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This Appendix C including any sub-appendices hereof shall constitute an integrated part of the Agreement between Partner and Membrain. |
Last Updated: Feb 26, 2025
Definitions of terms may be included in the Partner Agreement document or in these General Terms and Conditions.
1.1 “Confidential Information” means (a) the Products and any trade secrets related to the foregoing and (b) all other information disclosed by Membrain to Partner orally, electronically, visually, or in a document or other tangible form or medium, which is either identified as or should be reasonably understood to be confidential and/or proprietary.
1.2 “End Customer Subscription” means one or more subscriptions of Product(s) sold to an End Customer based upon the Price List and SaaS Agreement.
1.3 Feedback” means any and all information (in oral, written, electronic or any other form) communicated voluntarily by Partner, directly or indirectly, to Membrain, under the Partner Agreement or otherwise pertaining to Products, services, or Confidential Information, including, without limitation, performance data, error data, reports, comments, requests, and suggestions with respect to improvements to Products or services and/or new products or services.
1.4 “Intellectual Property or “IPR” means any and all now or hereafter known tangible and intangible: (a) right associated with works of authorship throughout the world, including but not limited to, copyrights, moral rights, and mask works; (b) trademarks and trade name rights and similar rights, throughout the world; (c) trade secret and know-how rights throughout the world; (d) patents, designs, algorithms, and other intellectual and/or industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license or otherwise; (e) all registrations, initial applications, renewals, extension, continuations, divisions or re-issues thereof now or hereafter in force; and (f) Derivatives. To clarify, “Derivatives” means (a) for copyrighted or copyrightable material, any abridgment, revision, translation, enhancement, improvement, modification, expansion, compilation or other form in which an existing work may be recast, transformed or adapted, (b) for patented or patentable material, any improvement thereof, or (c) for trade secrets, any new material derived from such existing trade secret material, including new material which may be protected by copyright, patent or trade secret.
2.1 During the term of this Agreement, Membrain grants to Partner the rights set forth in Section 3.1 of the Partner Agreement document. To clarify, any deals with End Customer(s) regarding Product subscription purchases and/or services related thereto shall be solely negotiated and entered into by and between Membrain and the respective End Customer. Partner shall at no time communicate any promises, warranties, and/or representations with respect to Products which are not expressly set forth in the SaaS Agreement. Partner may not itself negotiate or enter into any agreements (including, without limitation, the SaaS Agreement) with End Customers. Partner must register each Prospect lead with Membrain (and have such lead accepted by Membrain) to ensure the Prospect is not already an End Customer or Prospect of Membrain or another partner. Any Membrain acceptance of a Prospect lead is valid for a period of 6 months whereafter, should the Prospect lead by such time not become an End Customer, Partner shall forfeit any commission rights to such Prospect unless Membrain agrees otherwise in writing.
2.2 Any and all trademarks, service marks, and trade names Membrain uses in connection with the Products are and remain the exclusive property of Membrain. This Agreement grants Partner no rights thereto, except for a limited right to reproduce trademarks, service marks, and trade names (according to Membrain’s reasonable instructions) as necessary for the sole purpose of promoting, marketing, and mediating deals with Prospects regarding Products pursuant to the terms of this Agreement. Any and all use of the Membrain trademarks, service marks, and/or trade names shall solely inure to the benefit of Membrain.
2.3 The Parties acknowledge there may be occasions when an End Customer desires to retain Partner to provide services (“Professional Services”) in addition to the Products. In turn, Partner may desire for Membrain to assist in all or a portion of the development work and other services constituting the Professional Services (“Membrain Deliverables”) as a subcontractor to Partner. Provided Partner and Membrain, on a case-by-case basis, agree in writing to Membrain Deliverables as well as Membrain’s compensation for such Membrain Deliverables as a subcontractor (i.e., a “Statement of Work” or “SOW), Membrain will provide such Membrain Deliverables to Partner on the following conditions:
(a) Partner enters into a written agreement (“Partner Professional Services Agreement”) with End Customer regulating Partner’s provision of all relating services (including the Membrain Deliverables) to End Customer;
(b) End Customer is informed, in writing, that Partner is solely responsible to End Customer with respect to the Partner Professional Services Agreement;
(c) Partner provides Membrain with the reasonable information and support necessary for Membrain to timely produce the Membrain Deliverables;
(d) Any Membrain fees for Deliverables set forth in a SOW shall be subject to change (by Membrain) should the definition of the Membrain Deliverables and/or any estimated timetable require change;
(e) All Deliverables are provided by Membrain on a commercially reasonable basis meaning Membrain will put forth its best, good-faith efforts to materially comply with any Membrain Deliverable requirements and to deliver the Membrain Deliverables within an estimated time-frame;
(f) To the extent Intellectual Property will be created in connection with Membrain Deliverables, Membrain shall own, immediately upon creation, all IPR subsisting in the Membrain Deliverables. Partner shall receive a non-exclusive license from Membrain for Partner to sublicense the IPR to the End Customer for the End Customer’s use of the Membrain Deliverables on the same terms and conditions as End Customer’s subscription of the relevant Product(s) for as long as such Product subscriptions remain current.
(g) Partner shall timely pay Membrain pursuant to the terms of the SOW and should Partner not timely pay such fees, Membrain shall have a right (among Membrain’s other rights) to offset such due fees against any Commission. Any orders for Membrain Deliverables shall be binding once agreed between the Parties hereto in writing.
2.4 The Parties acknowledge there may be occasions when an End Customer desires to retain Membrain to provide services (“Professional Services”) in addition to the Products. In turn, Membrain may desire for Partner to assist in all or a portion of the development work and other services constituting the Professional Services (“Partner Deliverables”) as a subcontractor to Membrain. Provided Membrain and Partner, on a case-by-case basis, agree in writing to Partner Deliverables as well as Partner’s compensation for such Partner Deliverables as a subcontractor (i.e., a “Statement of Work” or “SOW), Partner will provide such Partner Deliverables to Membrain (and Membrain shall pay Partner for such Partner Deliverables) on the following conditions:
(a) All Partner Deliverables materially comply with the service specifications and time frames for such Partner Deliverables;
(b) To the extent Intellectual Property is created in connection with Partner Deliverables, Membrain shall own, immediately upon creation, all IPR subsisting in the Partner Deliverables. Partner hereby assigns all rights, title, and interests (including, without limitation, intellectual property rights) to such Partner Deliverables as necessary to give full legal effect to this Section 2.4 (b).
(c) Partner shall at no time include any third party Intellectual Property of any kind (including, without limitation, any proprietary rights, open source and/or freeware) in any Partner Deliverables;
(d) Partner shall not, unless otherwise agreed, in writing, by Membrain, (i) use any subcontractor in connection with the production or performance of Partner Deliverables and/or (ii) provide any Partner Deliverables to an End Customer or any third party;
(e) Membrain shall have a right to terminate any SOW with immediate effect for convenience and/or if Membrain concludes (at Membrain’s sole and absolute discretion) Partner has not performed or will not perform in accordance with the SOW. In the event of any such SOW termination by Membrain for convenience, the Parties shall put forth reasonable efforts to agree to reasonable compensation (under the applicable circumstances) for work performed to date by Partner.
(e) Partner shall indemnify Membrain for all losses and costs arising in connection with any Partner breach of this Section 2.4 or any applicable SOW.
3.1 Partner shall promote the marketing of the Products and mediate sales prospects, confer periodically with Membrain on matters relating to market conditions, sales forecasting, Product planning, updates and upgrades, promotional and marketing strategies, etc.
4.1 Product support and training for End Customer’s regarding use of the Products shall be solely provided by Membrain unless agreed otherwise in writing.
5.1 Membrain shall establish retail prices for the Products in its sole discretion and as set forth in the then current Price List. Membrain may in its sole discretion, at any time, change its then current published retail prices for the Products, with 30 calendar days’ notice to Partner. Partner may not market Products at a price less than the retail price set forth in the Price List.
6.1 Partner acknowledges that in the course of dealings between the Parties, Partner will receive Confidential Information about Membrain and its Prospects, End Customers, independent contractors, and suppliers. Partner shall hold such information in strict confidence and shall not disclose the same except for any information Partner can reasonably establish was: (i) generally available to or known to the public through no fault of Partner, (ii) known to Partner, free of any confidentiality obligation, prior to negotiations leading to this Agreement, (iii) independently developed by Partner outside the scope of this Agreement, and / or, (iv) lawfully disclosed by a third party to Partner free of any confidentiality obligation.
6.2 Partner agrees not to disclose specific details about this Partner Agreement or to share End Customer records, contact details for End Customers mediated by Partner or any Product information to any third party.
6.3 The obligations set forth in this Section 6 shall continue for as long as the Confidential Information does not fall within an exception set forth in Section 6.1 above.
6.4 Partner shall promptly notify Membrain of any actual breach of this Section 6 and/or any actual or threatened infringement of Membrain’s IPR.
6.5 Upon execution of the Agreement, Membrain shall have the right to publicly reference, in Membrain’s marketing materials—whether offline or online—Partner as a Membrain partner, and Membrain shall be permitted to use any relevant Partner trademark and/or logo in connection with such marketing usage.
7.1 Except for any rights explicitly granted to Partner under this Agreement, Membrain retains and acquires all right, title, and interest in and to the Products, derivative works of the Products, and any Feedback provided by Partner to Membrain. Membrain shall be free to use and/or commercialize any Feedback without having to make any accounting or payment to Partner. PARTNER ASSIGNS TO MEMBRAIN ALL IPR AS NECESSARY TO GIVE FULL EFFECT TO THIS SECTION 7.1
7.2 It is understood and agreed that Section 7.1 above, to the extent not otherwise stated therein, shall not be construed as an assignment of Partner's processes, methodology, and teaching content to Membrain."
8.1 For the term of the Agreement, Partner shall not market and/or sell any products or services competing with Products. For the term of this Agreement and 1 year thereafter, Partner shall not market and/or sell any products or services competing with Products to any Prospect or End Customer.
9.1 Each Party shall defend, indemnify, and hold harmless the other party, its parents, and affiliates, and its and their respective employees, contractors, officers, and directors, from and against any actions, claims, costs, demands, liability, and expenses, including reasonable attorneys’ fees, arising out of its breach of the Agreement.
10.1 MEMBRAIN SHALL IN NO EVENT (INCLUDING BREACH OF ANY WARRANTY HEREUNDER) BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGE IN CONNECTION WITH OR ARISING OUT OF OR RELATING TO THE AGREEMENT (INCLUDING LOSS OF BUSINESS, REVENUE, PROFITS, USE, DATA, OR OTHER ECONOMIC ADVANTAGE), EVEN IF ANY REMEDY PROVIDED FOR IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.
10.2 MEMBRAIN’S LIABILITY UNDER THIS AGREEMENT UNDER ANY THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, TORT, INDEMNIFICATION, INFRINGEMENT, NEGLIGENCE) SHALL BE LIMITED TO THE GREATER OF THE COMMISSION EARNED BY THE PARTNER DURING THE 12-MONTH PERIOD PRECEDING THE PARTNER CLAIM OR THE OUTSTANDING COMMISSION DUE AND OWING TO PARTNER FROM MEMBRAIN.
11.1 Events causing termination. This Agreement may be terminated immediately by either Party under any of the following conditions:
i) if the other Party is declared insolvent or bankrupt;
ii) if a petition is filed in any court to declare the other Party bankrupt or a fining for a reorganization; or
iii) any breach of the terms of this Agreement which is not remedied (if curable) within 10 calendar days of being notified by the other Party of such breach.
11.2 Membrain may terminate this Agreement, with immediate effect, under any of the following conditions:
i) Partner engages in any activity which is unethical, unfair or contrary to reasonable commercial business standards or any terms of this Agreement with respect to restrictions of Territory, non-competition, confidentiality and/or duly respecting Membrain’s rights to Membrain IPR as regulated by this Agreement and/or the SaaS Agreement (in the event Partner has purchased a Product subscription); or
ii) Partner does not timely pay to Membrain any due amounts and fails to cure such deficiency within 10 calendar days of receiving notice of delinquency in payment from Membrain.
11.3 Termination for Convenience. Either party may terminate this Agreement by providing at least 90 calendar days’ notice prior to the end of the Initial Term or 90 calendar days’ notice of termination at any time thereafter. The foregoing rights of termination for cause are in addition to Membrain’s other rights at law or in equity.
12.1 Entire Agreement. This Agreement and the appendices hereto constitute the entire agreement between the Parties with respect to the subject matter hereof and supersedes all previous proposals, negotiations, commitments, writings, and all other communications between the Parties. This Agreement (in whole or part) may not be released, discharged, waived, or modified except by an instrument in writing signed by a duly authorized representative of each of the Parties.
12.2 In the event of termination of the Agreement by Partner, Partner shall no longer earn any commission after the effective date of termination. In the event of termination of the Agreement by Membrain for convenience, Partner has the right to commissions for a period of six (6) months following the effective date of termination. In the event of termination of this Agreement by Membrain for cause, Partner forfeits any and all commission as of the date of notice of termination.
12.3 The provisions of Article 6 (Confidentiality), 7 (Intellectual Property Rights), 9 (Indemnification), 10 (Limitation of Liability), 12 (Consequences upon Termination) and Article 14 (General Provisions) shall survive any termination of this Agreement as well as any other term or condition which by its nature is clearly intended to survive termination of this Agreement.
13.1 Partner may not assign or otherwise transfer any of its rights or obligations under this Agreement, without the prior written consent of Membrain.
13.2 Membrain may assign or otherwise transfer any of its rights or obligations under this Agreement.
14.1 This Partner Agreement is governed by the substantive laws of Sweden, giving no effect to any conflict-of-laws provisions. ANY DISPUTE SHALL BE FINALLY AND EXCLUSIVELY SETTLED BY EXPEDITED ARBITRATION IN STOCKHOLM, SWEDEN IN ACCORDANCE WITH THE ARBITRATION RULES OF THE STOCKHOLM CHAMBER OF COMMERCE. CUSTOMER WAIVES ANY RIGHT TO A JURY TRIAL. The losing Party shall pay the prevailing Party’s reasonable arbitration costs and attorneys’ fees. Each Party agrees any judgement or arbitration award shall be enforceable against it in any jurisdiction as necessary to reasonably enforce such judgement or award. The United Nations Convention on the International Sale of Goods is expressly excluded from this Agreement. This Agreement has been a negotiated agreement and the provisions herein shall not be construed against either Party as the drafter of such provision.
14.2 No relationship of principal to agent, sales agency, employer to employee, partnership, or joint venture is established between the Parties. Neither Party shall bind the other Party or incur any obligation on its behalf. PARTNER SHALL HAVE NO IMPLIED RIGHTS, UNDER ANY JURISDICTION TO COMPENSATION UNDER THIS AGREEMENT OR IN RELATION TO THE TERMINATION HEREOF BEYOND THE LEVEL EXPRESSLY PROVIDED IN THIS AGREEMENT. SHOULD ANY IMPLIED LAWS BE INVOKED AS A MEANS OF CONFERRING ANY ADDITIONAL COMPENSATION TO PARTNER, PARTNER SHALL FULLY INDEMNIFY MEMBRAIN FOR ANY AND ALL AMOUNTS ARISING IN RELATION THERETO AND ALSO INCLUDING MEMBRAIN’S REASONABLE ATTORNEYS’ FEES. SHOULD ANY GOVERNMENTAL AGENCY ALLEGE OR DETERMINE PARTNER IS AN EMPLOYEE OF MEMBRAIN AS OPPOSED TO AN INDEPENDENT CONTRACTOR AS SET FORTH IN THIS AGREEMENT, PARTNER AGREES TO INDEMNIFY AND HOLD MEMBRAIN HARMLESS IN CONNECTION WITH ALL COSTS AND DAMAGES RELATING THERETO.
14.3 Partner consents to communicate with Membrain electronically. Membrain will communicate by email or by posting notices and/or changes within the Products, services related thereto, and/or on the Membrain website. Partner agrees that all agreements, notices, disclosures, updates to documents residing on the Membrain website, and other communications provided by Membrain electronically shall satisfy any legal requirement that such communications be in writing.
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