Last updated: 18th September 2023.
These Terms and Conditions (“T&C”) govern your participation in the Charles’ partner program, as described herein (“the Partner Program”) between Charles GmbH (“Charles“) and you or the entity you represent (“Partner“ or “you“). The T&C apply to you when you sign the Partner Agreement. Charles and Partner are also referred to individually as a “Party” and collectively as the “Parties.”
1.1 “Sales Lead” means a potential or prospective client for Charles Products that is identified to Charles by Partner via an ideal client profile requirement from Charles.
1.2 “Referred Account” means a Sales Lead with which Charles enters into an agreement to provide Charles Products within six months after the Partner identified and registered the Sales Lead in accordance with Section 3.4. The Sales Lead needs to fulfil the following requirements to be accepted as Referred Account: (a) is not an already existing client of Charles, (b) was not already involved in preliminary or advanced discussions with Charles relating to the sale of Charles Products within the last six months, and (c) has not been submitted to Charles through a Sales Lead Registration Application by another Partner or any other third party within the last six months.
1.3 “Managed Account” means a Referred Account that also has an agreement with the Partner to provide services that must be related to the use of Charles Products, like creative support, strategic consulting, technical support and implementation excellence. The status as a Managed Account ends when either the agreement with Charles or the Partner is terminated.
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 “Charles Materials” means any promotional and educational material relating to Charles Products provided to Partner by Charles for use in connection with the Partner Program.
1.6 “Charles Products” means Charles’ Software-as-a-Service solution to enable conversational commerce and related services via instant messaging channels, as further described on Charles’ website, www.hello-charles.com or in the respective agreement that Charles concludes with a Referred Account.
1.7 “Tier” means the level of Partner’s participation in the applicable Partner Program, the levels being Registered, Selected, Premium.
2 PARTNER PROGRAM ACCEPTANCE
2.1 Application Process. To be accepted as a Partner, you must complete and submit a Partner Program application. Charles will review your application and notify you whether you have been accepted to participate in the Partner Program.
2.2 Withdrawal. Charles reserves the right to withdraw its given acceptance according to Section 2.1 with immediate effect, if you are not actively engaged in the Partner Program as further described in Section 2.3. Payment claims that have arisen up to the withdrawal will be settled.
2.3 Inactive Engagement. Your engagement will be designated as inactive, if you
(a) are not participating in the meetings Charles requested as further described in Section 4.2; or (b) are not able to provide to Charles upon request documentation demonstrating your effort to fulfil the services you agreed to provide according to Section 3 within the last six months; this means that either no qualified Sales Leads were registered in the last six months, more than two Referred Accounts churned within the last six months or all Referred Accounts the Partner is responsible for as a whole did not grow in terms of all combined Charles’ fees during those six months.
3 PARTNER PROGRAMS
3.1 Sales Services. The Partner shall provide active engagement on the sale of Charles Products, including but not limited to conducting demo calls, presenting and promoting Charles Products to potential clients and negotiating on terms and conditions Charles defines (the “Sales Services“). For the avoidance of doubt, the Partner is not entitled to enter into agreements with Sales Leads on behalf of Charles and only mediates the opportunity to conclude a contract for Charles with Sales Leads to become Referred Accounts. The Parties agree that Charles will directly enter into agreements with Sales Leads for the provision of Charles Products.
3.2 Success Services. The Partner shall provide onboarding of Managed Accounts, client support and maintenance services relating to the management of the Charles Products for Managed Accounts, including but not limited to creating and executing marketing campaigns and services, strategic consulting and forwarding technical support inquiries to Charles (the “Success Services“). The Partner will be responsible for all functions relating to performance of the services to Managed Accounts, and Charles shall have no obligation to provide any services or have any liability under any agreement that Partner may enter into with any Managed Accounts with respect to the services towards Managed Accounts.
3.3 Tiers. Charles may offer certain advantages to Partner based on the Partner’s Tier. Charles may, in its sole discretion, change the advantages available, and qualifying criteria for each Tier upon written notice to Partner. Partner’s Tier shall be reviewed twice a year to determine Tier eligibility, and Partner’s Tier may be raised or lowered based on the Partner Program requirements.
3.4 Sales Lead Registration. During the term of the Partner Agreement, Partner shall use commercially reasonable efforts to identify specific Sales Leads and market and promote Charles Products to Sales Leads. Partner must register the Sales Lead. If Charles notifies Partner that such Sales Lead does not qualify as Referred Account, Partner will immediately cease all Sales Services with respect to such Sales Lead. If Charles notifies Partner that such Sales Lead does qualify as Referred Account, at Charles’ request, Partner shall discuss each completed Sales Lead Registration Application in reasonable detail with Charles, and will assist Charles in making contact with the Sales Lead by arranging an introduction, meeting, conference call, or other means of communication between Charles and the Sales Lead.
4.1 Training. Charles may provide Partner with (a) sales training focused on the marketing and promotion of Charles Products, and (b) additional training focused on the management and support of Managed Accounts. In addition, Charles may require that Partner participates in mandatory training and certification prior to the commencement of any services to ensure a sufficient quality level. Charles may offer additional training to Partner at different Tiers as described in more detail in the Partner Program Framework. The Partner should use its best effort to familiarize with the tool structures and functions of Charles Products to the extent that they are able to fulfil the Success Services towards Managed Accounts without further assistance of Charles. Charles may change any such training it provides from time to time in its sole discretion.
4.2 Meetings. The Partner agrees to arrange within 21 days after Charles’ request a meeting to discuss the status of the relationship contemplated herein and/or stay informed about Charles Products and their features.
4.3 Subcontracting. Partner shall not subcontract any of its obligations herein.
4.4 Exclusivity; Contractual Penalty. During the term of the Partner Agreement, Partner assures the sole and exclusive cooperation with Charles as a software service provider around conversational commerce, including (i) WhatsApp, (ii) Facebook, Instagram and other communication channels owned by Meta Platforms, and (iii) similar messengers. Partner shall not promote, conduct marketing, or distribute any product or service offering with similar functionality to any Charles Product. In case of doubt, if an existing or potential cooperation of the Partner offers a competing product to any Charles Product, Partner shall inform Charles without undue delay and ask for permission. If the Partner does not abide by the exclusive partnership described above and enters or continues to maintain cooperation with a provider in conversational commerce that offers a competing product to any Charles Product without obtaining prior approval from Charles in writing or email, Partner shall pay a contractual penalty of EUR 10,000 per client of Partner that uses the product of the competing third-party as part of their cooperation.
4.5 Business Practices. Partner shall (a) conduct its business under these T&C in a manner that reflects favorably upon Charles, Charles Products, and Charles goodwill and reputation, (b) not engage in illegal, deceptive, misleading, or unethical trade practices, and (c) shall not permit any of its subsidiaries or affiliates, or any of its or their respective directors, officers, managers, employees, independent contractors, representatives, or agents to, promise, authorize, or make any payment, or otherwise contribute any item of value, directly or indirectly, to any third party, in violation of any applicable anti-bribery or anti-corruption law.
4.6 Restrictions. Partner shall not (a) sell, resell, distribute, license or sublicense the Charles Products directly to any Sales Lead, but will instead refer all Sales Leads to Charles; (b) make any statements concerning the Charles Products that are false, misleading or inconsistent with the Charles Materials, or other materials (including price lists) published or otherwise supplied by Charles; (c) make any commitments, warranties or guarantees to Sales Leads with respect to the Charles Products, the pricing thereof, or Partner’s relationship with Charles; (d) violate the guidelines and terms and conditions of the offered communication messenger that Charles or the respective communication messenger provides to Partner; or (e) distribute any unsolicited bulk emails (spam) mentioning or referring to Charles or the Charles Products. Partner has no authority to (i) negotiate any contract for or on behalf of Charles or (ii) bind Charles to any contract, representation or understanding concerning Charles or the Charles Products, or any other products or services offered by Charles that are outside the scope hereof.
4.7 No Public statements. In order to perform the agreed services, the Partner may recommend Charles Products and talk about the cooperation conducted to its clients or other potential prospects. Partner shall not publicly mention or discuss the cooperation between the Parties, which includes adding the Charles brand on the webpage, unless explicitly permitted by Charles (e.g., for Partners in the Selected and Premium Tier) or Partner is required to do so by applicable law.
5.1 Payment. Charles shall pay to Partner benefits based on a percentage of the Referred Account’s and / or Managed Account’s revenue to the Charles Products for the applicable calculation period. For benefits for Referred Accounts, the percentage depends on the Partner’s Partner Program Tier when the Sales Lead was submitted to Charles. For benefits for Managed Accounts, the percentage depends on the Partner’s Partner Program Tier that the Partner holds during the respective half-year.
5.2 Payment Terms. Payments shall be calculated and paid quarterly. Payments for Referred Accounts with monthly contracts and a minimum term of less than 6 months will be made after six months. Payments for Referred Accounts with contracts that include a special right for termination will be made after six months. Payments for Managed Accounts are only made for the period in which an agreement with Charles and the Partner is valid.
5.3 Cancelation. If a Referred Account cancels its subscription for Charles Products within 6 months since the start of its contract with Charles or does not fully pay the agreed fees in the first 6 months, Partner shall not be entitled to such benefits.
6 LICENSES AND OWNERSHIP
6.1 Charles Marks. Subject to the terms and conditions herein and solely for the purposes hereof, Charles grants to Partner a non-exclusive, revocable, non-transferable license, without right of sublicense, to use the Charles trademarks, service marks, and logos that Charles provides (the “Charles Marks”) to perform its obligations. The use of all Charles Marks, including placement and sizing, shall be subject to Charles’ instructions. The use of Partner shall, upon request by Charles, promptly provide Charles with samples of all materials that use the Charles Marks for Charles’ quality control purposes. If, in Charles’ discretion, the Partner’s use of the Charles Marks does not meet Charles’ then-current trademark usage policy, Charles may, at its option, require Partner to revise such materials and re-submit them under this Section 6.1 prior to any further display. Except for the right to use the Charles Marks set forth above, nothing contained herein shall be construed to grant to Partner any right, title or interest in or to the Charles Marks, and all right, title, and interest in and to the Charles Marks shall be retained by Charles. Partner acknowledges that Charles asserts its exclusive ownership of the Charles Marks and the renown of the Charles Marks worldwide. Partner shall not take any action inconsistent with such ownership and further agrees to take all actions that Charles reasonably requests to establish and preserve its exclusive rights in and to the Charles Marks. Partner shall not adopt, use, or attempt to register any trademarks, service marks, or trade names that are confusingly similar to the Charles Marks or in such a way as to create combination marks with the Charles Marks.
6.2 Charles Materials and Instructions. During the term of the Partner Agreement, Charles may make available to Partner certain Charles Materials. Subject to the terms and conditions set forth herein and solely for the purposes hereof, Charles grants to Partner a non-exclusive, revocable, non-transferable license, without right of sublicense, to use the Charles Materials exactly as instructed by Charles to perform Partner’s obligations under the Partner Agreement. These instructions may reflect the policies and terms and conditions of the messenger provider Charles Products relate to.
6.3 Ownership. As between Partner and Charles, Charles retains all right, title, and interest in and to (a) the Charles Marks, (b) the Charles Products, (c) the Charles Materials, and (d) all Intellectual Property Rights related to any of the foregoing. There are no implied licenses under the Partner Agreement.
7 REPRESENTATIONS AND WARRANTIES
7.1 Representations and Warranties. Each Party represents and warrants to the other Party that (a) it has the full right, power and authority to enter into the Partner Agreement and to perform its obligations hereunder, (b) the execution of the Partner Agreement and the performance of its obligations hereunder does not and will not conflict with or result in a breach of any other agreement to which it is a party, and (c) the Partner 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.
7.2 General Disclaimers. Each of Charles and Partner acknowledges and agrees that, in entering into the Partner Agreement, except as expressly set forth herein, it has not relied upon any warranties, express or implied, and that neither Party has made any representations, assurances, or promises that Charles will receive any new referred clients or new business or that Partner will receive any fees as a result of the Partner Agreement. Charles disclaims all representations and warranties regarding the Charles Products, whether express, implied, or statutory, oral or in writing, arising under any laws, including with respect to error-free operation, merchantability, fitness for a particular purpose, or non-infringement.
7.3 Warranties to Third Parties. Except in the course of delivering the Charles Materials as specifically permitted in Section 4.6, Partner shall not provide any representations or warranties to any Sales Lead or any other third party with respect to the Charles Products.
8.1 Confidentiality. Each Party shall maintain in confidence all Confidential Information disclosed to it by the other Party. “Confidential Information” means all data and information of a confidential nature of one Party disclosed by such Party to the other Party, as well as information that one Party knows or reasonably should know that the other Party regards as confidential, including business practices, software, technical information, future product/services plans, programming/design techniques or plans, know-how, trade secrets, prospects, clients, end users, suppliers, development plans or projects, and services. Confidential Information may be communicated orally, in writing, or in any other recorded or tangible form. Neither Party shall use or disclose Confidential Information for any purpose outside the scope of the Partner Agreement, except as expressly authorized herein. Neither Party will disclose, deliver, distribute, demonstrate or otherwise make available the Confidential Information to anyone without the prior express written consent of the other Party; provided, however, each Party may disclose Confidential Information to its employees, subcontractors or agents solely to the extent that they have a need to know such information for the performance of their services to the other Party and only if they 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. Each Party shall promptly notify the other upon discovery of any unauthorized use or disclosure of the Confidential Information.
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 competent proof that such Confidential Information:
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.
9.1 By Charles. Charles 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 Charles Marks, in the absence of any modifications by Partner thereto, infringe any registered trademark of any third party.
9.2 By Partner. Partner shall indemnify, defend, and hold Charles 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 of any services, (b) allegations that Partner made a representation or warranty regarding Charles or the Charles Products that is inconsistent with the Charles Materials provided to Partner by Charles, or is otherwise unauthorized by Charles, or (c) Partner’s infringement of the guidelines and terms and conditions of the communication messenger provided by Charles or the respective communication messenger.
10 LIMITATION OF LIABILITY
10.1 Charles shall be fully liable without restriction – regardless of the subsequent provisions of this Section 10 - for intentional or grossly negligent damage, for damages resulting from the injury to life, body or health, and as far as required under the German Product Liability Act (Produkthaftungsgesetz).
10.2 In cases of slight negligence, Charles’ liability for the compensation of damages or expenses incurred in vain – regardless of the legal grounds – shall be limited to a total maximum of 50 % of remuneration under the Partner Agreement in the relevant year, whereas the average of the months lapsed in the relevant year is extrapolated for the entire year.
10.3 Liability for consequential or indirect damages, such as lost profits, damages caused by business interruption or loss of savings, is excluded.
10.4 These liability provisions apply, irrespective of their legal basis, to all claims for damages and reimbursement, including pre-contractual and auxiliary contractual claims.
11 TERM; TERMINATION
11.1 Term. Unless otherwise agreed in the Partner Agreement, the initial term of the Partner Agreement shall be twelve (12) months from the date of its mutual signature and each subsequent term also twelve (12) months (each a “Term”), unless terminated earlier in accordance with the provisions of this Section 11.
11.2 Renewal. At the end of each Term, the Partner Agreement shall be subject to automatic renewal for another Term, unless the Partner provides written notice of termination no later than three (3) months or Charles provides written notice of termination no later than one (1) month prior to the expiration of the then-current Term.
11.3 Termination for Breach. Either Party may terminate the Partner Agreement at any time for cause resulting from the material breach of the Partner 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 Partner Agreement, the Partner Agreement shall terminate one day after the thirty (30) day period unless otherwise agreed.
11.4 Effect of Termination; Duties of the Parties Upon Termination. Upon termination or expiration of the Partner Agreement, Partner shall (a) refrain thereafter from representing itself as a promoter or marketer of Charles Products, or as a referral partner of Charles, (b) immediately cease all use of any Charles Marks and Charles Materials, and (c) upon Charles choice, destroy or return to Charles the Charles Materials and all tangible items in Partner’s possession or under its control containing Confidential Information of Charles. Upon termination or expiration of the Partner Agreement, Charles shall return to Partner all tangible items in Charles’ possession or under its control containing Partner’s Confidential Information. Upon termination or expiration of the Partner Agreement, all licenses granted under the Partner Agreement shall terminate. In case of expiration or termination of the Partner Agreement, Charles shall fulfil its obligation to pay Partner the benefits that are payable hereunder with respect to Referred Accounts that have been accepted by Charles prior to such expiration or termination of the Partner Agreement, unless the termination is based on a material breach by Partner in accordance with Section 11.3.
11.5 Survival. The following provisions shall survive expiration or termination of the Partner Agreement: Sections 1 (Definitions), 6.3 (Ownership), 7.2 (General Disclaimers), 8 (Confidentiality), 9 (Indemnities), 10 (Limitation of Liability), 11.4 (Effect of Termination; Duties of the Parties Upon Termination), 11.5 (Survival), and 12 (Miscellaneous).
12.1 Relationship of the Parties. The relationship of Partner and Charles is that of independent contractors. Regardless of the use of the word “partner” in the title of the Partner Agreement, neither Party is, nor shall be deemed to be, a partner, joint venturer, agent, employee or legal representative of the other Party for any purpose. Neither Party shall be entitled to enter into any contracts in the name of or on behalf of the other Party, and neither Party shall be entitled to hold itself out as having authority to do so. No Party shall incur any debts or make any commitments for the other, except to the extent, if at all, explicitly provided herein.
12.2 Assignment. Partner shall not assign or transfer the Partner Agreement, in whole or in part, whether by operation of law, change of control, or otherwise, or delegate any of its obligations hereunder, without the prior express written consent of Charles. Subject to the foregoing, the Partner Agreement shall be binding upon the successors and permitted assigns of the Parties. Any assignment in violation of the foregoing shall constitute a material breach of the Partner Agreement and shall be null and void.
12.3 Governing Law, Place of Jurisdiction. The Partner Agreement shall be exclusively governed by the laws of the Federal Republic of Germany, with the exception of UNCISG. The place of jurisdiction shall be the registered office of Charles.
12.4 Severability. Whenever possible, each provision of the Partner Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of the Partner Agreement is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of the Partner Agreement.
12.5 Changes to the T&C. Charles shall notify Partner of any changes to these T&C in writing or by e-mail. If Partner does not object to such other changes within 15 days after receipt of the notification, the changes shall be deemed to be agreed. In the respective notification, Partner will be informed about the right to object and the legal consequences of silence in the event of changes to the T&C. If Partner objects in time, both Parties shall have an extraordinary right of termination.
12.6 Entire Agreement. The Partner Agreement including the T&C shall constitute and contain the complete, final and exclusive understanding and agreement of the Parties and cancel and supersede any and all prior negotiations, correspondence, understandings, and agreements, whether oral or written, between the Parties respecting the subject matter thereof. Alterations hereto shall be made in writing. This also applies to an alteration of this written form requirement.