This agreement (the “Agreement”) is entered into as of Month Day Year (“Effective Date”), by and between
Usercentrics A/S
(“Usercentrics”)
Havnegade 39
1058 Copenhagen
Denmark
Company reg. no. DK34624607
Contact email: [email protected]
and
Company Name: _________
(The “Reseller”)
Street Address: _________
Post code/City: _________
Country: _________
Company reg. no.: _________
VAT number (EU entities only): _________
Bank name: _________
Bank code (BIC/SWIFT/FEDWIRE etc): _________
Bank account number : _________
IBAN bank account number: _________
Telephone: _________
Contact name: _________
Contact email: _________
Whereas Usercentrics grants a non-exclusive license authorizing the Reseller to sell subscriptions to Usercentrics’ cookie compliance service (“Cookiebot”) at Cookiebot.com subject to the following terms and conditions of this Agreement:
1. Provision of License
1.1. End Users
Usercentrics grants to the Reseller the non-exclusive license to access and use Cookiebot.com for purposes of facilitating and marketing the sale and selling Cookiebot subscriptions to end users (“End Users”).
The Reseller is authorized to grant individual sublicenses to End Users of Cookiebot, and both the Reseller and the End Users must at all times access and make use of Cookiebot in conformity with the general business terms in force at any given time (the “Terms of Service”) which must be specifically agreed to when accessing Cookiebot.com. The Terms of Service will be annexed to this Agreement as Schedule 1.1.
Any license granted by Usercentrics in this Agreement is non-exclusive, and Usercentrics is under no obligation to refrain from any direct or indirect sale of Cookiebot.
1.2. Second-Line Resellers
Usercentrics hereby authorizes the Reseller to enter into contracts with other resellers (“Second-Line Resellers”) for the purposes of facilitating the sale of Cookiebot subscriptions to the End Users through the Second-Line Resellers. The Reseller is under an obligation to ensure that the terms between the Reseller and a Second-Line Reseller as well as the terms between the Second-Line Reseller and its End Users are in accordance with the terms and conditions set forth in this Agreement. The Reseller must ensure that the obligations of the End User, regardless of whether the End User is serviced by a Second-Line Reseller, is the same as the obligations of the Reseller’s direct End Users.
Upon request from Usercentrics, the Reseller must produce such agreements that have been entered into with Second-Line Resellers and their End Users.
(Second-Line Resellers and End Users are hereafter collectively referred to as “Customers”).
1.3. License Restrictions
The Reseller may not, nor may it permit or assist others to, (i) modify or fraudulently use Cookiebot to process or permit processing of the data of any third party not expressly authorized herein to access and use Cookiebot; or (ii) access, alter or destroy any information of any Customer of Cookiebot by any fraudulent means or device or attempt to do so.
1.4. Reservation of Rights
All rights not expressly granted to the Reseller herein are expressly reserved by Usercentrics.
2. Reseller Models
The Reseller will solely determine the use of reseller model and may continuously choose one or both of the following models as set out in Section 2.1 or 2.2 in relation to the End Users. The Reseller’s arrangement with the specific End User, which is managed in the Back-End, cf. Section 3.1, determines which model applies for that specific End User.
2.1. Retail Model
The retail model applies for all End Users that Usercentrics invoices directly without any involvement from the Reseller.
2.1.1. Administration Fee
The Reseller will receive an administration fee as set out below:
i) For the first three (3) years of the End User’s use of Cookiebot, the Reseller will receive an administration fee corresponding to 40% of all subscription fees paid by End Users managed, serviced or supported (“First-Line Technical Support”) by the Reseller. The three-year period begins to run from the time the End User uses Cookiebot for the first time.
ii) After the expiration of the three-year period, as described in Section 1.1(i), the Reseller will receive an administration fee corresponding to 20% of all subscription fees paid by End Users receiving First-Line Technical Support from the Reseller.
The administration fee will only be payable to the Reseller if the subscriptions have been paid by the End Users at the time of the settlement of the account as set out in Section 2.1.2.
2.1.2. Settlement of Accounts
Every three (3) months, Usercentrics will settle the Reseller’s account in regard to the End Users receiving First-Line Technical Support from the Reseller as set out in Section 2.1.1(i). The settlement will be sent by email to the Reseller.
If the Reseller’s account shows a balance of less than €200, the transfer of the balance will be postponed until the Reseller’s account shows a balance of €200 or more. The transfer will not, however, be postponed for more than one (1) year. If Usercentrics or the Reseller terminates the Agreement, the Reseller’s account will be settled immediately after the termination of the Agreement.
Any fees in relation to the bank transfer from Usercentrics’ Danish bank account to the Reseller’s bank account will be at the Reseller’s own expense.
2.2. Wholesale Model
The wholesale model applies for Customers that the Reseller invoices directly without any involvement from Usercentrics.
2.2.1. Wholesale Discount
For those Customers that the Reseller invoices directly, the Reseller will receive a discount of 20% on the Reseller’s and all the Customers’ subscriptions created under the Reseller’s account at Cookiebot.com, which will be invoiced as set out in Section 2.2.2.
2.2.2. Settlement of Accounts
Once a month Usercentrics, will invoice the Reseller for all the Reseller’s own subscriptions and Customer subscriptions created and invoiced directly under the Reseller’s account at Cookiebot.com. Subscriptions will be invoiced in arrears in accordance with the always applicable prices for Cookiebot less a total discount of 20% as described in Section 2.2.1.
Under the wholesale model, the Reseller is fully and solely liable for the Customers’ payment and must pay Usercentrics’ invoices in full regardless of whether the Reseller has received payment from its Customers. The Reseller’s payment obligation comes into force when the Customer uses Cookiebot for the first time.
Any fees in relation to the bank transfer from the Reseller’s bank account to Usercentrics’ Danish bank account will be at the Reseller’s own expense.
3. Contracting Procedures
3.1. The Back-End
The Reseller will have access to a designated reseller area (the “Back-End”) at Cookiebot.com. Usercentrics instructs the Reseller on how to register as a reseller.
The Back-End is used by the Reseller to facilitate the contact with potential new Customers and existing Customers as described in Section 3.2 and 3.3 and to manage and access all of the Reseller’s Customers’ configurations and data.
The Reseller’s access to the Customer’s configurations and data may not be used to change the Customer’s configurations and data without the Customer’s prior consent hereto.
3.2. Initiate Contact with Potential New Customers
3.2.1. Retail Model
For those new Customer subscriptions the Reseller wishes to establish under the retail model set out in Section 2.1, the Reseller is required to use the Back-End to send a subscription email that enables the Customer to sign up for Cookiebot. The subscription email contains the Reseller’s name and contact information.
The Reseller is required to ensure that each Customer has given its prior consent to receiving the subscription email before sending the email to the Customer.
When the Customer has subscribed to Cookiebot, the Reseller will be notified by email. The Reseller will be responsible for continuous service and support to its Customers.
3.2.2. Wholesale Model
For those new Customer subscriptions the Reseller wishes to establish under the wholesale model set out in Section 2.2, the Reseller is required to create and pay for its own Cookiebot subscription at Cookiebot.com, after which the Reseller will have access to the Back-End as set out in Section 3.1.
Except as stated in Section 3.4, the Reseller may determine its own contracting procedures towards its Customers, including appointment of Second-Line Resellers to perform sales on behalf of the Reseller.
3.3. Initiate Contact with Existing Customers
In order for the Reseller to be able to provide services to an existing Cookiebot Customer, either by taking over the service obligations for existing Usercentrics Customers or from other resellers, the Customer must add the Reseller’s unique reseller code to the Customer’s subscription profile in the Back-End. In order to obtain a right to the administration fee (if the retail model applies) or the wholesale discount (if the wholesale model applies), the Reseller must use the Back-End to find and send its unique reseller code to the Customer and ensure that the Customer adds this unique code to its Back-End profile.
3.4. End Users
When End Users subscribe to Cookiebot, the End Users will specifically agree to the Terms of Service provided at Cookiebot.com.
For End Users managed under the retail model, cf. Section 2.1, the Reseller will act as the single point of contact in regard to Cookiebot, but this does not, however, preclude Usercentrics from contacting the End User directly. Furthermore, the contractual relationship concerning the license for Cookiebot and the End User’s payment obligation for the use of Cookiebot and for services will be directly between Usercentrics and the End User.
For End Users managed under the wholesale model, cf. Section 2.2, the Reseller is required to grant sublicenses to End Users for Cookiebot only in conformity with the Terms of Service provided at Cookiebot.com. Those End Users will not have direct access to log in to Cookiebot, and their subscriptions can only be managed and configured by the Reseller.
4. Usercentrics’ Obligations
4.1. Technical Support
If the Reseller experiences that Cookiebot is not in conformity with all of the requirements in this Agreement, the Reseller must notify Usercentrics without delay by telephone or through Usercentrics’ help desk at Cookiebot.com. Usercentrics will use its best efforts to answer questions and correct reported errors that can be reproduced by Usercentrics (or to provide suitable temporary solutions or workarounds for errors) during the initial response. If the Reseller states that the reported error is substantial and material for the use of Cookiebot or that the reported error causes Cookiebot to be inoperable, Usercentrics will use its best efforts to correct the error within a commercially reasonable time after Usercentrics’ initial response.
The technical support services provided herein will be provided without charge.
All technical support will be provided solely to the Reseller. The Reseller must provide First-Line Technical support to End Users, cf. Section 5.2 below.
4.2. Updating Cookiebot
Usercentrics must provide to the Reseller information about all significant updates of Cookiebot’s functionality that Usercentrics generally releases to other Resellers.
4.3. Publicity
Usercentrics must not use the name of the Reseller in publicity releases, advertising or similar activity without the prior written consent of the Reseller, which must not be unreasonably withheld or delayed. Notwithstanding the aforementioned, the Reseller allows Usercentrics to include the Reseller’s name, company profile and contact information in its public reseller lists and to make a routine public announcement of the execution of this Agreement.
5. Reseller’s Obligations
5.1. Observance of National Law
When advertising Cookiebot, the Reseller is obligated to observe all relevant requirements in national law. The Reseller must expressly inform all End Users that they bear the sole responsibility for being compliant with EU and national legislation, including but not limited to legislation concerning information and consent requirements in regard to cookies. If the Reseller becomes aware of developments in this regard, including but not limited to changes in national law and/or enforcement, the Reseller must inform Usercentrics of these developments without undue delay. All actions in this regard are at the Reseller’s own cost.
5.2. First-Line Technical Support
The Reseller bears the sole responsibility for providing First-Line Technical Support to its Customers using Cookiebot. The Reseller must instruct all End Users to make all inquiries regarding support directly to the Reseller. First-Line Technical Support is at the Reseller’s own cost as it is included in the administration fee (if the retail model applies) or wholesale discount (if the wholesale model applies).
If the Reseller does not provide First-Line Technical Support in accordance with this Agreement and the Terms of Service, Usercentrics is entitled to change the End User relation to another reseller, cf. Section 3.3, if Usercentrics has notified the Reseller of the Reseller’s breach and the Reseller has not remedied this within 3 business days. Further, Usercentrics is entitled to set off any expenses in this regard in the administration fee (if the retail model applies) or claim such expenses from the Reseller (if the wholesale model applies).
5.3. Data protection
The Reseller may not use, sell, trade or otherwise transfer any Customer data to third parties.
5.4. Branding Requirements
Cookiebot will be branded with trade names, service marks, trademarks, logos and indicia of origin and other distinctive branding features (“Usercentrics Branding Features”). All non-exclusive distribution rights and licenses granted herein for Cookiebot are subject to the following branding requirements. All use of Usercentrics Branding Features must solely be for the benefit of Usercentrics. The Reseller may not (i) apply for registration of the Usercentrics Branding Features (or any marks or features confusingly similar thereto) anywhere in the world, (ii) alter, modify or change the Usercentrics Branding Features in any manner, or (iii) use any of the Usercentrics Branding Features except as expressly authorized herein or by prior written approval from Usercentrics.
5.5. Non-solicitation
The Reselling Partner and its affiliates shall not, during the term of this Agreement and for a period of 12 months thereafter, solicit, or attempt to solicit, recruit, induce, hire, assist others in recruiting or hiring, or refer to others any person who is an employee or independent contractor of Usercentrics or its affiliated companies without the prior written consent of Usercentrics or its affiliated companies in question.
6. Monitoring of Reseller’s Use
Usercentrics reserves the right to internally monitor the Reseller’s usage of Cookiebot.
7. Minimum Technical Requirements for Cookiebot
7.1. Scalability and System Requirements
Cookiebot must be scalable in a manner that allows the service to meet any forecasted increase.
Usercentrics may, at any time during the term of the Agreement, set out and amend such minimum system requirements and/or recommendations that will provide the End User with the optimal functionality of Cookiebot.
7.2. Protection of Customer Data
Cookiebot must be operated in an environment that protects the security and privacy of Customer data.
7.3. Internet Data Centers
Cookiebot will be provided through Internet Data Centers that are configured consistently with reasonable and appropriate safeguards for fireproofing, power and backup generation, structural integrity, seismic resistance and resistance to other natural and man-made disruptions. Usercentrics may outsource its Internet Data Center operations to subcontractors.
7.4. Cookiebot.com Operations
Usercentrics must undertake commercially reasonable efforts to operate and maintain its web servers that provide sufficient access to Cookiebot twenty-four (24) hours per day, seven (7) days per week, except when routine maintenance is required. Usercentrics must monitor such servers and undertake commercially reasonable efforts to restore promptly all failures of service at Usercentrics’ own expense.
8. Security
Usercentrics must implement reasonable and appropriate security procedures consistent with prevailing industry standards in order to protect the Reseller’s End Users’ customer data from unauthorized access by physical and electronic intrusion. Unless Usercentrics fails to perform the aforementioned obligations, the parties agree that Usercentrics must not, under any circumstances, be held responsible or liable for situations (i) where data or transmissions are accessed by third parties through illegal or illicit means or (ii) where the data or transmissions are accessed through the exploitation of security gaps, weaknesses or flaws unknown to Usercentrics at the time. Usercentrics will promptly report to the Reseller any unauthorized access to customer data upon discovery by Usercentrics, and Usercentrics will use diligent efforts to promptly remedy any breach of security that permitted such unauthorized access. In the event notification to persons included in such customer data is required, the Reseller bears the sole responsibility for passing on any and all such information at its own expense.
9. Intellectual Property Rights and Copyright
Usercentrics holds full copyright, title and any and all other intellectual proprietary rights to Cookiebot and nothing in this Agreement operates to assign or transfer any intellectual property rights (“IPR”) from Usercentrics to the Reseller, Second-Line Resellers or End Users.
The terms and conditions set out in clause 11 of the Terms of Service also apply in this Agreement.
10. Representations and Warranties; Indemnity
10.1. Representations and Warranties
Each of the parties represents and warrants to the other that (i) each party has full legal right, power and authority to enter into and perform this Agreement; (ii) Cookiebot, proprietary rights and any branding features of either party specified herein do not infringe or misappropriate any proprietary right of any third party or constitute defamation, invasion of privacy or violation of the privacy rights of any third party; (iii) all IPR in Cookiebot as set out in Section 9, proprietary rights and any branding features of either party specified herein are either owned by the providing party or are properly sublicensed from third parties granting such party the right to use same as contemplated hereunder; (iv) regarding the collection and use of End-User data, each of the parties represents and warrants to the other that neither party will violate any rights of any person or entity, including without limitation, rights of publicity, privacy or personality; and (v) any and all sublicenses granted by the Reseller in connection with Cookiebot must be in compliance with the Terms of Service provided at Cookiebot.com.
10.2. Indemnity
Each party must defend, indemnify and hold harmless the other, its subsidiaries, successors, assigns, executive officers and employees from, for and against any and all claims, costs, damages, losses, liabilities, actions, recoveries, judgments and expenses (including actual attorneys’ fees and expenses regardless of whether litigation was commenced) (a “Claim“) arising out of or in connection with a breach/untruth of any express representation and warranty set out in Section 10.1, provided that: (i) the indemnified party notifies the indemnifying party in writing of the Claim promptly upon the indemnified party becoming aware of such Claim; (ii) the indemnifying party must have exclusive control of the settlement or defense of any action to which the Claim relates; and (iii) the indemnified party cooperates with the indemnifying party in every reasonable way to facilitate such defense or settlement. If, after it has been given notice of such Claim, the indemnifying party does not defend any such Claim, the indemnified party may take any of the above actions and must be fully indemnified by the indemnifying party.
11. Warranty Disclaimers
Except as expressly set forth in Section 10 and to the extent allowed by law, each party on behalf of itself and its suppliers hereby disclaims all warranties, both express and implied, including the implied warranties of title, non-infringement, merchantability, fitness for a particular purpose, system integration and data accuracy. Neither party warrants or guarantees that the operation of Cookiebot or the performance of their respective online functions and web services will be uninterrupted or error-free. Neither party guarantees that data submitted or held in storage on or through its systems associated with the internet will be secure from unauthorized access. Each party acknowledges that it has not relied on any representation that is not expressly set out herein.
12. Disclaimer of Incidental and Consequential Damages
Except for indemnities and obligations regarding confidential information expressly provided herein, neither party will in any event be liable to the other under any provisions or court precedents, including contract and tort (including negligence and strict product liability) for any indirect, special, incidental or consequential damages, even if the party causing such damages has been advised of the possibility of such damages.
13. Reciprocal Disclosure of Confidential Information
The parties anticipate that each party may disclose confidential information to the other. Accordingly, in this Section, the parties desire to establish the terms governing the use and protection of certain information one party (“Owner“) may disclose to the other party (“Recipient“). For purposes hereof, “Confidential Information” means the terms and conditions in this Agreement, and other information of an Owner, including business models and plans, and technical information and data of the Owner or its Customers or suppliers. The Recipient may use Confidential Information of the Owner only for the purposes of this Agreement and must protect such Confidential Information from disclosure to others. The Recipient may only disclose the Confidential Information if reasonably required to perform the Recipient’s obligations under this Agreement. The restrictions of use and disclosure of the Confidential Information do not apply to information that (i) is in the possession or control of the Recipient at the time of its disclosure; (ii) is or becomes publicly known through no wrongful act of the Recipient; (iii) is received by the Recipient from a third party who is free to disclose the Confidential Information without any obligation towards the Owner; or (iv) is independently developed by the Recipient without reference to the Confidential Information.
14. Injunctive Relief
The parties hereby agree that any breach of any provision of this Agreement regarding confidentiality or protection of proprietary rights, hereunder Usercentrics’ IPR as set out in Section 9, would constitute irreparable harm, and that the aggrieved party will be entitled to specific performance and/or injunctive relief in addition to other remedies at law.
15. Term of Agreement
15.1. Initial Term
The initial term of this Agreement will commence as of the Effective Date hereof and continues for a period of one (1) year. The initial term hereof will automatically renew for a successive one (1) year term unless one party notifies the other in writing no less than ninety (90) days prior to the expiration of the current term of its intention not to renew. Both the initial term and any renewal term are subject to earlier termination as otherwise provided herein. The Reseller is free to set its own terms of termination in regard to End Users regardless of the terms of termination of this Agreement.
15.2. Non-Assignment
This Agreement may not be assigned by the Reseller other than as permitted in relation to Second-Line Resellers.
15.3. Automatic Termination
This Agreement will terminate immediately without notice in the case of the Reseller’s insolvency, bankruptcy or similar proceedings by or against the Reseller, any attempted assignment by the Reseller for the benefit of creditors or any appointment or application for such appointment of a receiver for Reseller unless the Reseller promptly informs Usercentrics of the contrary in writing.
15.4. Termination for Cause
If any breach is not cured within eight (8) days from receipt of a written notice describing the nature of the breach, either party may terminate this Agreement and all rights granted herein. Both parties acknowledge that any uncured failure to pay the other party timely constitutes a material breach of this Agreement.
15.5. Effect of Expiration or Termination
Upon the expiration or termination of this Agreement, the Reseller must immediately cease to sell Cookiebot. The expiration or termination of this Agreement will not terminate the rights of existing End Users and Usercentrics will assume responsibility for delivery of Cookiebot to such End Users under the Terms of Service provided on Cookiebot.com. The Reseller has no right to claim compensation for lost goodwill, lost business opportunities or similar compensation as a consequence of the termination, regardless of the reason for termination.
16. Arbitration
Except for actions to protect proprietary rights and to enforce an arbitrator’s decision hereunder, any dispute arising out of or in connection with this Agreement, including any disputes regarding the existence, validity or termination thereof, must be settled by arbitration administrated by the Danish Institute of Arbitration in accordance with the rules of simplified arbitration procedure adopted by the Danish Institute of Arbitration and in force at the time when such proceedings are commenced. The arbitration must take place in Copenhagen, Denmark, and the language to be used in the arbitral proceedings is English. The arbitrator must apply the laws of Denmark to all issues in dispute.
17. Jurisdiction and Venue
The courts of Denmark have the exclusive jurisdiction and will be the venue for all legal proceedings that are not arbitrated under this Agreement.
18. Assignment
Usercentrics is free to assign this Agreement or any right or interest under this Agreement to a third party, including but not limited to a company owned or partly owned by Usercentrics.
The Reseller must not assign this Agreement or any right or interest under this Agreement nor delegate any work or obligation to be performed under this Agreement without Usercentrics’ prior written consent. Any attempted assignment or delegation in violation of this Section will be void and ineffective. The Reseller is, however, allowed to appoint other resellers to perform sales on behalf of the Reseller.
19. Continuing Obligations
The following obligations will survive the expiration or termination of this Agreement: (i) any and all warranty disclaimers, limitations of liability and indemnities granted by either party herein; (ii) any covenant granted in this Agreement for the purpose of determining ownership of or protecting proprietary rights, hereunder Usercentrics’ IPR, including without limitation, the Confidential Information of either party or any remedy for breach thereof; and (iii) the payment of taxes, duties or any money to Usercentrics as set out in this Agreement.
20. Independent Contractors
The relationship between the parties is that of an independent contractor, and nothing herein should be construed to create a partnership, joint venture, franchise, employment or agency relationship between the parties. The Reseller has no authority to enter into agreements of any kind on behalf of Usercentrics and does not have the power or authority to bind or obligate Usercentrics in any manner to any third party.
21. Force Majeure
Neither party is liable for any damage, delay or failure of delivery arising out of causes beyond their reasonable control and without their fault or negligence, including but not limited to, Acts of God, acts of civil or military authority, fires, riots, wars, embargoes, internet disruptions, hacker attacks or communications failures.
22. Miscellaneous
This Agreement must be construed under the laws of Denmark, excluding however the general rules of Danish law on governing law. This Agreement constitutes the entire understanding of the parties with respect to the subject matter of this Agreement and replaces all prior communications, understandings and agreements. This Agreement may be modified only by a written agreement signed by the parties. The failure of either party to enforce at any time any of the provisions of this Agreement will not be a waiver of such provision or any other provision nor of the right of such party thereafter to enforce any provision in this Agreement.
[Signatures]
In witness hereof, the parties have caused this Agreement to be duly executed below.
| Usercentrics A/S: | Reseller: |
| Name: _________ | Name: _________ |
| Title: _________ | Title: _________ |
| Place: _________ | Place: _________ |
| Date: _________ | Date: _________ |
| Signature: _________ | Signature: _________ |
Schedule 1.1 – Terms of Service
Our Terms of Service can be found here
Annex 1 – Data Processing Agreement
Please find our Data Processing Agreement here
