This Agreement is entered into by and between SonarSource and the applicable SVAR to govern SVAR’s appointment as a strategic value-added reseller in the Territory.
1. Definitions
1.1 “Agreement” means this SonarSource Strategic Value-Added Reseller Agreement
1.2 “Anti-Corruption Laws” means all anti-bribery and anti-corruption laws and regulations binding on a Party’s business in connection with the performance of its obligations or exercise of its rights under this Agreement, including the United States Foreign Corrupt Practices Act, U.K. Bribery Act 2010 and the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions
1.3 “Customer” means any customer in the Territory who is the recipient of Sonar Products.
1.4 “Fulfilment Margin” means the “Margin on Fulfilment on Renewals”, as specified in the Term Sheet, based on SonarSource’s published list price for all commercial SONAR Product renewals approved by SonarSource for which the Customer pays SVAR directly for such renewal.
1.5 “Lead” means a sales lead regarding the identification of a person or entity in the Territory that has the interest and authority to purchase Sonar Products pursuant to this Agreement and could become a Customer in the Territory.
1.6 “Margins” means, collectively, the Fulfilment Margin, New Business Margin, and Renewal Margin.
1.7 “New Business Margin” means the “Margin on New and Expand Opportunities”, as specified in the Term Sheet, whenever SVAR generates the new sale or upgrade, in either case of any commercial Sonar Products to a Customer in the Territory that was registered by SVAR and approved by SonarSource.
1.8 “Party” means SonarSource or SVAR individually, and “Parties” means SonarSource and SVAR together.
1.9 “Renewal Margin” means the “Margin on Renewal Opportunities”, as specified in the Term Sheet, based on SonarSource’s published list price for all commercial SONAR Product renewals on sales generated by SVAR for Customers that were registered by SVAR in writing during its monthly reports within the last sixty (60) days prior to that renewal and approved by SonarSource.
1.10 “Sonar Products” means the SonarSource products identified on the Term Sheet.
1.11 “SonarSource” means SonarSource SA, a Swiss company registered in Switzerland under UID No. CHE-114.587.664 with a mailing address of P.O. Box 765, CH-1215, Geneva 15, Switzerland.
1.12 “SVAR” means an entity that has executed a Term Sheet that appoints them as a strategic value-added reseller on behalf of SonarSource on a non-exclusive basis.
1.13 “Terms and Conditions” means the relevant standard terms and conditions for a Sonar Product as posted on SonarSource’s website.
1.14 “Term Sheet” means a copy of SonarSource’s SVAR Business Term Sheet that has been signed by the Parties.
1.15 “Territory” means the territory listed as “Country Coverage” in the Term Sheet. The scope of the Territory may be reduced by SonarSource if SVAR fails to generate any sales or Leads in the Territory for a period of six (6) months.
2. Trademark
Subject to the terms and conditions of this Agreement, SVAR may use and display SonarSource’s trademarks (e.g., SONARQUBE™, SONARCLOUD™, and SONAR™) for the sole purpose of promoting Sonar Products within the Territory. SVAR will adhere to third-party trademark use guidelines specified by SonarSource and will not register or seek to register any trademarks including the term “Sonar” or any other terms confusingly similar to SonarSource’s trademarks.
3. Scope of Relationship
SVAR will represent SonarSource and the Sonar Products in a positive and professional manner at all times. SVAR represents and warrants that (a) it has the legal power and authority to enter into and perform its obligations under this Agreement, (b) its execution and performance of this Agreement will not violate any other agreement to which it is a party, and (c) it will comply with all laws applicable to its business in connection with its performance under this Agreement, including applicable data protection laws, import and export compliance laws and regulations and Anti-Corruption Laws, and will not give, offer or promise any item of value to any official, person or entity in violation of Anti-Corruption Laws. SVAR shall not be entitled to act on behalf of or in the name of SonarSource, or to bind or commit SonarSource in any way. This Agreement does not create any joint venture or legal partnership relationship as between the Parties, and each Party shall be solely responsible for its own behavior and the manner in which it executes any of its obligations pursuant to this Agreement. SVAR will be solely responsible for any and all consultancy services or support provided by it to any Customers, and it shall fully indemnify, release, and hold harmless SonarSource from any claims brought by Customers or third parties that may relate to any services, support, or products (other than Sonar Products) provided by SVAR.
4. Consulting Services
SVAR may provide its own consulting services and first-level, language-specific support (e.g., the first touch with Customers, configuration help) to Customers in connection with Sonar Products. SonarSource will not be entitled to compensation or commissions on such services or support. SVAR will seek to have Customers and Leads purchase a license to all relevant Sonar Products whenever possible and as may be appropriate for each Customer’s and Lead’s needs.
5. Referral Program
5.1 SVAR shall be entitled to receive the Margins as set forth in the Term Sheet. For the New Business Margin, when SVAR invoices Customer and receives payment directly, SVAR will issue a purchase order to SonarSource for SonarSource’s published list price for the purchased product minus the New Business Margin on the invoice, together with a copy of its original invoice to the Customer in question, and SVAR shall be entitled to keep the remaining balance (i.e., the New Business Margin) for itself. For upgrades, the New Business Margin only applies to the upgraded amount.
5.2 All sales of Sonar Products, whether sold directly by SonarSource or through SVAR, will be subject to SonarSource’s relevant Terms and Conditions. SVAR may agree to additional terms and conditions with the Customer, provided that they are not binding on SonarSource. SVAR shall inform the Customer accordingly on any invoices it issues to its Customers.
6. Payments
All payments shall be made promptly by electronic funds transfer according to the payment terms defined in the invoice. Failure to pay any invoice in a timely manner shall be deemed to be a material breach of this Agreement. Extensions of time for payments may exceptionally be granted by SonarSource on a case-by-case basis, but only if SonarSource agrees to such an extension of time in advance in writing before an extension is offered to the Customer.
7. Good Faith, No Competition, & Non-Solicitation
7.1 The Parties will act in good faith to coordinate their activities and share appropriate and relevant information in order to reach their mutual objectives as set forth in the Term Sheet. SVAR shall cooperate and coordinate its activities in the Territory in good faith at all times with any other strategic value-added resellers of SonarSource in the Territory.
7.2 SVAR will obtain Sonar’s prior written consent, not to be unreasonably withheld, prior to promoting any competing products or services in the Territory. For purposes of this provision, “competing products or services” means any provider of static code analysis software tools (i.e., SAST).
7.3 For the duration of this Agreement and for an additional six (6) months following the termination or expiration of this Agreement, neither Party will solicit the employees, consultants, Leads or Customers of the other Party in the Territory with a view to leaving that Party.
8. Confidentiality
8.1 During the term of the Agreement and for a period of three (3) years following its termination, the Parties shall continue to treat as confidential any information that was designated as confidential or proprietary by the disclosing Party through an appropriate stamp, legend or any other notice in writing, or when disclosed orally, was identified as confidential or proprietary at the time of disclosure and was promptly confirmed thereafter and designated in writing, within thirty (30) days, as being confidential or proprietary information of the disclosing Party. SVAR shall treat all information regarding any Leads, Customers or sales that was generated during the lifetime of this Agreement and that was exchanged pursuant to this Agreement as confidential information belonging to SonarSource even if not expressly designated or labeled as confidential or proprietary by SonarSource. Each Party may be given access to the names and contact information regarding a Party’s personnel, officers, and director, suppliers and customers (“Business Contact Information”). Each party shall be considered a data controller with respect to the other party’s Business Contact Information and shall be entitled to transfer such information to any country where such Party, its affiliates operate.
8.2 Accordingly, each Party undertakes that:
i) The receiving Party shall not use any such confidential information for any purpose other than for the purpose of fulfilling its obligations under this Agreement;
ii) The receiving Party shall not disclose any confidential information to any third party except with the disclosing Party’s prior written consent, and shall treat the other Party’s confidential information with the same duty of care as it provides to its own confidential information of a similar nature (and in any event, no less than a reasonable duty of care); and
iii) Such confidential information shall neither be copied, nor otherwise reproduced nor duplicated in whole or in part where such copying, reproduction or duplication has not been specifically authorized in writing by the disclosing Party.
8.3 No obligation of confidentiality shall apply to any information that:
i) Was already in the public domain or has come into the public domain after the disclosure thereof, and in such case the subsequent disclosure was through no wrongful act of the receiving Party;
ii) Was already known to the receiving Party or independently derived by it, as evidenced by written documentation in the files of the receiving Party;
iii) Was lawfully received from a third party without restrictions or any breach of this Agreement;
iv) Was independently developed in good faith by employees or consultants of the receiving Party who did not have access to the confidential information; or
8.4 The Parties shall only provide access to confidential information to their employees or consultants on a “need-to know” basis and shall ensure that such employees and consultants shall be aware of the confidentiality provisions of this Agreement and have agreed to comply with its terms.
9. Duration & Termination
9.1 This Agreement shall be in effect for as long as there is an active Term Sheet.
9.2 SonarSource may terminate this Agreement at any time with ninety (90) days’ prior notice and revoke SVAR’s status as a strategic value-added reseller should SonarSource believe that SVAR is not meeting SonarSource’s business objectives in the Territory.
9.3 Either Party may immediately terminate this Agreement without prior written notice if the other Party commits a material breach that has been brought to its attention and has not been remedied within thirty (30) days of that material breach having first been brought to its attention.
9.4 Upon termination or expiration of this Agreement, the Parties will return or destroy all copies of software and documentation supplied to them by the other Party pursuant to Agreement. SonarSource shall not be required to refund any payments already received by it.
9.5 The provisions of this Section 9 as well as of Sections 2 (Scope of Relationship), 8 (Confidentiality), 10 (Governing Law and Jurisdiction), and 12 (General) shall survive termination of this Agreement for any reason.
10. Governing Law and Jurisdiction
This Agreement is governed by and construed in accordance with Swiss law. Any dispute, controversy, or claim arising under, out of, or relating to this Agreement shall be submitted to arbitration in accordance with the WIPO Expedited Arbitration Rules in effect at that date. The arbitral tribunal shall be in Geneva, Switzerland. The language to be used in any such proceedings shall be English. Notwithstanding the foregoing, any claim seeking solely preliminary, injunctive, or declaratory relief may be brought in a court of competent jurisdiction.
11. Export Restrictions
SVAR agrees to comply with all relevant export and import laws reselling the Sonar Products. Without limiting the foregoing, (a) SVAR represents and warrants that it is not, and that it will not market or resell the Sonar Products to any party that is, listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country and (b) SVAR will not (and will not permit any of its users to) access or use the Sonar Products in violation of any U.S. export embargo, prohibition or restriction or with any information controlled under the U.S. International Traffic in Arms Regulations.
12. General
12.1 Save as provided in Section 2 above regarding the permission to use SonarSource’s trademarks, nothing in this Agreement is to be construed as granting SVAR any rights or licenses to use any of SonarSource’s intellectual property rights. SVAR shall respect and act in accordance with SonarSource’s intellectual property rights and instructions at all times, and SVAR shall not seek to register in its own name or in the name of any third party any intellectual property rights of SonarSource, or any software registration licenses or permits or domain names containing any SonarSource brands, and SonarSource shall be entitled to obtain injunctive relief and specific performance of this provision, (including the transfer of title to SonarSource of any applications or registrations made by SVAR in breach of this provision).
12.2 Neither Party will be liable for any delay or failure to perform obligations under this Agreement due to any cause beyond its reasonable control, including labor disputes; industrial disturbances; systematic electrical, telecommunications, or other utility failures; earthquakes, storms, or other elements of nature; blockages; embargoes; riots; acts or orders of government; acts of terrorism; and war.
12.3 If any provision of this Agreement is held to be unenforceable, illegal, or void, that shall not affect the enforceability of the remaining provisions. The Parties further agree that the unenforceable provision(s) shall be deemed replaced by a provision(s) that is binding and enforceable and that differs as little as possible from the unenforceable provision(s), with considerations of the object and purpose of this Agreement.
12.4 Any notices to be provided under this Agreement should be sent by international courier service to the registered address of the Party, or to such other address as that Party may request in writing that notices be sent to. Notices may also be sent by e-mail if proof of receipt is obtained. E-mail notices to SonarSource must be sent to contact@sonarsource.com.
12.5 This Agreement supersedes and replaces any and all previous agreements between the Parties. SonarSource reserves the right to amend this Agreement at any time. SonarSource will notify SVAR of material changes to this Agreement at least 30 days prior to the change taking effect by posting a notice on the Website or sending an email to SVAR’s primary email address.