the Reseller s right to assert objections to the Manufacturer within a six-week period from the date it receives the offer to amend; as well as details on the written form requirements for any objection and the legal consequences of failing to object. 3. The Manufacturer shall notify the Reseller in written form of its offer to amend the Paessler Partner Program. 4. The Reseller s consent to such offer to amend the Paessler Partner Program shall be deemed granted if the
Reseller fails, within a period of six weeks from the date of the offer to amend, to forward its objection in written form to the Manufacturer. The validity of the amendment to the Paessler Partner Program shall, in addition, require as a condition precedent that the Manufacturer has separately and expressly alerted the Reseller in its notice of amendment to the legal consequences of failing to object. 5. The right of either Party to terminate the Sales Agreement shall remain unaffected hereby. 8/8, V.2018_01