1. NightPOS Partnership AgreementÂķ
Note
Version 11 - 2023-05-19
NIGHTPOS and PARTNER are individually referred to as a "Party" and collectively referred to as "the Parties".
1.1. 1 PurposeÂķ
The purpose of this agreement is to set forth the conditions under which NIGHTPOS provides services to PARTNER, access to the NightPOS Enterprise Edition software, and under which PARTNER complies with the obligations set out hereafter.
NIGHTPOS hereby appoints PARTNER, and PARTNER hereby accepts the appointment, to be a non-exclusive partner promoting and selling "NightPOS Enterprise Edition" to customers.
PARTNER commits to doing its best effort to sell NightPOS Enterprise contracts to its clients. To support that, PARTNER will market in priority the "NightPOS Enterprise Edition" version to prospects and customers. PARTNER still has the option to sell services on other versions of the software, like "NightPOS Community Edition", should it be needed.
1.2. 2 Term of the AgreementÂķ
The duration of this Agreement (the âTermâ) shall be one year beginning on the date of the signature. It is automatically renewed for an equal Term unless either party provides written notice of termination minimum 30 days before the end of the Term to the other party.
1.3. 3 Access to NightPOS Enterprise EditionÂķ
1.3.1. 3.1 Project platform accessÂķ
To help PARTNER promote NightPOS Enterprise Edition, NIGHTPOS grants PARTNER access to its project code repository for all "NightPOS Enterprise Edition" Apps, under the terms set forth in 10 Appendix A: NightPOS Enterprise Edition License and the conditions restricted under this Agreement.
In addition, NIGHTPOS grants PARTNER free access to the NIGHTPOS.SH platform for testing and development purposes.
1.3.2. 3.2 RestrictionsÂķ
PARTNER commits to keeping confidentiality of the source code of NightPOS Enterprise Edition Apps within its staff. Access to the source code of NightPOS Enterprise Edition for customers is governed by the NightPOS Enterprise Subscription Agreement. PARTNER agrees to NOT redistribute this code to third parties without the written permission of NIGHTPOS.
PARTNER commits to not offer services on NightPOS Enterprise Edition to customers who are not covered by an NightPOS Enterprise subscription, even during the implementation phase.
Notwithstanding the above, PARTNER commits to wholly preserve the integrity of the NightPOS Enterprise Edition code that is required to verify the validity of usage of NightPOS Enterprise Edition and to collect statistics that are needed for that purpose.
PARTNER is not allowed to block, restrict or limit in any way the customer's access and use of the NightPOS Enterprise Edition License, without prior consultation and written authorisation from NIGHTPOS.
1.4. 4 Partnership ServicesÂķ
1.4.1. 4.1 Partnership levelsÂķ
The NightPOS partner program consists of two types of partnerships and four levels; âLearning Partnersâ is for companies who want everything necessary to start implementing NightPOS, without visibility as an official partner until they get the required experience; âOfficial Partnersâ is for companies who want the visibility as Ready, Silver, and Gold, according to their experience with NightPOS.
Partnership level granted to PARTNER depends on the net new NightPOS Enterprise users sold in the last 12 months, the number of certified resources and the customer Retention Rate. The net new NightPOS Enterprise users sold includes new customers, upsells on existing customer, downsells on existing customers, and customer churn. Renewals of existing contracts do not count towards the number of Users Sold, but PARTNER still gets a commission on these contracts as stated in section 4.2 Benefits.
The table below summarizes the requirements that have to be met for each partnership level.
The customer Retention Rate is calculated by dividing the total number of NightPOS Enterprise customers acquired by PARTNER in the last 3 years that are currently active by the total number of NightPOS Enterprise customers acquired by PARTNER in the last 3 years.
Certifications are personal, so when a certified staff member leaves or joins the company, PARTNER must notify NIGHTPOS.
PARTNER's partnership level will be reviewed quarterly by NIGHTPOS, and adjusted to the highest level for which the 3 requirements are met.
However, "Official Partners" may be upgraded automatically to a higher level once they reach the 3 requirements for that higher partnership level.
1.4.2. 4.2 BenefitsÂķ
The details of the benefits for each level of the partnership are described in the table below:
- 1
up to a maximum of 150⎠(or $180) of monthly commission per subscription, or 1440⎠(or $1728) of yearly commission per subscription
1.4.3. 4.3 Partner RecognitionÂķ
NIGHTPOS will promote "Official Partners" on the NightPOS Partners list on nightpos.com.
NIGHTPOS grants PARTNER, on a non-exclusive basis, the right to use and reproduce the NIGHTPOS Partner logo of the corresponding partnership level, and the "NightPOS" name in relation to this partnership agreement.
Each Party undertakes to respect all the rights of the other Party in all the items referred to in the previous paragraph and, more particularly, each Party shall refrain from causing any analogy or creating any confusion between their respective company in the mind of the general public.
1.4.4. 4.4 Training BenefitsÂķ
PARTNER has access to the NIGHTPOS knowledge base for the duration of this Agreement. The NIGHTPOS knowledge base is an online e-platform containing a set of commercial, marketing and functional documents, to help PARTNER acquire and leverage NightPOS knowledge, grow its business, attract more customers, and build brand awareness.
PARTNER will have access to commercial coaching provided by their dedicated Account Manager, as appointed by NIGHTPOS.
PARTNER also has the option to purchase support services or training by subscribing to an NightPOS Success Pack, for an extra fee.
1.4.5. 4.5 Commissions on NightPOS Services sold by PARTNERÂķ
For NIGHTPOS services purchased by a customer through PARTNER, and as long as PARTNER maintains a contractual relationship with the corresponding customer, PARTNER shall receive a commission according to the table of section 4.2 Benefits and their Partnership level at the date of the customer invoice.
Once a month, PARTNER will receive a purchase order with the commission due for the preceding month. Based on this purchase order, PARTNER shall invoice NIGHTPOS, and will be paid within 15 days upon receipt of the invoice.
Maintenance of Covered Extra Modules
PARTNER acknowledges and agrees that when a customer decides to Work with PARTNER 2 , NIGHTPOS will delegate the Maintenance of Covered Extra Modules to PARTNER, who becomes the main point of contact of the customer.
PARTNER shall only receive the commission for the Maintenance of Covered Extra Modules as long as the customer does not notify NIGHTPOS that they want to stop Working with PARTNER.
- 2
âWorking with an NightPOS Partnerâ and âCovered Extra Modulesâ are defined in the NightPOS Enterprise Subscription Agreement between NIGHTPOS and customers.
1.5. 5 FeesÂķ
PARTNER agrees to pay the Partnership Annual Fee upon receipt of the annual invoice sent by NIGHTPOS. The fee will be specified in writing at the time of signature of this agreement.
PARTNER acknowledges that the above-mentioned Partnership fee is not refundable.
All fees and charges are exclusive of all applicable federal, provincial, state, local or other governmental taxes, fees or charges (collectively, âTaxesâ). PARTNER is responsible for paying all Taxes associated with purchases made by PARTNER under this Agreement, except when NIGHTPOS is legally obliged to pay or collect Taxes for which PARTNER is responsible.
1.6. 6 TerminationÂķ
In the event that either Party fails to fulfill any of its obligations arising herein, and if such a breach has not been remedied within 30 calendar days from the written notice of such breach, this Agreement may be terminated immediately by the non-breaching Party.
- Surviving Provisions:
The sections "3.2 Restrictionsâ, â7 Liability and Indemnitiesâ, and â9 Governing Law and Jurisdictionâ will survive any termination or expiration of this Agreement.
1.6.1. 6.1 Consequence of terminationÂķ
- On expiry or termination of this Agreement, PARTNER:
shall not use anymore the materials and the NightPOS brand name, trademarks and logos or claim the existence of any partnership or relationship with NIGHTPOS ;
shall comply with its obligations during any notice period prior to such termination ;
may not use NightPOS Enterprise anymore, for development, test or production purpose
1.7. 7 Liability and IndemnitiesÂķ
Both Parties are bound by a best endeavours obligation hereunder.
To the maximum extent permitted by law, the liability of each Party for any and all claims, losses, damages or expenses from any cause whatsoever and howsoever arising under this Agreement will be limited to the direct damages proved, but will in no event exceed for all damage-causing event or series of connected events causing damages the total amount for the fees paid by PARTNER in the course of the six (6) months immediately preceding the date of the event giving rise to such claim.
In no event will each Party be liable for any indirect or consequential damages, including but not limited third parties or customer claims, loss of revenue, profits, savings, loss of business or other financial loss, costs of standstill or delay, lost or corrupted data arising out of or in connection with the performance of its obligations under this Agreement.
PARTNER acknowledges that he has no expectations and has received no assurances that any investment made in execution of this Agreement and the NightPOS Partnership Program will be recovered or recouped or that he shall obtain any anticipated amount of profits by virtue of this Agreement.
1.8. 8 Brand ImageÂķ
The "NightPOS" mark (including the word mark and its visual representations and logos) is the exclusive property of NIGHTPOS.
NIGHTPOS authorizes PARTNER to use the "NightPOS" mark to promote its products and services, for the duration of this agreement only, as long as:
There is no possible confusion that the service is provided by PARTNER, not NIGHTPOS;
PARTNER does not use the word âNightPOSâ in their company name, product name, domain name, and does not register any trademark that includes it.
Both Parties shall refrain from harming the brand image and reputation of the other Party, in any way whatsoever, in the performance of this Agreement.
Non-compliance with the provisions of this section shall be a cause for termination of this Agreement.
1.8.1. 8.1 PublicityÂķ
PARTNER grants NIGHTPOS the non-exclusive right to use PARTNER's name or trademarks in press releases, advertisements or other public announcements.
In particular, PARTNER accepts to be mentioned in the official list of NightPOS Partners on nightpos.com, and that PARTNER's logo and trademarks may be used for this purpose only.
1.8.2. 8.2 No Soliciting or HiringÂķ
Except where the other Party gives its consent in writing, each Party, its affiliates and representatives agree not to solicit or offer employment to any employee of the other Party who is involved in performing or using the Services under this Agreement, for the duration of the Agreement and for a period of 12 months from the date of termination or expiration of this Agreement. In case of any breach of the conditions of this section that leads to the termination of said employee toward that end, the breaching Party agrees to pay the other Party an amount of EUR (âŽ) 30 000.00 (thirty thousand euros).
1.8.3. 8.3 Independent ContractorsÂķ
The Parties are independent contractors, and this Agreement shall not be construed as constituting either Party as a partner, joint venture or fiduciary of the other, as creating any other form of a legal association that would impose liability on one Party for the act or failure to act of the other or as providing either Party with the right, power or authority (express or implied) to create any duty or obligation of the other.
1.9. 9 Governing Law and JurisdictionÂķ
This Agreement will be governed by and construed in accordance with the laws of Belgium. All disputes arising in connection with the Agreement for which no amicable settlement can be found shall be finally settled by the Courts of Belgium in Nivelles.
Signatures