Partner Agreement

This Partnership Agreement (“Agreement”) contains the complete terms and conditions of the agreement between you (“Partner”) and TestMonitor | we are Cerios BV (“TestMonitor” or “Company”), a company established and existing under the laws of The Netherlands regarding your participation in the TestMonitor Partner Program (the “Program”).

1. Objectives and Types of Partner

1.1 The objective of Partner in the context of this Agreement is to find prospective clients (“Client”) for the TestMonitor services.

1.2 Types of Partner

1.2.1 Affiliate Partner: Where Partner refers a Client to TestMonitor and, without any further involvement from Partner, that Client enters into an agreement with TestMonitor for the use of the TestMonitor services as defined in the Terms of Service (https://www.testmonitor.com/terms-of-service) (the “Services”), then (i) such Client shall be referred to as a “Referral,” (ii) Partner shall be deemed an Affiliate and (iii) the terms of Appendix A-1 shall be incorporated herein.

1.2.2 Certified Partner: Partner sells TestMonitor Services, Client enters into an agreement with TestMonitor for the use of the TestMonitor Services as defined by the Terms of Service (https://www.testmonitor.com/terms-of-service), then (i) such Client shall be referred to as a Channel Partner Account and (ii) the terms of Appendix A-2 shall be incorporated herein. If a Partner does not meet the qualifications for a given partner type they desire to hold, TestMonitor, at is sole discretion, can terminate the relationship. TestMonitor will review each Partner’s qualifications at the end of each calendar year.

2. General Terms and Conditions

2.1 Company Ownership

Partner acknowledges the Company’s right, title and interest in and to the Company Marks (as defined below) and the TestMonitor Services and acknowledges that nothing herein will be construed to accord to Partner any rights in the Company Marks or the Service except as expressly provided herein. The Partner acknowledges that, except as expressly provided herein, its use of the Company Marks or the TestMonitor Services will not create for Partner any right, title or interest in the Company Marks or the TestMonitor Services and that all use of the Company Marks and the goodwill symbolized by and connected with such use of the Company Marks will inure solely to the benefit of the Company. Partner covenants that (i) it will not at any time challenge the Company’s rights, title, or interest in the Company Marks or the TestMonitor Services (other than to assert the specific rights granted to Partner under this Agreement), and (ii) it will not represent to any third party that it has any ownership or rights with respect to the Company Marks or the TestMonitor Services other than the specific rights conferred by this Agreement. Partner agrees that upon expiration or termination of the Agreement, it will immediately stop using the Company Marks.

2.2 Restrictions

Partner shall not do or attempt to do, and shall not permit any of its Clients or any third party to do, any of the following with respect to any or all of the Services: (a) use them to provide services for or on behalf of any third party, or commercially exploit them in any way, including by operating as a service bureau, by time-sharing, or other multiple user basis, or by framing or mirroring any part of them; (b) sell, resell, assign, sublicense, rent, lease, loan, provide, copy, reproduce, distribute, redistribute, license, sublicense, transfer, publish, make available, or otherwise transfer any of them; (c) use them in any manner that competes with the Company, such as to build a competitive product or service or otherwise modify them or create derivative works or make derivative works based on them, including to build a product or service using any similar ideas, features, functions or graphics of them or to copy or modify any or all of them; (d) use any security testing tools in order to probe, scan or attempt to penetrate or ascertain their security, or to otherwise engage in denial of service attacks; (e) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm them, including any Company system, in any manner, or the Company’s provision of Services to any third party, in whole or in part; (f) use them for purposes of monitoring their availability, performance or functionality, or for any other benchmarking, comparison or competitive purpose; (h) disclose or publish any result of their performance; (i) modify, reverse engineer, adapt, translate, decompile or otherwise derive their source code; (j) use any software in connection with them that may require any or all of them, or other intellectual property of the Company or its third party suppliers or licensors, to be disclosed or distributed in source code form, made available free of charge to recipients, or modifiable without restriction by recipients; (k) remove, modify or obscure any proprietary notices, labels or marks in or on any or all of them; (l) use the Services in a way which knowingly violates the best practices then published by the Company or (m) use them in a manner inconsistent with this Agreement, or in a manner that is contrary to applicable law, including privacy and export laws.

2.3 Term

2.3.1 The initial term of this Agreement shall commence on the date hereof and shall continue for one (1) year from the Effective Date (“Initial Term”) unless terminated earlier by either party as provided for below. Following expiration of the Initial Term, this Agreement shall renew automatically for successive terms of one (1) year each, unless and until a party provides to the other written notice of not less than thirty (30) days prior to the end of the then-current term, stating that such party does not intend to renew this Agreement beyond the then-current term.

2.3.2 Either party may terminate the Agreement immediately if:

the other party is adjudicated bankrupt or insolvent;
the other party files a petition under the bankruptcy or insolvency laws of any jurisdiction or has a receiver, trustee or similar officer appointed over all or a substantial part of its assets; or
the other party is in material breach of any term, provision, representation or warranty contained in this Agreement, which breach is not cured in thirty (30) days of receipt of notice of such breach, or immediately in the event that any such breach is not subject to cure.

2.3.3 In addition, upon expiration of the Initial Term, either party may terminate this Agreement at any time upon no less than thirty (30) days’ prior written notice to the other party.

2.3.4 Any Section which, by its nature, is intended to survive the expiration or termination of this Agreement including, without limitation, the provisions governing audit rights, confidentiality, and indemnification will survive the termination of this Agreement in accordance with their respective terms. Termination of this Agreement does not absolve Partner of payments due to the Company for amounts earned prior to the termination of the Agreement. No refunds or other payments related to the termination of this Agreement will be made by the Company to Partner in the event of a termination of the Agreement in accordance with the terms of this Section.

2.4 Trademarks, Marketing and Publicity

2.4.1 All trademarks, service marks, trade names, logos or other words or symbols identifying the Service or the Company’s business (the “Company Marks”) are and will remain the exclusive property of the Company. Partner acknowledges and agrees that the Company is the owner and/or licensee of the Company Marks and that all goodwill arising of the Partner’s use of the Company Marks pursuant to this Agreement shall inure to the Company. Partner may use the Company Marks which relate to the Service on promotional materials for such Service, subject to the Company’s prior written consent. Partner shall not acquire any right to or interest in any Company Marks. Partner shall not at any time or in any way indicate ownership of or any right in the Company Marks and shall not contest the right of the Company and its affiliates to the use of any of the Company Marks.

2.4.2 Partner agrees to actively promote and market the Service to its customers, including by conducting marketing and advertising campaigns to its customers. The advertising and marketing materials and documents of Partner in relation to the Service (the “Service Marketing Materials”) must be approved by the Company before the Partner can use them. The Partner shall withdraw any Service Marketing Materials which the Company has justified reasons to consider that are not appropriate and/or adversely affect the image or reputation of the Company or the Service. In addition, in the event the Company conducts any marketing or advertising campaigns with respect to its relationship with the Partner, such advertising and marketing materials that referred to the Partner must be approved by the Partner before the Company can use such materials.

2.5 Confidentiality

A Party receiving Confidential Information (as defined below) (the “Receiving Party”) shall hold confidentially and shall not disclose, except solely in performance of its duties and services under this Agreement, any Confidential Information of the disclosing party (the “Disclosing Party”). The terms and conditions of this Agreement shall be deemed to be Confidential Information of each Party and no Party shall disclose the existence of this Agreement or any of the terms and conditions of this Agreement without the prior written consent of the other Party. Each Party acknowledges that the Disclosing Party has a legitimate business interest in protecting its Confidential Information. If a Receiving Party violates any of the provisions of this provision, the Disclosing Party may sustain irreparable damage and harm and, therefore, the Receiving Party irrevocably and unconditionally agrees that, in addition to any other remedies which the Disclosing Party may have under this Agreement or otherwise, all of which remedies shall be cumulative, the Disclosing Party shall be entitled to apply to any court for temporary preliminary and permanent injunctive relief and other equitable relief.

For purposes of this Agreement, “Confidential Information” means, with respect to any person, all non-public information about such persons, business or activities that is proprietary and confidential in nature including, without limitation, all business, financial, technical and other information of a Party marked or designated as “confidential” or by its nature, circumstances and surroundings disclosure should be reasonably regarded as confidential. Confidential Information includes not only written or other tangible information, but also information transferred orally, visually, electronically or by any other means. Notwithstanding the foregoing, Confidential Information does not include information that (a) is in or enters the public domain without breach of this Agreement, (b) receiving person lawfully receives from a third party without restriction on disclosure or without breach of a non-disclosure obligation, (c) receiving person can establish that it knew prior to receiving such information from a disclosing person, or (d) the receiving person can establish that it developed such information independently and without use or reference to the information disclosed by the disclosing person.

2.6 Taxes

2.6.1 Partner shall be solely responsible for determining whether:

Partner or TestMonitor is required by applicable law to remit to the appropriate authorities any value added tax or any other taxes or similar charges applicable to the commissions paid to Partner, as applicable, and remitting any such taxes or charges to the appropriate authorities on behalf of itself or TestMonitor, as appropriate; and
TestMonitor is required by applicable law to withhold any amount of the commissions and for notifying TestMonitor in writing of any such requirement. Partner agrees to fully indemnify TestMonitor against any claims that may be asserted against TestMonitor or any losses TestMonitor may incur in the event Partner fails to notify TestMonitor of such requirement (including penalties and interest).

2.6.2 In the event of an audit of TestMonitor, Partner agrees to promptly cooperate with TestMonitor and provide copies of Partner’s tax returns and other documents as may be reasonably requested for purposes of such audit, including but not limited to records showing the Partner is engaging in an independent business.

2.7 Personal Data

2.7.1 TestMonitor is not obliged to share with Partner any of the personal data of the Referred Clients (or any natural persons representing the Clients or providing services or work for them) who have executed an agreement with TestMonitor.

2.7.2 If the Partner wishes to keep personal data concerning Referred Clients for its own internal use, the Partner must obtain prior consent from the respective Referred Clients directly (or any natural person representing the Clients or providing services or work for them).

2.7.3 TestMonitor will permanently delete Partner’s personal data related to the Partner account within thirty (30) days upon termination of this Agreement. 2.7.4 If the Partner requests in written form for their personal data related to their Partner account to be deleted, TestMonitor will erase such data within thirty (30) days upon the reception of the erasure request.

2.7.5 Personal data collected in the Program signup form from Partners who have violated the terms of this Agreement is retained for thirty-six (36) months upon the termination of this Agreement to prevent re-registration by the same person or company.

2.8 Materials

2.8.1 TestMonitor may make available to you a variety of sales and marketing materials such as logos, brochures, banners, photos, etc. (“Materials”), which are subject to the terms and conditions hereof. In utilizing the Materials, Partner agrees that Partner:

may use the Materials only for the purposes of performing your obligations under this Agreement;
will not modify, alter or otherwise change the Materials without TestMonitor's prior written consent;
will cooperate fully with TestMonitor in order to maintain the Materials; and
will use only the Materials which are provided by TestMonitor or expressly approved by TestMonitor in advance of any such use.

2.8.2 All Materials are the copyrighted property of TestMonitor, its affiliates and/or third-party licensors. Furthermore, all trademarks, service marks, trade names, code, data or any other elements contained in the Materials are proprietary to TestMonitor, its affiliates and/or third-party licensors and Partner’s use of the Materials does not grant to Partner ownership thereof. All goodwill symbolized by and connected with such use of the Materials will inure solely to the benefit of TestMonitor.

2.9 Limitation of Liability

2.9.1 TestMonitor and any of its officers, directors, employees, shareholders or agents of any of them shall not be liable to Partner (and vice versa) for any amount or kind of loss or damage that may result to Partner or a third party (including without limitation, any direct, indirect, punitive or consequential loss or damages, or any loss of income, profits, goodwill, data, contracts, use of money, or loss or damages arising from or connected in any way to business interruption, and whether in tort (including without limitation negligence), contract or otherwise) in connection with the Program.

2.9.2 If Partner’s use of Material provided under this Program results in the need for servicing, repair or correction of equipment, software or data, Partner assumes all costs thereof.

2.9.3 TestMonitor's maximum aggregate liability under or in connection with this Agreement and the Program, whether in contract, tort (including negligence) or otherwise (a “Claim”), shall be limited to a sum equal to the aggregate amount which TestMonitor is obliged to pay Partner in the twelve (12) month period immediately prior to the period giving rise to such Claim.

2.10 Miscellaneous

2.10.1 This Agreement shall become effective as of sign-up to the Program and will end when terminated by either party. Either you or TestMonitor may terminate the Partner Agreement at any time in its sole discretion, without cause, by giving the other party a notice of termination at least thirty (30) days in advance. Notice by e-mail, to your address on the TestMonitor records, is considered sufficient notice to terminate the Partner Agreement. Upon termination of the Partner Agreement, TestMonitor will pay to the Partner any legitimate outstanding commissions, as applicable. In addition, unless TestMonitor has terminated the Agreement as a result of Partner’s breach of the Agreement, in which case, TestMonitor shall have no obligation to pay commissions accrued after the termination of Partner Agreement, TestMonitor shall pay any commissions due, as applicable, for up to twelve (12) months following termination of the Agreement.

2.10.2 TestMonitor reserves the right to terminate the Partner Agreement with immediate effect with any Partner who TestMonitor reasonably believes has violated this Agreement or applicable laws. Such violating Partner shall not be entitled to any accrued and unpaid commissions.

2.10.3 Regardless of the termination cause, if the Partner is using a free demo or a royalty free account provided by TestMonitor for internal use, testing purposes or demonstrating TestMonitor Services to Clients, it will be converted into a trial account upon termination of the Agreement. The foregoing conversion into a trial account may result in additional fees for the Partner.

2.10.4 Partner and TestMonitor are independent contractors, and nothing in this Partner Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. Partner has no authority to represent or act on behalf of TestMonitor, including to make or accept any offers or representations or payments on TestMonitor's behalf.

2.10.5 TestMonitor reserves the right to update and change the terms of this Agreement from time to time with thirty (30) days’ prior notice via email. Any amendments, modifications, enhancements or changes to the Program including the release of new features and resources made available by TestMonitor from time to time shall be subject to these terms. Continued participation in the Program after any such changes shall constitute your consent to such changes. You can review the most current version of this Agreement at any time at: testmonitor.com/partner-agreement . In the event you do not consent to such changes and instead elect to terminate this Agreement, then provided you are not in breach of the Agreement at the time of termination, TestMonitor shall pay you any commissions based on the terms in effect immediately prior to your termination.

2.11 Applicable law and jurisdiction

2.11.1 This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any principles of conflicts of law. Unless otherwise agreed in writing by the Partner and TestMonitor, any dispute arising out of or relating to the Partner Agreement, or the breach thereof, shall be governed by the terms set forth in Section 2.11.2 below.

2.11.2 In the interest of resolving any disputes that arise between you and TestMonitor in the most expedient and cost-effective manner, you and TestMonitor agree that any and all disputes arising in connection with the Partner Agreement shall be resolved by binding arbitration, as further specified below:

Agreement between the Partner and TestMonitor are governed by Dutch law. The United Nations Convention on Contracts for the International Sale of Goods (CISG) does not apply.
Disputes that arise by reason of the contract concluded between the parties and/or by reason of any further contracts deriving from it shall be resolved by arbitration in accordance with the Arbitration Regulations of the Foundation for the Settlement of Automation Disputes (Stichting Geschillenoplossing Automatisering - SGOA), which has its registered office in The Hague, the Netherlands, the foregoing without prejudice to the right of each party to request preliminary relief in summary arbitral proceedings and without prejudice to the right of each party to take precautionary measures. Arbitration proceedings shall take place in The Hague.
If a dispute that arises by reason of the contract concluded between the parties or by reason of any further contracts deriving from it is within the jurisdiction of the cantonal court (in Dutch: kantongerecht), each party, in derogation from the provisions of Article .2, shall be entitled to bring the case before the legally competent court as a cantonal court case.
The parties shall only be entitled to take the afore- mentioned action if arbitration proceedings concerning the dispute have not yet been instituted in accordance with the provisions of Article .2. If, with due observance of the provisions of Article .3, one or more of the parties have brought the case before the legally competent court in order for it to be heard and settled, the cantonal court judge of that court shall be competent to hear and settle the case.
Regarding a dispute that arises by reason of the contract concluded between the parties or by reason of any further contracts deriving from it, each party shall in all cases be entitled to institute ICT mediation proceedings in accordance with the ICT Mediation Regulations of the Foundation for the Settlement of Automation Disputes. The other party must then actively participate in ICT mediation proceedings that have been instituted. This legally enforceable obligation in any case includes attending at least one joint meeting of mediators and the parties to give this extrajudicial form of dispute resolution a chance of success. Each party shall be free to terminate the ICT mediation proceedings at any time after a joint first meeting of mediators and the parties. The provisions of this paragraph do not prevent a party from requesting preliminary relief in summary arbitral proceedings or from taking precautionary measures if the party deems doing so necessary.

By accepting this Agreement, the Partner confirms that it has reviewed this TestMonitor Partner Agreement and agrees to the terms and conditions stipulated therein. If you are entering into this Agreement on behalf of an entity, such as your employer or the company you work for, you represent that you have the legal authority to bind that entity.

APPENDIX A-1

AFFILIATE TERMS

Qualifications and Certifications

None

Compensation

Affiliates shall be paid a commission equal to ten percent (10%) of the yearly revenue received by TestMonitor from a Referral for up to a maximum of one (1) year. The Referral receives a ten percent (10%) discount by using the Partners discount coupon. Thereafter, no additional commissions will be paid to the Affiliate, even if the Referral renews its subscription for the TestMonitor Services.

Partner will provide Customer with a discount coupon associated with Partner's subscription.

Only pre-registered new customers are eligible for the Partner Commission. Register them by mailing them to partners@testmonitor.com.

TestMonitor shall have no responsibility for determining, remitting, or withholding any taxes applicable to the commissions paid to the Affiliate.

APPENDIX A-2

CERTIFIED PARTNER TERMS

Qualifications and Certifications

Support Functions: Certified Partners should have roles that support the following functions:

Sales
Test Engineering or Test Management
Account Management

A dedicated headcount for each function is not required as employees that support multiple functions will be considered.

Minimum Training Requirements: Certified Partners must have at least two persons that has completed the TestMonitor masterclass. All Certified Partners are responsible for ensuring they maintain the TestMonitor way of working. Partners are invited to join the free yearly TestMonitor update session.

Account Management:Certified Partners are required to provide ongoing account management with a Channel Partner Account. Account management includes initial onboarding of the Channel Partner Account, regular check-ins with the Channel Partner Account to ensure their satisfaction and to discover unmet needs, and to manage all renewals.

Compensation

Upon closing a new sale with a yearly subscription, Certified Partners shall be paid a base commission equal to twenty percent (20%) of the year subscription revenues received by TestMonitor from a Channel Partner Account. In addition, after the first 1 year have completed, for so long as this Agreement is in place, Certified Partners will be entitled to a commission of ten percent (10%) on all Channel Partner Account renewals.

Partner's subscription will be linked to the Partner App for proprietary client management and template management.

Only pre-registered new customers are eligible for the Partner Commission. Register them by mailing them to partners@testmonitor.com

Explanations

Determining Sales Commissions: There are two (2) components to the new sale compensation. The new sale commission is applicable for the first twelve (12) months of the subscription, regardless if the subscription is annual or monthly. The total compensation is based on the sum of both components:

Base Compensation: This is the compensation that all Solution Providers will receive for supporting a new sale, regardless of who sources the lead.
Partner Sourced Lead Compensation: This is the compensation that all Solution Providers will receive if they independently sourced the lead and registered it properly with TestMonitor. If the Solution Provider did not source the lead or did not properly register the lead, they will not receive this compensation.
Renewal Compensation: This is the compensation a Solution Provider will receive at each renewal. In cases where the Channel Partner Account is a monthly subscription that renewal compensation will apply after the first 12 months of the subscription have been completed.

TestMonitor tracks changes to subscriptions on a monthly basis to take into consideration any changes to the Program. At the end of each year, TestMonitor will pay the Solution Provider for the exact subscription revenues that the customer has been in paying status. TestMonitor shall have no responsibility for determining, remitting, or withholding any taxes applicable to the commissions paid to the Solution Provider.

Termination

Upon termination of this Agreement, a Certified Partner customers shall continue to be able to access and use the TestMonitor Service for the duration of the term of their license. Upon termination of this Agreement, TestMonitor may, in its discretion, contact the Certified Partner customers directly to convert such customers to customers of TestMonitor.

Contact Us

If you have any questions about this Partner Agreement, please contact us by email: partners@testmonitor.com

Last update: October 31, 2022

Use cases

Use cases

Partner Agreement

1. Objectives and Types of Partner

1.1 The objective of Partner in the context of this Agreement is to find prospective clients (“Client”) for the TestMonitor services.

1.2 Types of Partner

2. General Terms and Conditions

2.1 Company Ownership

2.2 Restrictions

2.3 Term

2.4 Trademarks, Marketing and Publicity

2.5 Confidentiality

2.6 Taxes

2.7 Personal Data

2.8 Materials

2.9 Limitation of Liability

2.10 Miscellaneous

2.11 Applicable law and jurisdiction

APPENDIX A-1

AFFILIATE TERMS

Qualifications and Certifications

Compensation

APPENDIX A-2

CERTIFIED PARTNER TERMS

Qualifications and Certifications

Compensation

Explanations

Termination

Contact Us