PARTNERSHIP AGREEMENT
THE UNDERSIGNED:
Amsterdam Internet Exchange B.V., a company duly incorporated under the laws of The Netherlands, having its registered office at Westeinde 12 (1017 ZN) Amsterdam, The Netherlands (hereinafter referred to as: "AMS-IX"), duly represented by its Managing Director, Job Witteman;
and
/…/, a company duly incorporated under the laws of /…/, having its registered office at /…/ (hereinafter referred to as “PARTNER”), duly represented by its /…/, /…/;
AMS-IX and Partner shall individually also be referred to as “Party”, or collectively as “Parties”.
WHEREAS:
A. AMS-IX is a company that facilitates the exchange of Internet transactions and everything that contributes hereto in the broadest sense of the word;
B. PARTNER is a company that /…/;
C. The Parties have agreed that PARTNER is to be appointed under the terms of this agreement as a reseller of the connection through the AMS-IX infrastructure;
D. Parties wish to establish a relationship, labelled as a partnership, with this agreement in which Parties agree to co-operate in order to strengthen their mutual position in the global market for IX services and related business.
THEREFORE PARTIES HAVE AGREED AS FOLLOWS:
Article 1 Definitions
In this agreement, except where the context requires otherwise, the following words and expressions shall have the following meaning:
“AMS-IX”: any party either Amsterdam Internet Exchange B.V. itself or a third party appointed by Amsterdam Internet Exchange B.V. to act on its behalf, which performs and/or co-ordinates all services, administration or other activities pertaining to the operation of the AMS-IX infrastructure.
“Agreement”: this agreement including all its appendices.
“Association”: The Vereniging Amsterdam Internet Exchange, an association according to Dutch law of which all organisations who want to enter into a Connection Agreement must have membership. The Association is 100% owner of Amsterdam Internet Exchange B.V.
“Bonus Fee”: the bonus that will under certain circumstances be paid by AMS-IX to PARTNER as set forth in Appendix III.
“IX Services”: Facilitating IP connectivity through physical connection of a Customer router on a shared layer 2 medium, the AMS-IX infrastructure, for the purpose of exchanging IP traffic with other Customer routers over this medium.
“Other Services”: additional services offered by PARTNER such as co-location services, transit services, consulting, project management, implementation, network management or other related services.
“Connection Agreement”: the agreement between AMS-IX and Customer relating to a connection to the Amsterdam Internet Exchange, attached as Appendix IV.
“Customer”: any third party that receives IX Services via PARTNER from AMS-IX and is accepted as a member of the Association and has signed a Connection Agreement.
“Marketing Effort”: any activity by a Party which is directed at eventually selling IX Services under this Agreement.
“Support Services”: all services provided towards Customer by PARTNER or AMS-IX for the benefit of continued undisturbed use of the IX Service, as described in Appendix I.
“Billing Services”: all activities towards Customer by PARTNER regarding invoicing of the IX Services and collection of outstanding Customer invoices.
“Trademark”: the trademarks owned by AMS-IX or its licensors described in Appendix V.
Article 2 Scope
2.1 AMS-IX hereby grants PARTNER, as PARTNER accepts from AMS-IX, a non-exclusive, non-transferable right to resell the IX Services to Customers, which right is always subject to the condition that (i) PARTNER has fulfilled all its (payment) obligations under this Agreement and that (ii) Customer User has entered into a Connection Agreement, prior to the use of the IX Services.
2.2 AMS-IX hereby grants PARTNER, as PARTNER accepts from AMS-IX, a non-exclusive, non-transferable right to use the Trademarks and other symbols exclusively to execute this Agreement and to promote the IX Services conform guidelines as supplied by AMS-IX in Appendix V.
2.3 The license as described in article 2.2 also applies to future trademarks to which AMS-IX is entitled, from the date that AMS-IX has informed PARTNER by registered mail that the license encompasses a certain trademark.
2.4 Except for rights explicitly granted in this Agreement, nothing in this Agreement will grant or will be deemed to grant to PARTNER any right, title or interest in or to the Trademark or any other symbol. PARTNER will respect the rules of public order and decency. PARTNER shall not challenge or assist others to challenge the Trademark or the registration thereof or attempt to register any trademarks or other designations identical or confusingly similar to those of AMS-IX.
2.5 PARTNER shall immediately inform AMS-IX of any infringement by third parties involving intellectual property rights relating to the Trademark or any other symbol of which it has knowledge, and Parties shall consult together to determine the course of action, if any, to be taken in such circumstances. PARTNER shall render to AMS-IX any assistance requested by AMS-IX in proceedings against an infringer.
2.6 PARTNER may use other marketing material offered via the AMS-IX Partner Program conform guidelines as supplied by AMS-IX, such as sales presentations, brochure texts, press releases etc.
Article 3 Acceptance of orders
3.1 AMS-IX shall inform PARTNER within a reasonable period of its acceptance or rejection of the orders transmitted by the latter. Membership of the Customer of the Association as referred to in article 1 f. of the Connection Agreement is deemed to be such an acceptance.
Artice 4 AMS-IX' obligations
4.1 AMS-IX agrees to actively name PARTNER as partner including naming the categories of the Other Services offered by PARTNER, and forwarding potential leads, notwithstanding the fact that the foregoing will not create or imply any exclusivity in this respect.
4.2 Without prejudice to article 3.1, AMS-IX will instruct PARTNER such that PARTNER will be able to sell IX Services independently:
a) upon entering this Agreement and periodically AMS-IX will provide PARTNER, if so desired, at no charge, with sales training regarding IX services;
b) AMS-IX will provide access to the AMS-IX partner program portal (www.ams-ix.net/app) were all necessary documentation and interfaces with AMS-IX exist to carry out the execution of this Agreement.
4.3 AMS-IX will provide second line Support Services for IX Services during AMS-IX normal business hours (9:00 to 17.00 CET Monday through Friday excluding Public Holidays) to PARTNER or Customer after careful screening of the issue by PARTNER as meant in Appendix I. Outside those hours only emergency Support Services are offered by AMS-IX.
4.4 AMS-IX will keep PARTNER updated on maintenance and network issues via the regular channels for purpose of Customer Support Services. AMS-IX shall provide PARTNER with all necessary written information needed by PARTNER for carrying out its obligations under the Agreement.
4.5 If AMS-IX expects that its capacity of supply will be significantly lower than that which PARTNER could normally expect, AMS-IX will inform PARTNER within a reasonable time.
4.6 AMS-IX may, at its sole discretion, on request of PARTNER support Marketing Efforts to stimulate the sales of IX Services. However, this will not represent a financial sponsoring but could be the supply of material or the presence of AMS-IX representatives at functions of PARTNER.
Article 5 PARTNER'S obligations
5.1 PARTNER agrees to use his best endeavours to promote the sale of the IX Services in accordance with AMS-IX' reasonable instructions and shall protect AMS-IX' interests with the diligence of a responsible businessman.
5.2 PARTNER agrees to actively include, specify and recommend IX Services and AMS-IX, where business and membership conditions indicate that a favourable response will be forthcoming and where technically feasible, in its Marketing Efforts to its customers. When negotiating with customers, PARTNER shall offer the IX Services strictly in accordance with the terms, conditions and prices of the Connection Agreement of sale that AMS-IX has communicated to PARTNER.
5.3 PARTNER will provide Customer with first line Support Services during PARTNER's normal business hours as meant in Appendix I. Outside those hours only emergency Support Services are required by PARTNER. However, PARTNER shall have no obligation to provide Support Services for connections of Customer, the use of which is being affected by problems caused by wilful abuse or misapplication by Customer. In such cases an automatic shut-down procedure will apply of which PARTNER and Customer are notified.
5.4 PARTNER shall exercise due diligence to keep AMS-IX informed about its activities, market conditions and the state of competition. PARTNER shall answer any reasonable request for information made by AMS-IX.
5.5 PARTNER shall satisfy itself, with due diligence, of the solvency of potential customers whose orders he transmits to AMS-IX. PARTNER shall not transmit orders from potential customers concerning which it knows or ought to know that they are in critical financial position, without informing AMS-IX in advance of such fact.
5.6 PARTNER shall immediately inform AMS-IX of any observations or complaints received from Customers in respect of the IX Services. The Parties hereto shall deal promptly and properly with such complaints.
5.7 PARTNER herewith accepts the responsibility for carrying out the articles 4.3, 5 and 7.4 of the Connection Agreement, which responsibility will be set forth in a separate side letter per Connection Agreement with a Customer.
Article 6 Price and payment
6.1 AMS-IX will invoice PARTNER collectively for all IX Services sold via this Agreement. These costs are specified in the Appendix II of the Connection Agreement (“Connection Costs”) of the Customers. The Connection Costs shall be due from the date of reservation.
6.2 AMS-IX will invoice PARTNER periodically in Euros according to the rates as set by the Association.
6.3 The Association shall annually re-assess the Connection Costs and shall be entitled to change the Connection Costs due for any following year. AMS-IX has the right to change the Connection Costs to be paid in accordance with the decision of the annual members meeting of the Association.
6.4 Payment by PARTNER must be made within one (1) month of receipt of the invoice or as such later date as agreed in writing.
6.5 In the event that PARTNER fails to pay the amounts due within the agreed period, legal interest shall be due by PARTNER on the outstanding amount without any notice of default being required. Should PARTNER, after notice of default, fail to settle the claim, the same may be placed out of hand, in which case PARTNER shall be liable to pay in full, in addition to the total amount then due, reasonable legal expenses relating to the collection of this claim or other enforcement of rights, the amount of which is determined in conformity with the guidelines for the Dutch Bar Association.
6.6 In the event that PARTNER, after notice of default, fails to pay the amounts due, AMS-IX has the right to (i) inform Customers introduced and/or recommended by PARTNER about this default of payment and to (ii) inform these Customers about the possibility to enter into a Connection Agreement with another partner or directly with AMS-IX.
6.7 PARTNER will invoice the Customers for all costs arising out of the Connection Agreement, and is solely responsible for collection of the amounts due.
6.8 In case of non-payment by Customer to PARTNER, PARTNER is entitled to ultimately require a shut down procedure as referred to in Appendix II.
Article 7 Bonus Fee
7.1 In recognition of the efforts of PARTNER in introducing and/or recommending the IX Services to Customers that purchase the IX Services via a Connection Agreement as a result of PARTNER's efforts in this respect, without further efforts from AMS-IX, AMS-IX will award PARTNER a Bonus Fee. PARTNER shall acquire the right to a Bonus Fee after full payment of the amounts mentioned in article 6.1.
7.2 AMS-IX will pay the Bonus Fee linked to the individual orders after the first month of operation via a credit invoice to PARTNER in line with the billing period. This credit invoice will be accompanied by a specification and calculation of the Bonus Fee.
7.3 No Bonus Fee shall be due in respect of offers or orders transmitted by PARTNER and not accepted by AMS-IX.
7.4 The right on reward in the sense of article 7:435 of the Dutch Civil Code (“Burgerlijk Wetboek”) is explicitly excluded.
Article 8 Term, termination and the consequences thereof
8.1 This Agreement shall come into force on the date of its signing by both Parties and shall remain in force until its termination in accordance with this article 8.
8.2 This Agreement is entered into for an initial term of two (2) years. Upon expiry of the initial term, this Agreement will automatically be continued indefinitely, unless either Party gives written notice of termination to the other Party, at least sixty (60) days before the expiry of the initial term.
8.3 This Agreement can be terminated with immediate effect in case:
a) of default in the performance of any provision of this Agreement, after the non-defaulting Party has issued a written notice to the defaulting Party and the default is not cured, or the defaulting Party does not submit a plan for cure acceptable to the non-defaulting Party, within a reasonable period;
b) PARTNER changes ownership or a substantial amount of its share capital is acquired by a competitor of AMS-IX, as reasonably determined by AMS-IX;
c) PARTNER sells all or a substantial part of its assets, participates in a merger, or other reorganisation in which it is not the surviving entity; or
d) PARTNER ceases to do business (“ontbonden”), becomes unable to pay its debts when they fall due, becomes or is deemed insolvent (“surceance van betaling”), has a receiver, manager, administrator, administrative receiver or similar officer appointed in respect of the while or any part of its assets or business, makes any composition or arrangement with its creditors, takes or suffers any similar action in consequence of debt or an order or resolution is made for its dissolution or liquidation (other than for the purpose of solvent amalgamation or reconstruction), enters into liquidation whether compulsory or voluntary.
8.4 Upon expiry of this Agreement, cancellation or termination for any reason:
a) all rights granted to PARTNER under this Agreement shall cease;
b) PARTNER shall cease all activities authorised by this Agreement;
c) Parties shall immediately pay to each other any sums due to the other Party under this Agreement.
8.5 Upon expiry, cancellation or termination of this Agreement PARTNER shall return to AMS-IX all advertising material and other documents and samples which have been supplied by AMS-IX and are in PARTNER'S possession.
8.6 On expiry, termination or cancellation of this Agreement, AMS-IX can in mutual agreement with Customer take over the Support Services and Billing Services PARTNER offered to Customer in relation to the IX Services.
Article 9 Indemnity in case of termination
9.1 PARTNER shall be entitled to an indemnity (“goodwill indemnity”) if and to the extent that:
a) it has brought AMS-IX new Customers or has significantly increased the volume of business with existing Customers and AMS-IX continues to derive substantial benefits from the business with such Customers; and
b) the payment of this indemnity is equitable having regard to all the circumstances and, in particular, the commission lost by PARTNER on the business transacted with such Customers.
9.2 The amount of the indemnity shall not exceed a figure equivalent to an indemnity for one (1) year calculated from PARTNER'S average annual remuneration over the preceding five (5) years and, if the Agreement lasted for less than five (5) years, the indemnity shall be calculated on the average for the period in question.
9.3 PARTNER will lose the right to indemnity if it does not claim the indemnity within one (1) year from Agreement termination.
9.4 PARTNER shall have no right to indemnity in the following cases:
a) where AMS-IX has terminated the Agreement according to the conditions set out in article 8.3;
b) where PARTNER has terminated the Agreement, unless the termination is justified under article 8.3 sub a) or on grounds of age, infirmity or illness in consequence of which PARTNER cannot reasonably be required to continue its activities;
c) where PARTNER assigns its rights and duties under the Agreement to another person or entity.
Article 10 Confidentiality
10.1 During the course of the Agreement, each Party may be given access to information (verbally or in writing, in hardcopy and/or electronic form) that relates to the other's past, present and future business activities, research, development, products, services, and technical knowledge, and is identified by the discloser as confidential (“Confidential Information").
10.2 Parties agree:
a) to hold the Confidential Information in strict confidence;
b) not to disclose the Confidential Information to any third party, except as specifically authorized herein or as specifically authorized by the disclosing Party in writing;
c) to use all reasonable precautions, consistent with the receiving Party's treatment of its own confidential information of a similar nature, to prevent the unauthorized disclosure of the disclosing Party's Confidential Information;
d) not to use any Confidential Information for any other purpose than in connection with the Agreement; and
e) not to use the Confidential Information for other personal gain.
10.3 Confidential Information may not be disclosed to any other person without explicit written approval of the disclosing Party, except to the extent that the same:
a) can be shown by written evidence to have been known by the receiving Party prior to its receipt from the disclosing Party;
b) is or becomes generally known to the public domain, through no fault of the receiving Party;
c) is disclosed to the receiving Party by a third party not under any obligation to secrecy to the disclosing Party concerning the same and having a bona fide right to do so; or
d) is developed by the receiving Party independently of any information received from the disclosing Party.
10.4 All Confidential Information made available hereunder, including copies thereof, shall be returned or destroyed upon the first to occur of (a) the cancellation of the Agreement or, (b) on the request of the Party that disclosed the confidential information to the other Party, unless the receiving Party is otherwise lawfully allowed to retain such Confidential Information.
Article 11 Liability
11.1 None of the Parties will be liable towards any other Party for compensation of indirect or consequential damage, including lost profits and damage consisting of or resulting from loss of data or information.
11.2 Any liability of either Party towards the other Party for compensation of direct loss resulting from performance or non-performance of this Agreement is at all times limited to the total amount of fees paid by either party to the other party under this Agreement over the twelve (12) months, preceding the event that caused such damages.
11.3 In no event shall Party's total liability for any loss by death or bodily injury of for any material damage to property exceed € 2,500,000 (two and a half million Euros) per event.
11.4 The maximum amounts specified in articles 11.2 and 11.3 shall cease to apply if and insofar as the loss is due to AMS-IX' or PARTNER's wilful intent or gross negligence.
11.5 Party's liability for indirect loss, including consequential loss, loss of profits, lost savings and loss caused by interruption of operations is excluded.
11.6 In the meaning of this article 11 a series of connected events is being considered a single event.
Article 12 Relationship of Parties
12.1 PARTIES are and will remain independent contractors towards third parties and this Agreement shall not create any employment, franchise, joint venture or other similar legal relationship between Parties. Neither Party will obtain any right or authority to act on behalf of the other as a result of executing this Agreement other than expressly granted hereunder and neither Party shall represent that it has such right or authority, unless such right has expressly been granted to it under this Agreement or otherwise.
12.2 The existence of this Agreement shall not oblige any Party to any investment, expenditure or allocation of labor or capital in any form, other than expressly provided for in this Agreement.
12.3 The relationship of Parties is non-exclusive and shall not prohibit the Parties to enter into similar relationship with third parties, regardless of their position towards the other Party to this Agreement.
Article 13 General
13.1 Parties shall be at liberty to issue a press release of other public announcement concerning the entering into of this Agreement, but shall take account of any reasonable requirements of the other Party as to the content, timing and manner thereof.
13.2 This Agreement contains all the terms which the Parties have agreed in relation to the subject matter of this Agreement and supersedes any prior written or oral agreements, representations or understandings between the Parties relating to such subject matter.
13.3 The nullity of a particular clause of this Agreement shall not entail the nullity of the whole Agreement, unless such clause is to be considered as substantial, i.e. if the clause is such importance that the Parties (or the Party to the benefit of which such clause is made) would not have entered into the Agreement if it had known that the clause would not be valid.
13.4 No addition or modification to this Agreement shall be valid unless made in writing.
13.5 This Agreement cannot be assigned without prior written agreement between the Parties.
13.6 This Agreement shall exclusively be governed by Dutch law.
13.7 Any dispute concerning the conclusion, interpretation or performance of this Agreement, and any other dispute with respect to or relating to the Agreement, shall be submitted exclusively to the competent courts in Amsterdam, the Netherlands.
IN WITNESS of which the parties have caused this Agreement to be executed by their duly authorised representatives at ………………..(place) , ………………… (date).
________________________ ________________________
Name: Mr. J.P. Witteman Name: [ ______________ ]
Title: Managing Director Title: [ ______________ ]
List of Appendices:
Appendix I: Support Services provided towards Customer by PARTNER or AMS-IX
Appendix II: Disabling & forced termination for Partner Program
Appendix III: Bonus Scheme AMS-IX Partner Program
Appendix IV: Connection Agreement
Appendix V : Trademarks.
APP PA2004 v1.1 [Partner name] 11 of 11