This Partner Agreement (“Partner Agreement”) is between WineDirect, Inc., a Delaware corporation, for itself and its subsidiary, WD Canada Ecommerce, Inc., incorporated under the laws of the Province of British Columbia, (collectively, “WineDirect, we, us, or our”), and the counterparty who has agreed to the terms of this Partner Agreement (the “Partner”).Â
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TECHNOLOGY PROGRAMÂ
This Partner Agreement, and the Partner Terms and Conditions for WineDirect’s Partner programs located at http://www.winedirect.com/partner-terms (“Partner Terms”), governs WineDirect’s offering of the Technology Program described below (this “Program”) and Partner’s participation in the Program. To the extent that the terms and conditions in this Partner Agreement conflict with the Partner Terms, this Partner Agreement will govern. Terms not defined in this Partner Agreement are defined in the Partner Terms. WineDirect reserves the right to reject any request to participate in the Program, in which case the Partner Agreement will not become effective.Â
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1. Definitions. Unless otherwise defined herein, the capitalized terms used in this Partner Agreement shall have the meaning set forth below:Â
1.1. “Certification” means that Partner has completed the process to ensure that the Connector functions in accordance with WineDirect’s requirements.Â
1.2. “Connector” means a software and communications interface that connects an End User’s business or financial software with a WineDirect Service. An Extractor, as defined in the Partner Terms, is a form of Connector.Â
1.3. “End User” means a customer who purchases a WineDirect Service in conjunction with Partner’s Connector.Â
1.4. “Service” means the software and/or service provided to End Users by WineDirect as specified in the Order Form.Â
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2. Program. Partner will develop, maintain, and support the Connector(s) submitted to WineDirect and achieving Certification.Â
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3. Development, Certification, and Acceptance.Â
3.1. Certification Submission. WineDirect will assist with Partner’s development of the Connector through documentation and specifications WineDirect makes available. WineDirect’s Certification team will also be available as reasonably requested by Partner to answer any questions Partner may have regarding development and Certification of the Connector. Partner will use commercially reasonable efforts to develop and submit the Connector for Certification in accordance with the acceptance criteria and Certification documentation, within 90 calendar days of the Effective Date.Â
3.2. Acceptance and Certification. Each Connector will be subject to WineDirect’s final approval and acceptance prior to Certification. To achieve Certification for each Connector, Partner must ensure the Connector meets the acceptance testing criteria made available by WineDirect, and Partner will submit the Connector and the results of such testing to WineDirect for acceptance. WineDirect will also independently test and evaluate each Connector. If WineDirect rejects a Connector, Partner will correct the Connector and will resubmit the Connector to WineDirect for Certification. If Partner’s Connector is not accepted by WineDirect, WineDirect will provide Partner with a written report describing the reasons for non-acceptance.Â
3.3. Connector Documentation, Training, and Access. Partner will: (a) provide documentation for installation and user support (for example, user guides) to WineDirect in a format specified by WineDirect, (b) provide training resources to WineDirect’s personnel on all aspects of the Connector (including training sessions via webinar and technical documentation), and (c) provide access necessary to enable WineDirect to demonstrate the Connector to End Users and to provide support.Â
3.4. Costs. Unless otherwise specified in this Partner Agreement, Partner will bear sole responsibility for all expenses incurred in connection with the development, maintenance, and support of its Connector(s).Â
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4. Connector Maintenance and Support.Â
4.1. Maintenance. Partner will use commercially reasonable efforts to ensure that each Connector remains functional and compatible in all material respects with WineDirect’s Services. If an updated, modified, or new version of WineDirect’s Services affects the functionality of a Connector, Partner will update the Connector to ensure proper functionality and compatibility and will provide the updated Connector to End Users within a commercially reasonable period of time.Â
4.2. Technical Support.Â
4.2.1. Partner Support. At Partner’s expense, Partner will provide technical support to WineDirect and to End Users to answer questions and resolve problems to the extent such questions or problems relate to the Connector. Requests for technical support may come directly or by escalation or referral by WineDirect. Partner will use commercially reasonable efforts to respond to technical support requests for the Connector within two (2) business days and at no less than the same level of support that Partner provides to Partner’s own customers and end users.Â
4.2.2. WineDirect Support. WineDirect will provide technical support relating specifically to WineDirect’s Services. If Partner determines that a problem experienced by an End User is caused by WineDirect’s Services and not Partner’s Connector, Partner will refer such End User to WineDirect for technical assistance.Â
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5. Acceptable Use of Data and Technology LimitationsÂ
5.1. Acceptable Use of Data. WineDirect’s acceptable use of data conforms to the requirements of the GDPR and CPRA as specified in the Partner Terms.Â
5.2. Technology.Â
5.2.1. Acceptable Use Policy. WineDirect’s Acceptable Use Policy (“AUP”) governs Customer’s access, use, or receipt of WineDirect’s services and Customer's access or use of WineDirect Technology and may be found here: https://www.winedirect.com/acceptable-use-policy. Â
5.2.2. Rate Limitations. WineDirect’s current rate limiting documentation may be found here: https://docs.winedirect.com/docs/rate-limiting.Â
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6. Marketing.
6.1. Partner Business Plan. The Parties may collaborate to establish a detailed marketing and sales plan (“Partner Business Plan”) to promote the Connector. As part of the Partner Business Plan, if any, Partner will: (a) participate in regular reviews of the business and the marketing activities in the Partner Business Plan, and (b) permit WineDirect and third parties to promote and make available the Connector to potential End Users.Â
6.2. Marketing upon Certification.  Upon Certification of each Connector: (a) Partner will be eligible to use WineDirect’s Certification Logo for Partner’s Connector; (b) the Parties may issue a joint press release announcing the Certification and the availability of Partner’s Connector; and (c) the Parties will advertise the availability and features of Partner’s Connector on their respective websites.Â
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7. Modification.  WineDirect may modify this Program, including, for example, the Partnership Sign-Up Form.  If WineDirect modifies this Program, it will provide written notice to Partner of those modifications at least ninety (90) calendar days prior to the effectiveness of the modifications.    If modifications materially and adversely affect Partner, and Partner does not wish to accept such modifications, then Partner may terminate its participation in the Program and this Partner Agreement, and the modifications will not apply during any wind down period as described herein. If modifications are necessary to comply with applicable laws, WineDirect will use commercially reasonable efforts to provide prior notice when practicable.  If Partner does not terminate its participation in the Program as specified in this Section 9 (Modification), then Partner will be bound by the modified terms beginning upon the effective date set forth in the modification notice.Â
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8. Term and Termination.Â
8.1. Term. The term of this Partner Agreement shall be for one (1) year from the Effective Date (“Term”), unless terminated earlier by mutual written agreement of the parties. Upon the expiration of the Term, this Partner Agreement shall automatically renew for additional one (1) year Terms unless written notice of termination is received from the terminating party by the non-terminating party not less than thirty (30) calendar days prior to the expiration of the then-current Term. The Initial Term and each Renewal Term are collectively referred to as the “Term”.Â
8.2. Termination for Cause. Either Party may immediately terminate this Partner Agreement for Cause by giving written notice of termination to the other if the other Party breaches any of its material obligations under this Partner Agreement and does not cure the breach within thirty (30) calendar days after the non-breaching Party gives written notice to the breaching Party.Â
8.3. Effect of Termination or Expiration. Except as otherwise provided in this Partner Agreement, upon termination or expiration of this Partner Agreement:Â
8.3.1. All rights and licenses granted under this Partner Agreement will immediately cease;Â
8.3.2. Partner will have no obligation to support or maintain Connector(s), and WineDirect will stop charging End Users for their use of the Connector upon the expiration of their then-current Subscription Terms;Â
8.3.3. End Users of Partner’s deployed on-premise solution(s), if any, have the right to continue to use the associated Connector(s) at their own risk, and Partner shall have no obligations with regard to such use;Â
8.3.4. Each Party will immediately stop using and either destroy or delete any Confidential Information (as defined in the Partner Terms) provided by the other Party under this Partner Agreement; andÂ
8.3.5. Those provisions of this Partner Agreement that by their nature should survive termination or expiration will survive, including, but not limited to, ownership provisions, confidentiality, disclaimers, indemnities, and limitations of liability.Â
8.4. Wind Down. Both Parties acknowledge that some End Users subscribe to the Services based on the availability of Partner’s Connector and rely on the availability of that Connector. To mitigate any disruption to those End Users, for a period not to exceed 18 months after the date of any termination or expiration of this Partner Agreement, both Parties (a) will ensure that existing End Users can continue to use the Connector and the applicable Service for the remainder of those End Users’ subscriptions, and (b) will continue to perform their maintenance and support obligations under this Partner Agreement with respect to Connectors and Services until all WineDirect Service subscriptions with End Users using Partner’s Connector have terminated or transitioned to other Connectors.Â
8.5. Notice of Sale or Change of Control. If the Connector integrates with software or services developed by a third party or if the Connector is installed locally by End Users, the following additional sections apply:Â
8.5.1. Notice of Sale or Change of Control. Partner shall provide notice to WineDirect of any contemplated sale or change of control of Partner or a Connector that, if completed, would impact ownership of the Connector, and WineDirect will have sixty (60) calendar days from the date of receipt of such notice to elect the option and right to purchase the Connector. Such notice shall include (i) the identity of the offeror, and (ii) the terms of the offer related to the Connector. Partner shall not convey any rights in the Connector until the earlier of either (a) the end of the 60-day period or (b) WineDirect’s notice to Partner that WineDirect has waived WineDirect’s option to purchase the Connector.Â