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LAST UPDATED: JANUARY 29, 2024

Katana Technologies LTD. Technology Partner Program Agreement

PLEASE READ THIS PARTNER PROGRAM AGREEMENT (THIS “AGREEMENT“) CAREFULLY. This Agreement governs your participation in the Technology Partner Program (as defined below) and is an agreement between Katana Technologies Ltd., a corporation incorporated under the federal laws of Canada (“Katana”, “our” or “us”) and you or the entity you represent (“you” “You“, or “Partner“). This Agreement must be signed by you and delivered to us and will be effective upon email confirmation from Katana that your participation in the Technology Partner Program is accepted (the “Effective Date“). Katana and Partner are sometimes referred to individually as a “Party” and collectively as the “Parties.”

1. DEFINITIONS

1.1 “Affiliate” has the meaning ascribed to that term in the Canada Business Corporations Act, and in the case of Katana, includes Katana Technologies OÜ, Inc., Katana’s parent company.

1.2  “Confidential Information” means all data and information of a Party that is disclosed by such Party to the other Party at any time, regardless of whether or not such data or information is marked as confidential or not, and regardless of whether disclosed orally, in writing, or in any other recorded or tangible form, including, without limitation, methods of operation, business practices, software, code, technology, programs, source code, technical information, inventions, products, prices, fees, costs, plans, programming or design techniques or plans, know-how, trade secrets, prospects, marketing methods, marketing materials, personnel, customers, referral sources, end users, suppliers, competitors, development plans or projects, services and other confidential or proprietary information or other specialized information or proprietary matters.

1.3 “Eligible Referral” means a Sales Lead:

  • (a) who at the time Partner identifies such Sales Lead, is not already an existing customer of Katana  or was not already involved in preliminary or advanced discussions with Katana or its Affiliates relating to the sale of Katana  Products;
  • (b) who has not previously been submitted to Katana  through a Sales Lead Registration Application by Partner or any other third party;
  • (c) who Katana  accepts a Sales Lead Registration Application from Partner as further described in Section 4.4(b) below; and
  • (d) who Katana  enters into an agreement to provide Katana Products to no later than ninety (90) days after Katana’s receipt of a Sales Lead Registration Application for such Eligible Referral from Partner.

1.4 “Intellectual Property Rights” means all intellectual property and proprietary rights now known or hereafter recognized in any jurisdiction, including rights associated with any of the following (i) patents, patent applications, patent disclosures, and inventions and all improvements thereto (whether or not patentable or reduced to practice), (ii) trademarks, service marks, domain names, trade dress, and other indicia of source, together with the goodwill associated therewith, (iii) copyrights, moral rights and works of authorship (whether or not copyrightable), and (iv) trade secrets, know-how, technologies, software, databases, processes, techniques, protocols, methods, formulae, algorithms, layouts, designs, specifications and other Confidential Information.

1.5 “Katana Marks” has the meaning ascribed to that term in Section 6.1.

1.6 “Katana  Materials” means the visual interfaces, graphics, design, systems, methods, information, computer code, software, services, “look and feel”, organization, compilation of the content, code, data, and all other elements of the Katana Products provided or made accessible to Partner for use in connection with this Agreement.

1.7 “Katana Products” means the proprietary customer engagement and management software platform and related services offered by Katana and its Affiliates as further described on www.katanamrp.com.

1.8 “Partner Portal” means the web-based application where Partner may access and obtain Katana  Materials and other marketing resources for the Katana  Products, register Sales Leads by submitting Sales Lead Registration Applications, and receive other technical details and support related to the Katana  Products and participation in the Partner Program, https://katanamrp.com/integration-partners.

1.9 “Partner Program” means Katana’s Technology Partner Program, as described in this Agreement.

1.10 “Partner” means an individual, firm, corporation, company or partnership that has agreed to the terms of this Agreement and has been approved by Katana as a participant in the Partner Program. The different types of Partner tracks are listed below:

  • (a) “Technology Partner” is an Partner who: (i) has been accepted by Katana  into the Partner Program and (ii) is an app, or system integrator performing Referral Services.

1.11 “Referral Fees” has the meaning ascribed to that term in Section 5.1.

1.12 “Referral Services” means the marketing and promotion of Katana  Products and the referral of leads for the sale of Katana Products, as further described in this Agreement.

1.13 “Sales Lead” means a potential or prospective customer for the Katana  Products that is identified to Katana by Partner via a Sales Lead Registration Application submitted through the Partner Portal, Web Page or Referral Link.

2. PARTNER PROGRAM ACCEPTANCE

2.1 Acceptance. You must complete, submit, and sign this Agreement in order to apply to become a Partner of Katana. Any application may be approved or rejected by Katana in its sole and absolute discretion. Katana will notify you if you have been approved as a Partner at which time, this Agreement shall govern the relationship between you and us.

3. PARTNER PROGRAM ACCEPTANCE

3.1 Tiers. In addition to payment of applicable Referral Fees, Katana may offer certain benefits to Partner based on the level of Partner’s participation in the applicable Partner Program and attaining certain qualifying criteria, as further described in Katana ’s Technology Partner Program https://katanamrp.com/integration-partners/ and in the Partner Portal (each such level, a “Tier“). Katana may, in its sole and absolute discretion, change the benefits available, and qualifying criteria for each Tier upon written notice to Partner. Partner’s Tier shall be reviewed annually to determine Tier eligibility. Katana reserves the right to raise or lower Partner’s Tier based on the Partner Program requirements.

3.2 Training. Upon reasonable request by Partner, Katana will make good faith efforts to provide Partner with sales training focused on the marketing and promotion of Katana Products and related services.

3.3 Quarterly Meetings. At the request of Katana, the Partner agrees to meet, either in person, via teleconference or via videoconference, no less frequently than once every calendar quarter to discuss the Partner’s Referral Services and any other matters arising in connection with this Agreement.

3.4 Subcontracting.  The Partner may not assign, sublicense, sublease or otherwise transfer this Agreement or any interest herein without the prior written consent of Katana.

3.5 Competing Products and Business Practices. During the term of this Agreement, Partner shall promptly inform Katana of Partner’s promotion, marketing, or distribution of any product or service offering similar functionality to any Katana Product; provided, however, that the foregoing shall not limit Partner’s ability to promote, market, or distribute any such products or services. Throughout the term of this Agreement, Partner shall:

  • (a) conduct its business under this Agreement in a manner that reflects favorably upon Katana, Katana Products, and the goodwill and reputation of Katana and its Affiliates;
  • (b) not engage in illegal, deceptive, misleading, or unethical trade practices;
  • (c) not, nor permit any of its Affiliates, or any of its or their respective directors, officers, employees, agents or representatives to, promise, authorize, or make any payment, or otherwise contribute any item of value, directly or indirectly, to any third party.

4. REFERRAL SERVICES

4.1 Appointment. Upon acceptance by Katana of Partner into the Partner Program, Katana appoints Partner, and Partner hereby accepts such appointment, effective as of the Effective Date, as Katana’s non-exclusive referral partner and provider of Referral Services.

4.2 Scope of Authority. With respect to Referral Services, Partner’s sole authority shall be to:

  • (a) market and promote Katana Products as set forth in this Agreement; and
  • (b) provide Sales Leads to Katana via the Partner Portal.

The Parties agree that Katana or its Affiliates will enter into agreements with respect to the provision of Katana Products and related services directly with all Sales Leads, if any.

4.3 Restrictions. Partner shall not:

  • (a) sell, resell, distribute, licence or sublicense the Katana Products directly to any Sales Lead, but shall instead refer all Sales Leads to Katana;
  • (b) make any statements concerning the Katana Products that are false, misleading or inconsistent with the Katana Materials or other materials (including price lists) published or otherwise supplied by Katana from time to time;
  • (c) make any commitments, warranties or guarantees to Sales Leads with respect to the Katana Products, the pricing thereof, or Partner’s relationship with Katana;
  • (d) engage in any marketing activities that violate Katana’s Partner Search Engine Marketing Guidelines, which can be accessed in the Partner Portal; or
  • (e) distribute any unsolicited bulk emails (spam) mentioning or referring to Katana or the Katana Products.

Partner has no authority to (i) negotiate any contract for or on behalf of Katana or (ii) bind Katana to any contract, representation or understanding concerning Katana or the Katana Products, or any other products or services offered by Katana that are outside the scope hereof.

5. REFERRAL FEES & PAYMENT

5.1 Referral Fees. Subject to the terms of this Agreement and in consideration for Partner’s performance of the Referral Services, Katana shall pay to Partner a 20% revenue share based on the Eligible Referral’s monthly active paying subscription to the Katana Products for the applicable calculation period of 12 months (the “Referral Fees”), plus applicable sales taxes.

5.2 Payment. Referral Fees shall be paid within thirty (30) days. Partner is solely responsible for remitting all taxes associated with any Referral Fees paid to it under this Agreement. All disputes related to Referral Fees must be submitted, in writing, to Katana within thirty (30) days of release of payment and provide reasonable details to review the dispute.

5.3 Marketing Costs. Partner shall be responsible for all risks, costs and expenses associated with the performance by Partner of the Referral Services, including the payment of all wages, salaries, employment taxes, source deductions and benefits for any personnel employed by Partner in connection with the Referral Services. Partner shall not be reimbursed by Katana or any of its Affiliates for any risk, cost or expense associated with the Referral Services to be provided by Partner under this Agreement.

6. LICENSES AND OWNERSHIP

6.1 Katana Marks. Subject to the terms and conditions set forth in this Agreement and solely for the purposes hereof, Katana grants to Partner a non-exclusive, revocable, non-transferable license, without right of sublicense, to use the Katana trademarks, service marks, and logos set forth in the Partner Portal (the “Katana Marks”) in order to perform its obligations under this Agreement, and for no other or improper purpose.

6.2 Intellectual Property. The Katana Materials and all Intellectual Property Rights of Katana therein, including the Katana Marks, and any parts or elements thereof are solely and exclusively owned and operated by Katana or its Affiliates. Katana or its Affiliates and their respective licensors retain all right, title and interest in the Katana Materials and the Marks, and Partners use of any of them or any parts or elements of them does not and shall not grant Partner any ownership right or Intellectual Property Rights therein.

7. REPRESENTATIONS AND WARRANTIES

7.1 Representations and Warranties. Each Party represents and warrants to the other Party that:

  • (a) it has the full corporate right, power and authority to enter into this Agreement and to perform its obligations hereunder;
  • (b) the execution of this Agreement and the performance of its obligations hereunder does not and will not conflict with or result in a breach (including with the passage of time) of any other agreement to which it is a party; and
  • (c) this Agreement has been duly executed and delivered by such Party and constitutes the valid and binding agreement of such Party, enforceable against such Party in accordance with its terms.

8. CONFIDENTIALITY

8.1 Confidentiality. Each Party shall maintain in confidence all Confidential Information disclosed to it by the other Party. Neither Party shall use for any purpose outside the scope of this Agreement, or disclose to any third party, such Confidential Information except as expressly authorized by this Agreement. The receiving Party shall not disclose any Confidential Information to any third party, other than to its and its affiliates’ directors, officers, employees, agents and representatives (collectively, a Party’s “Representatives“) who are required to have such information on a ‘need to know’ basis and who are under confidentiality obligations no less protective of the Confidential Information that as set forth herein. Each Party shall use at least the same standard of care as it uses to protect its own confidential information of a similar nature (and in no event less than reasonable care) to ensure that such Representatives do not disclose or make any unauthorized use of such Confidential Information. A receiving Party shall be solely responsible for any breach by any of its Representatives of any provision hereof. Each Party shall promptly notify the other upon discovery of any unauthorized use or disclosure of the Confidential Information. Notwithstanding any other provision in this Agreement to the contrary, the obligations set forth in this Section 8 shall survive any termination or expiration of this Agreement for a period of five (5) years thereafter; provided that the receiving Party shall safeguard all Confidential Information that is a trade secret as required by this Agreement in perpetuity or for so long as such information remains a trade secret under applicable law.

8.2 Exceptions. The obligations of confidentiality contained in Section 8.1 shall not apply to the extent that it can be established by the receiving Party by documented evidence that such Confidential Information:

  • (a) was already known to the receiving Party, other than under an obligation of confidentiality, at the time of disclosure by the other Party;
  • (b) was generally available to the public or was otherwise part of the public domain at the time of its disclosure to the other Party;
  • (c) became generally available to the public or otherwise became part of the public domain after its disclosure, other than through any act or omission of the receiving Party in breach of this Agreement;
  • (d) was disclosed to the receiving Party, other than under an obligation of confidentiality, by a third party who had no obligation not to disclose such information to others; or
  • (e) was independently developed by employees and contractors of the receiving Party who had no access to the Confidential Information, as proven by clear and convincing evidence.

8.3 Authorized Disclosure. Notwithstanding any provision to the contrary herein, the receiving Party may disclose Confidential Information to the extent required by law or any governmental authority, provided that such receiving Party shall to the extent practicable use commercially reasonable efforts to assist the disclosing Party in securing confidential treatment of such information required to be disclosed. Prior to disclosing any Confidential Information under this Section 8.3, if legally permissible the receiving Party shall take reasonable steps to give the other Party sufficient notice of the disclosure request in order for such Party to contest the disclosure request.

9. INDEMNITIES

9.1 By Katana. Katana shall indemnify, defend, and hold Partner harmless from and against any and all liabilities, losses, damages, costs, fees, and expenses (including reasonable attorneys’ fees) arising out of any third party claims, suits, actions, or proceedings (collectively, “Claims“) based on an allegation that the Katana Marks, in the absence of any modifications by Partner thereto, infringes any United States trademark of any third party.

9.2 By Partner. Partner shall indemnify, defend, and hold Katana harmless from and against any and all liabilities, losses, damages, costs, fees, and expenses (including reasonable attorneys’ fees) arising out of any Claims related to: (a) Partner’s performance or non-performance of any Referral Services, (b) any default or breach by Partner of any obligations arising under this Agreement; or (c) allegations that Partner made a representation or warranty regarding Katana  or the Katana  Products that is inconsistent with the Katana  Materials provided to Partner by Katana, or is otherwise unauthorized by Katana.

9.3 Indemnification Procedure. An indemnifying Party hereunder shall be liable for any costs and damages to third parties incurred by the other Party which are attributable to any such Claims, provided that such other Party (a) notifies the indemnifying Party promptly in writing of the claim, (b) gives the indemnifying Party the sole authority to defend, compromise or settle the claim, and (c) provides all available information, assistance, and authority at the indemnifying Party’s reasonable request and at the indemnifying Party’s reasonable expense to enable the indemnifying Party to defend, compromise, or settle such claim. An indemnifying Party hereunder shall diligently pursue any defense required to be rendered hereunder, shall keep the indemnified Party informed of all significant developments in any action defended by the indemnified Party, and shall not enter into any settlement affecting the indemnified Party’s interests without the prior consent of the indemnified Party.

10. LIMITATION OF LIABILITY

10.1 EXCEPT IN CONNECTION WITH BREACHES OF CONFIDENTIALITY AND PAYMENTS TO THIRD PARTIES ARISING FROM EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9 (A) UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT OR OTHERWISE, SHALL EITHER PARTY, ITS SUCCESSORS OR ASSIGNS, BE LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF GOODWILL, WORK STOPPAGE, HARDWARE OR SOFTWARE FAILURE, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) IN NO EVENT SHALL EITHER PARTY’S TOTAL LIABILITY ARISING OUT OF ANY CLAIM OR CAUSE UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF PAYMENTS ACTUALLY PAID TO PARTNER UNDER THIS AGREEMENT. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY.

11. TERM; TERMINATION

11.1 Term. The term of this Agreement shall be one (1) year from the Effective Date unless terminated earlier in accordance with the provisions of this Section 11. This Agreement shall renew automatically for successive additional one (1) year terms unless one Party provides the other written notice no later than thirty (30) days prior to the expiration of the then-current term of the Agreement of its intention to allow the Agreement to expire at the end of such term.

11.2 Termination for Breach. Either Party may terminate this Agreement for cause resulting from the material breach of this Agreement by the other Party by providing the breaching Party written notice of such material breach and the intention to terminate for cause. The Party receiving such notice shall have thirty (30) days to cure such material breach. If at the end of such thirty (30) day period, the breach has not been cured to the reasonable satisfaction of the Party seeking to terminate the Agreement, the Agreement shall terminate.

11.3 Termination for Convenience. Either Party may terminate this Agreement for convenience upon thirty (30) days’ written notice.

11.4 Effect of Termination; Duties of the Parties Upon Termination. Upon any termination or expiration of this Agreement, Partner shall (a) refrain thereafter from representing itself as a promoter or marketer of Katana Products, or as a referral partner of Katana, (b) immediately cease all use of any Katana Marks and Katana Materials, and (c) return to Katana the Katana Materials and return (or certify to Katana the destruction of) all Confidential Information of Katana in Partner’s possession or under its control . Upon any termination or expiration of this Agreement, Katana shall return (or certify to Partner the destruction of) all Confidential Information of Partner in Katana’s possession or under its control. Upon any termination or expiration of this Agreement, all licenses granted under this Agreement shall terminate. The expiration or termination of this Agreement for any reason, except in accordance with Section 11.2 for a material breach or default by Partner, shall not relieve Katana of its obligation to pay Partner the Referral Fees that are payable hereunder with respect to Eligible Referrals that have been accepted by Katana prior to such expiration or termination of this Agreement. In the event that Katana terminates this Agreement in accordance with Section 11.2 due to material breach or default by Partner, Katana ’s sole and exclusive obligation to Partner shall be to pay Partner the Referral Fees that have accrued up to the date of such termination, less any costs, damages or expenses incurred by Katana as a result of such Partner’s material breach or default.

11.5 Survival. The following provisions shall survive any expiration or termination of this Agreement: Sections 1 (Definitions), 6.3 (Ownership), 7.2 (General Disclaimers), 8 (Confidentiality), 9 (Indemnities), 10 (Limitation of Liability), 11.4 (Effect of Termination) and 12 (General).

12. GENERAL

12.1 Entire Agreement. This Agreement constitutes the entire agreement between the parties to this Agreement with respect to the subject matter of this Agreement and cancels and supersedes any other understandings and agreements between the Parties prior to the date hereof with respect to such subject matter. There are no representations, warranties, terms, conditions, undertakings or collateral agreements, express, implied or statutory, between the Parties other than those expressly set forth in this Agreement.

12.2 No Agency. The Partner is and shall at all times be an independent contractor and nothing in this Agreement is intended or be deemed to create a joint venture, partnership or agency relationship between the Parties. Neither Party has the right or authority to assume or create any obligation or responsibility or act as agent on behalf of the other.

12.3 Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective heirs, executors, personal representatives, successors and permitted assigns, as applicable.

12.4 Notices. Notices under this Agreement will be in writing and will be delivered by personal delivery, nationally recognized overnight carrier, conventional mail, or email with such notice becoming effective upon receipt by the receiving Party to the last known address of the receiving Party.

12.5 Counterparts and Electronic Signatures. This Agreement may be executed in counterparts, each of which when so executed shall constitute an original and all of which taken together shall constitute one and the same instrument. The parties agree that a faxed, scanned or electronic signature on this Agreement shall constitute a legally binding acceptance to be bound by this Agreement by such signing party.