Fergus Referral Partner Program - Full Terms of Agreement
BY AGREEING TO THE TERMS AND CONDITIONS SET FORTH HEREIN, YOU SUBMIT TO FERGUS TRADE SOFTWARE’S (“WE” OR ”FERGUS”), AN OFFER TO PARTICIPATE IN FERGUS’S REFERRAL PARTNER PROGRAM UNDER THE PROVISIONS OF THIS REFERRAL PARTNER PROGRAM AGREEMENT (THE “AGREEMENT”).
BY JOINING THE REFERRAL PARTNER PROGRAM, YOU HEREBY AGREE THAT YOU HAVE THE REQUISITE AUTHORITY, POWER AND RIGHT TO COMMIT TO THIS AGREEMENT EITHER AS A PERSON AND/OR AS AN ENTITY(IES) (COLLECTIVELY, THE “PARTNER”) WISHING TO PARTICIPATE IN THE FERGUS REFERRAL PARTNER PROGRAM. IF YOU DO NOT HAVE THE AUTHORITY TO DO SO, OR YOU OR THE PERSON/ENTITY DO NOT AGREE TO ANY OF THE TERMS BELOW, FERGUS IS UNWILLING TO ALLOW YOU TO PARTICIPATE IN THE REFERRAL PARTNER PROGRAM, AND YOU SHOULD NOT ACCEPT THE TERMS OF THIS AGREEMENT.
1.0 SCOPE OF AGREEMENT
This Agreement sets forth the terms and conditions pursuant to which Partner will participate in Fergus’s Referral Partner Program through which Partner may, but is not obligated to, refer third parties (each a “Lead”) to Fergus for purposes of acquiring the Fergus software products (“Software”) and services (collectively the “Products”). Partner will be compensated for purchases by Leads as set forth herein.
2.0 APPOINTMENT AND AUTHORITY
- **2.1 Non-exclusive Appointment.**Fergus hereby appoints Partner, and Partner hereby accepts such appointment, as Fergus’s non-exclusive referral and training representative under the terms and conditions set forth herein. In such capacity, Partner will have the right to promote, discuss with, and train Leads those Products authorized in advance by Fergus in writing. Fergus will have the right to update such authorized Products upon written notice to Partner.
- **2.2 Description of Authority.**Partner’s authority under this Agreement shall be limited to: (a) providing Leads to Fergus for the purpose of Fergus soliciting subscriptions for the Products, (b) providing descriptions and information about the Products to potential Leads in accordance with the provisions of this Agreement, (c) demonstrating the Products, if applicable, in accordance with Section 3.0, (d) training Leads in their use of the Products, if applicable, in accordance with Section 3.0, and (e) performing the tasks listed in Section 4.0 or such other tasks as the parties shall mutually agree upon. Partner shall not have the authority to make any commitments or agreements or to incur any liabilities whatsoever on behalf of Fergus, nor shall Fergus be liable for any acts, omissions to act, contracts, commitments, promises, or representations made by Partner.
- **2.3 Collateral.**In conjunction with referring Leads to Fergus, Partner shall have the authority to provide such Leads with a high-level product description, sales and marketing brochures, and other collateral material supplied to Partner by Fergus or speci cally approved by Fergus in writing (“Collateral”). Partner shall have no right to make any changes, additions, or other modi cations to such Collateral.
3.0 DEMONSTRATION OF SOFTWARE
Partner shall have the authority to provide demonstrations of the Software in accordance with this Section 3.0. Subject to the terms and conditions of this Agreement, Fergus hereby grants to Partner a nonexclusive, non-sublicensable, non-transferable, revocable, royalty-free, limited license to perform and display the Software in a non-production environment solely for the purpose of demonstrating the Software to potential Leads. Partner shall not use the Software except as explicitly provided under this Section 3.0. Without limiting the foregoing, Partner shall not directly or indirectly use or otherwise exploit the Fergus Products under this Agreement for its own general internal use or for commercial exploitation. Partner shall not reverse engineer, reverse assemble, decompile, or otherwise attempt to derive source code from any software or any part thereof provided in object code format as part of the Software. Except as expressly provided herein, Partner may not use, modify, reproduce, sublicense, distribute, or otherwise provide to third parties the Software, in whole or in part. Partner shall not remove, obscure, or alter any proprietary notices on the Collateral or Software, including, but not limited to, copyright notices, and shall not permit any third party to do so.
4.0 OBLIGATIONS OF REPRESENTATIVE
- **4.1 Referral Status.**Partner shall complete all the appropriate Sign-On/New Customer elds in the Software to secure Referral Status for each Lead, and ensure the completed Customer Details are entered correctly in the Software, using the provided Referral URL where appropriate. Fergus may update the Software elds and/or Referral URL from time to time in its sole discretion.
- **4.2 Information.**Upon request, Partner shall discuss each Lead in detail with Fergus and shall provide Fergus with all relevant non-con dential information it has regarding each Lead and the relevant commercial market. Upon Fergus’s request, Partner agrees to actively introduce Fergus to the Lead by arranging a meeting, conference call, or other means of communication with the Lead.
- **4.3 No Guarantees.**Partner shall not make representations or guarantees concerning Products or accept the return of or make any allowance for such Products.
- **4.4 Compliance with Policies.**Partner shall abide by the applicable policies and procedures of Fergus as in e ect from time to time and as communicated to Partner.
- **4.5 Further Assistance.**Partner shall furnish other assistance such as Fergus may from time to time reasonably request.
- **4.6 Provision of Training.**Partner may engage the Lead in any training program of the Software for which Partner may or may not charge a Training Fee. Fergus will not be entitled to any percentage of this Training Fee. Partner agrees to limit the Training Fee to an equitable standard market rate for provision of such services at all times.
- **4.7 Marketing Materials.**At all times Partner will abide by Fergus Brand Guidelines. Any additional materials relating to Fergus produced by Partner, not limited to press releases, web banners, graphics, and videos, must be approved by Fergus prior to use.
5.0 OBLIGATIONS OF FERGUS
- **5.1 Marketing Information.**From time to time Fergus shall supply Partner with the Collateral to enable Partner to perform its duties and obligations under this Agreement.
- **5.2 Demonstration.**At a time and location mutually agreed upon by the parties, Fergus shall provide a demonstration of the Software to Partner personnel.
- **5.3 Acceptance.**Fergus may, in its sole discretion, either accept or decline any Lead submitted by Partner. Once accepted, a Lead is deemed a “Qualifying Lead” for purposes of this Agreement.
- **5.4 Quality Assurance.**Fergus will provide regular feedback to the Partner regarding their performance. This will include, but not be limited to, customer survey responses, observation of the Partner in action, or from Fergus direct customer interaction.
6.0 TERMS OF SALE
Fergus shall determine the terms and conditions (including pricing) pursuant to which it shall o er the Products to Qualifying Leads, provided, however, that such Products shall be provided pursuant to Fergus’s standard agreement for such Products (a copy of which will be delivered to Partner upon request), including the then-current standard Terms of Trade available at www.fergus.com, together with any changes thereto as may be agreed to by Fergus and such Qualifying Leads (collectively, the “Purchase Agreement”). Partner shall not negotiate or o er to negotiate any terms of the Purchase Agreement on behalf of Fergus.
7.0 PAYMENT TERMS
- **7.1 Referral Fee.**Subject to the terms and conditions of this Agreement, for each Qualifying Lead that purchases Software from Fergus pursuant to a Purchase Agreement, Fergus shall pay Partner the following Fee Percentage of the Software licensing revenue actually received by Fergus from a Lead for the entirety of time the Partner is ful lling the terms of this agreement and following the Lead’s initial execution of the Purchase Agreement, unless a different referral fee is agreed upon in advance by the parties in writing in connection with a speci c potential Lead (in either case, the “Referral Fee”).
| — | — | — | | Fee Percentage | User | Percentage of Subscription Fee | | | 10-20 | 15% | | | 21-150 | 15% | | | 151 - 500 | 20% | | | 501 - 2500 | 25% | | | 2500+ | 30% |
Partner will receive no consideration for (i) any services, support, or other fees collected by Fergus or (ii) any fees of any kind related to Software licensing revenue after the 24 month license period described above. Except as provided herein, Partner shall not be entitled to any fees or payments by Fergus with respect to such Qualifying Lead, regardless of (a) the terms of the Purchase Agreement between Fergus and such Qualifying Lead, (b) any renewal of the Purchase Agreement between Fergus and such Qualifying Lead, or (c) whether Fergus enters into subsequent agreements with such Qualifying Lead. **7.2 Payment Terms.**Within thirty (30) days following Fergus’s actual receipt of the related Software subscription fees from each Qualifying Lead, Fergus shall pay to Partner the Referral Fees earned by Partner pursuant to this Section 7.0. All Referral Fees shall be paid in New Zealand Dollars. **7.3 Exceptions.**No Referral Fees shall be paid (a) if Partner provides to Fergus any incorrect or misleading information about the Lead or fails to complete in full appropriate Referral Status elds within the Software, (b) for any Lead that is a then-current customer or was previously a customer of Fergus or its a liates, distributors, or resellers, (c) for any Lead with whom Fergus or its a liates, distributors, or resellers had substantive contact prior to Partner’s submission of a Referral Status entry in Software for such Lead, (d) if a Lead does not execute a Purchase Agreement with Fergus for the provision of Products within six (6) months after Fergus’s receipt of a Referral Status pertaining to such Lead, (e) if the correct Partner Referral URL is not used, or (f) for the provision of any services or products other than the Software. **7.4 Payment upon Termination.**Subject to this Section 7.0, following termination of this Agreement, Fergus shall pay Partner the Referral Fees for any Qualifying Leads earned on or before the e ective date of termination. Except as provided in this Section 7.4, Fergus shall have no obligation to pay Referral Fees to Partner after the e ective date of termination. **7.5 Expenses.**Partner shall be responsible for all expenses incurred by it in connection with the implementation and performance of its duties and obligations under this Agreement, including, but not limited to: expenses incurred in ful lling its duties and responsibilities as provided in Section 4.0; compensation, bonuses, and bene ts, if any, for its personnel; costs and expenses associated with establishing and maintaining its sales organization and o ces; advertising, Software demonstration, and promotion expenses; and any and all taxes, fees, duties, tari s, or charges which may be imposed on Partner under applicable law. **7.6 Multiple Referrals.**In the event that two or more authorized representatives of Fergus, for any reason whatsoever, claim a Referral Fee for the same Qualifying Lead, Fergus reserves the right to award the Referral Fee to one of the representatives or to divide the Referral Fee among the representatives in such proportions as Fergus shall determine to be equitable, and its decision to do so and the manner in which it does shall be nal and binding on all parties involved. In no case shall the total amount of Referral Fees paid with regard to any such Qualifying Lead exceed the maximum Referral Fee that could be earned if only one representative were responsible for the Qualifying Lead.
8.0 TRADEMARKS, MATERIALS
Subject to the terms and conditions in the Agreement, Fergus hereby grants, and Partner hereby accepts, a non-exclusive, non-transferable, non-sublicenseable, non-assignable, royalty-free license to use any name, logo, tagline, or other designation displayed on any display screen within the Materials (“Fergus Marks”) solely for purposes of marketing the Products to Leads as further described herein; provided, however, that Partner shall provide Fergus with samples of each use of Materials prior to such use and shall refrain from all uses that Fergus informs Partner are detrimental to Fergus’s investment in such Fergus Marks. Products and Collateral (including all components, subsequent versions, modi cations, corrections, and enhancements thereof made available by Fergus hereunder) are deemed “Materials” as de ned in the Agreement.
9.0 OWNERSHIP, PUBLICITY
As agreed between the parties, subject to any license expressly granted by Fergus under this Agreement or an Addendum, Fergus and its suppliers will retain all right, title, and interest in and to the Fergus Marks, Fergus Con dential Information (de ned below), and the Materials, including all modi cations to or derivative works of the foregoing and all intellectual property and proprietary rights incorporated into or related to the foregoing (collectively, “Fergus IP”). All rights not expressly licensed by Fergus under this Agreement are reserved. Partner will not directly or indirectly obtain or attempt to obtain at any time any right, title, or interest by registration or otherwise in or to the Fergus Marks. Partner acknowledges that the goodwill associated with the Fergus Marks belongs exclusively to Fergus and, upon request, Partner will modify or cease its use of any Fergus Marks. Partner will not take any action inconsistent with the terms and conditions of this Agreement. To the extent that Partner obtains any ownership interest in or to any derivative work or modi cation to the Materials, Partner hereby assigns to Fergus all right, title, and interest in and to such derivative works and/or modi cations. Partner hereby grants to Fergus a license to include Partner’s trademarks and service marks on that portion of Fergus’s website that references its partners. Fergus is under no obligation to include or maintain the display of any such marks. Fergus may issue press releases from time to time pertaining to the relationship created by the parties hereunder and/or a particular End User. All content pertaining to such press releases is subject to Partner’s review and approval, not to be unreasonably withheld.
10.0 DISCLAIMER OF WARRANTIES
Any warranties regarding the Materials are made only to End Users who acquire trial licenses or subscription licenses pursuant to the terms and conditions of the Terms of Trade, and no such warranty is extended to Partner. WITH THE EXCEPTION OF ANY EXPRESS WARRANTIES OFFERED BY FERGUS UNDER THIS AGREEMENT OR A SPECIFIC ADDENDUM, ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, ACCURACY, NON-INFRINGEMENT, TITLE, MERCHANTABILITY, AND THOSE THAT MAY ARISE FROM ANY COURSE OF DEALING OR PERFORMANCE, ARE HEREBY DISCLAIMED.
- **11.1 By Fergus.**Fergus will defend any action brought by End Users or other third parties against Partner based on claims, losses, demands, causes of action, and/or judgments (including attorneys’ fees and court costs) (collectively “Claim(s)”) that (a) the Materials (i) infringe or misappropriate any copyright, trademark, moral right, or trade secret or (ii) caused a physical injury to any End User, or (b) Fergus has breached an express warranty to End Users in the Terms of Trade. Fergus will pay any settlement or nal award against Partner based on such Claims unless it is found that the infringement, injury, or warranty breach arises from Partner’s acts or omissions (including any breach of this Agreement by Partner). In such a case, Partner shall pay any settlement or nal award against it and shall reimburse Fergus for all defence expenses.
- **11.2 By Partner.**Partner will defend any action brought by End Users or other third parties based upon Claims arising from (a) Partner’s activities under this Agreement, (b) any unauthorised guarantees or warranties regarding the Materials, (c) any breach of this Agreement, or (d) Partner’s obligations under this Agreement, and Partner will pay any settlement or nal award against Fergus based on the foregoing Claims.
- **11.3 Procedure.**The party seeking indemnity will give the indemnifying party prompt notice of any Claim and provide reasonable assistance to the indemnifying party in the defence of the Claim. Fergus may choose, in its sole discretion, to assume control over any litigation or settlement for any Claim involving the Materials. Further, Partner will not discontinue or settle any claim in a manner that does not unconditionally release Fergus without Fergus’s prior written consent.
- **11.4 Limitation.**Section 11.0 states Partner’s sole and exclusive remedy, and Fergus’s sole and exclusive liability, for any intellectual property infringement.
12.0 LIMITATIONS ON LIABILITY.
EXCEPT WITH RESPECT TO BREACHES OF SECTION 8.0 OR FERGUS’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 6.0 ABOVE, IN NO EVENT SHALL FERGUS BE LIABLE TO PARTNER, END USERS, OR TO ANY THIRD PARTY, WHETHER UNDER THEORY OF CONTRACT, TORT, OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR SPECIAL DAMAGES (INCLUDING ANY DAMAGE TO BUSINESS REPUTATION, LOST PROFITS, OR LOST DATA), WHETHER FORESEEABLE OR NOT AND WHETHER OR NOT FERGUS IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FERGUS’S AGGREGATE CUMULATIVE LIABILITY TO PARTNER, END USERS, AND THIRD PARTIES IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED, REGARDLESS OF WHETHER UNDER THEORY OF CONTRACT, TORT, OR OTHERWISE, THE GREATER OF $5,000.00 OR THE FEES ACTUALLY PAID BY FERGUS TO PARTNER UNDER THE PARTICULAR ADDENDUM TO WHICH SUCH LIABILITY PERTAINS.
The terms of this Section 13.0 shall supersede any separate con dentiality or non-disclosure agreement between the parties.
- 13.1 Defnition.“Con dential Information” means, with respect to a party (the “Disclosing Party”), information that pertains to such party’s business, including, without limitation product roadmaps, performance results, and technical, marketing, nancial, employee, planning, pricing, and other con dential or proprietary information. Con dential Information will be designated and/or marked as con dential when disclosed, provided that any information that the party receiving such information (the “Receiving Party”) knew or should have known, under the circumstances, was considered con dential or proprietary by the Disclosing Party will be considered Con dential Information of the Disclosing Party, even if not designated or marked as such.
- **13.2 Protection.**The Receiving Party shall preserve the con dentiality of the Disclosing Party’s Con dential Information and treat such Con dential Information with at least a reasonable standard of care. The Receiving Party will use the Con dential Information of the Disclosing Party only to exercise rights and perform obligations under this Agreement or any Addenda. Con dential Information of the Disclosing Party will be disclosed only to those employees and contractors of the Receiving Party with a need to know such information.
- **13.3 Exclusions.**The receiving party shall not be liable to the Disclosing Party for the release of Con dential Information if such information: (a) was known to the Receiving Party on or before E ective Date without restriction as to use or disclosure; (b) was in the public domain on or before the E ective Date; (c) came into the public domain after the E ective Date through no fault of the Receiving Party; (d) was independently developed solely by the employees of the Receiving Party who have not had access to Con dential Information; or (d) is divulged pursuant to any legal proceeding or as otherwise required by law, subject to the receiving party giving all reasonable prior notice to the Disclosing Party to allow it to seek protective or other court orders and provided that the Receiving Party uses best e orts to make such disclosure under conditions of con dentiality.
This Agreement shall commence on the Agreement E ective Date and shall remain in e ect until terminated by either party in writing. Termination of the Agreement for any reason shall not a ect obligations that have accrued as of the date of termination. Sections 4.3, 6.0, 7.4, 9.0, 11.0, 12.0 and 13.0 shall survive termination or expiration of the Agreement; otherwise, all rights and obligations of the parties under this Agreement shall terminate upon any such termination or expiration.
15.0 EFFECT OF AGREEMENT
Except as expressly provided in this Agreement, all terms and conditions of the Agreement shall remain in full force and e ect and nothing in this Agreement shall be deemed to waive or modify any of the provisions of the Agreement. In the event of any express con ict between the Agreement and this Agreement, the Agreement shall govern. This Agreement may be amended only by a written document signed by Fergus.