Advisor Partner Terms of Service

1. specifying that breach;
2. requiring that the Second Party remedy that breach within the period specified in the earlier notice (which, in order for that notice to be effective, must be at least 15 Business Days after receipt of the earlier notice); 

                   14.2.2 has committed a material breach of this Agreement, where the breach is not reasonably capable of being remedied within 15 Business Days; 

                   14.2.3 suffers an Insolvency Event; or 

                   14.2.4 is the Partner and the Partner, in the reasonable opinion of Fergus brings, or are likely to bring, Fergus or any of its products or services into disrepute. 

         14.3 Consequences of termination:  Upon and following the expiry or termination of this Agreement for any reason: 

                   14.3.1 the expiry or termination will be without prejudice to either party's rights and remedies in respect of any breach of this Agreement by the other party, where the breach occurred before the termination of this Agreement;  

                   14.3.2 the provisions of intended to survive expiry or termination, will remain in full force and effect; 

                   14.3.3 the Partner must, if requested in writing by Fergus to do so, deliver to Fergus or destroy all copies of all promotional, and other materials, and of all Confidential Information relating solely or predominantly to Fergus’s business, that have been made by the Partner or provided to the Partner, to the extent that these are in the possession or under the control of the Partner at the time of expiry or termination;  

                   14.3.4 the Partner must cease using and must delete from any media on which they are stored, all copies of the Software (to the extent that these are in the possession or under the control of the Partner at the time of expiry or termination); and 

                   14.3.5 the parties shall comply with any other obligations specified in the relevant Partner Engagement Schedule(s) that are applicable on the expiry or termination of this Agreement.   

         15. DISPUTE RESOLUTION 

         15.1 Dispute:  If any dispute or difference arises between the parties, or if any matter or issue arises which any of the parties wishes to have resolved or remedied (Dispute) a party may serve a notice of Dispute on the other (Dispute Notice).  For the purposes of this clause the term “Dispute Notice” means a written notice issued by either party on the other: 

                   15.1.1 specifying reasonable details of the nature of the Dispute; 

                   15.1.2 designating the person with authority to negotiate and settle the matter or issue specified in the notice on behalf of the issuer of the notice; and 

                   15.1.3 requiring the recipient of the notice to enter into negotiations with the issuer of that notice and, for that purpose, to each appoint a representative with authority to negotiate a settlement. 

         15.2 Resolution procedures: Upon service of a Dispute Notice, the following procedures will apply: 

                   15.2.1 No party may commence any court proceedings relating to any Dispute unless that party has complied with the procedure specified in this clause. 

                   15.2.2 Upon the issue of a Dispute Notice the parties enter into negotiations in good faith to resolve a course of action for resolution of the Dispute within 14 Business Days (or such longer period as the parties may agree) of the issue of a Dispute Notice. 

                   15.2.3 Where any course of action for resolution of the Dispute is not resolved via the process above negotiations within 14 days (or such longer period agreed by the parties) of negotiations commencing, the parties will immediately be deemed to have submitted the Dispute to mediation .  Such mediation must be conducted in terms of the Resolution Institute Standard Mediation Agreement.  The mediation must be conducted by a mediator and at a fee agreed by the parties.  Failing agreement by the parties as to appointment of a mediator within seven days of reference to mediation as set out above, the mediatory will be selected and his/her fee determined by the President for the time being of the Resolution Institute (or any suitable replacement organisation). In the event of any submission to mediation: 

1. the mediator will not be acting as an expert or as an arbitrator; 
2. the mediator will determine the procedure and timetable for the mediation; and
3. the parties will share equally the cost of the mediation.

                   15.2.4 Where any course of action for resolution of the Dispute is not resolved via the process above within two months of the Dispute Notice being issued, either party may take court action.

         15.3 Urgent relief:  Nothing in this clause will prevent any party from taking immediate steps to seek urgent interlocutory relief before an appropriate court. 

         16. NOTICES 

         16.1 Details: The respective notice details of the parties as at the date of this Agreement are as specified in the Special Terms. 

         16.2 Method of delivery: Any written notice required under this Agreement must be signed by a duly authorised representative of the party giving that notice and will be deemed validly given if sent by email to the intended recipient's email address as set out above (as updated by written notice from time to time by each party, in respect of the specific details) and if the recipient acknowledges receipt (whether by way of an automated message or otherwise). 

         16.3 Time of delivery: Any notice transmitted by email or delivered after 5.00 pm on a Business Day, or at any time on a non-Business Day, will be deemed received at 9.00 am on the next Business Day (being, in each case, the time of day at the intended place of receipt of that notice). 

         17. GENERAL 

         17.1 Amendments:  No amendment to this Agreement will be effective unless it is in writing and signed by a duly authorised representative of each party. 

         17.2 Assignment:  The Partner will not assign or otherwise transfer any of its rights or obligations under this agreement to any other person without Fergus’s prior written consent.  For the avoidance of doubt, a change of control in respect of the Partner constitutes an assignment by the Partner of its rights or obligations under this Agreement.  

         17.3 Costs:  Unless otherwise stated in this Agreement, each party will bear its own costs and expenses incurred in connection with the negotiation, preparation and implementation of this Agreement. 

         17.4 Entire agreement:  This Agreement records the entire understanding and agreement of the parties relating to the matters dealt with in this Agreement.  This Agreement supersedes all previous understandings or agreements (whether written, oral or both) between the parties relating to these matters. 

         17.5 Further assurances:  Each party will do all things and execute all documents reasonably required to give effect to the provisions and intent of this Agreement. 

         17.6 Force majeure:  Neither party (First Party) will be liable for any act, omission or failure by it under this agreement if that act, omission or failure results directly from an event or circumstances beyond the reasonable control of the First Party, provided that: 

                   17.6.1 whenever the First Party becomes aware that such a result has occurred or is likely to occur, the First Party will notify the other party by written notice accordingly; 

                   17.6.2 each party will continue to use its best endeavours to perform its obligations as required under this Agreement; and 

                   17.6.3 neither party will be deemed to have accepted any liability to pay or share any extra costs which may be incurred by the other party in complying with this clause or otherwise resulting from such act, omission or failure. 

         17.7 Waiver:  No waiver of any breach, or failure to enforce any provision, of this Agreement at any time by either party will in any way affect, limit or waive that party's right to subsequently require strict compliance with this Agreement. 

         17.8 Governing law:  This Agreement is governed in accordance with the laws of New Zealand. The parties irrevocably submit to the non-exclusive jurisdiction of the Courts of New Zealand with respect to any legal action, suit or proceeding or any other matter arising out of or in connection with this Agreement. 

         17.9 Counterparts:  This Agreement may be executed in any number of counterparts (including copies, facsimile copies and scanned email copies) each of which is to be deemed an original, but all of which together are to constitute a binding and enforceable agreement between the parties.  

PARTNER ARRANGEMENT SCHEDULE 1: REFERRAL PARTNER 

The parties acknowledge and agree that these terms are in addition to, and shall not limit in any way, any other terms of this Agreement (including any other Partner Engagement Schedule that applies to the Partner). 

For the purposes of this Partner Engagement Schedule: 

Customer Fees means the net subscription or licence fees paid by the Customer to Fergus for the Fergus Service pursuant to the Fergus Terms and Conditions, minus any refunds made by Fergus to a Customer and any deductions required to be made at law in relation to sales, non-resident withholding or good and services tax (or similar). 

Referral Fee means one-off $250 NZD referral fee per Lead obtained by the Partner three successive monthly subscription invoices must be paid by the individual Fergus end-customers according to the Fergus Terms of Service., as amended by Fergus in accordance with clause 8.2 of the Agreement.  

         1. PARTNER SERVICES 

         1.1 Create an active hyperlink to the Website using the Partner URL provided by Fergus, promptly upon receiving such Partner URL. 

         1.2 Actively and diligently promote and market the Fergus Service to all potential Customers, and use its best endeavours to procure such potential Customers to purchase the Fergus Service.  

         1.3 Diligently follow-up (in good-faith) all leads and develop potential Customers in respect of the Fergus Service. 

         1.4 On request by Fergus, provide Fergus with all relevant information it has regarding each potential Customer and the relevant commercial market.  

         1.5 Provide demonstrations of the Fergus Service to potential Customers, which shall involve performing and displaying the Software in a non-production environment solely for the purpose of demonstrating the Fergus Service to potential leads.  

         1.6 Notify the Customer immediately upon receiving a request from a prospective Customer to view a demonstration of the Fergus Service. 

         1.7 Provide potential Customers with access to the Fergus Service, for the purposes of purchasing a subscription to the Fergus Service, via the Partner URL. 

         1.8 Regularly (and no less than once a month) provide an update to Fergus (either in person, via email, or via phone as mutually agreed at the time) on current campaigns and opportunities. 

         1.9 Maintain adequate documentation supplied by Fergus and other equipment necessary to market the Fergus Service and comply with its obligations under this Agreement. 

         2. FERGUS OBLIGATIONS 

         2.1 Promptly following entry into this Agreement by the parties, provide the Partner with the Partner URL. 

         2.2 Provide the Partner with access to the Platform as required by the Partner to perform the Partner Services. 

         2.3 Provide the Partner with access to a Fergus representative to provide guidance on the Fergus Service and the processes to be followed by the Partner.    

         2.4 Create events and programs that help the Partner (together with other Fergus partners) to connect and start to build better solutions that provide more value for customers. 

         2.5 Within 10 Business Days of the end of each month, Fergus shall provide the Partner with a report detailing the Customers (if any) that have activated a Fergus account during the previous month. 

         2.6 Subject to compliance by the Partner with the terms of this Agreement, provide the Partner with the Partner Benefits specified in paragraph 3 of this Schedule 1. 

         3. PARTNER BENEFITS 

         3.1 The following Partner Benefits shall be available to the Referrer Partner, subject to any review undertaken in accordance with clause 8.2 of the Agreement: 

                   3.1.1 Fergus shall pay the Referral Fees to the Partner in accordance with paragraphs 3.2 to 3.4 of this Schedule 1, and otherwise in accordance with clause 8 of the Agreement.  

                   3.1.2 Where there has been prior written agreement between the parties for a specific event, Fergus may participate in and co-promote the Partner’s events,; 

                   3.1.3 Fergus shall include a reference to the Partner on the Website; 

                   3.1.4 Fergus may, in its discretion, send messages to its customers regarding the services and/or offers provided by the Partner. 

         3.2 Fergus will, within 10 Business Days after the end of each month (EOM Report) issue the Partner a report showing the Referral Fees payable to the Partner for the previous month.   

         3.3 To the extent that any of the above information relies upon the Partner supplying information, the Partner must do so promptly and as reasonably required by Fergus.  

         3.4 The Partner will, after receipt of each EOM Report, invoice Fergus for the Referral Fees for that month based on the EOM Report and Fergus shall pay the Partner the amount payable under each invoice by the 20th of the month following the month of invoice. 

         3.5 To be eligible for a Referral Fee, you must have a signed current Fergus partnership agreement and have your partnership referral code entered into Fergus Software when the Fergus prospective Customer signs up for a Fergus trial.    

         3.6 The Referral Fee will be payable by Fergus to you in respect of a new Customer only after the Customer has paid three full (3) successive subscription invoices.  

         3.7 If two or more authorized partners of Fergus, for any reason whatsoever, claim a Referral Fee for the same Customer, Fergus may (in its sole discretion) allocate the Referral Fee between such representatives in such proportions and in such manner as Fergus determines is equitable (in its discretion). Any such allocation made by Fergus shall be final and binding on all parties. 

         3.8 The Referral Fee is the only amount payable by Fergus to the Partner in connection with the Partner services, and the Partner shall be responsible for all costs and expenses and taxes it incurs in connection with the Partner Services and otherwise fulfilling its obligations under this Agreement. 

         3.9 Fergus will not be obliged to pay any Referral Fees and may terminate its obligation to pay any outstanding Referral Fees, and/or disable any Referral Code immediately if you are suspected by Fergus (acting reasonably) to have:  

• been fraudulent or engaged in a scam; or 
• intentionally provided to Fergus any incorrect or misleading information about a New Customer or acted dishonestly in any other way; or 
• the New Customer is in breach of the Agreement or Fergus’ Terms of Service 

         3.10 Fergus will not be obliged to pay Referral Fees if:  

• the new Customer is a current customer or was previously a customer within the last 12 months of Fergus or its affiliates, partners, distributors, or resellers; 
• Fergus or its affiliates, partners, distributors, or resellers has had substantive contact with the Customer prior to it becoming a Customer;  
  
• the correct Partner Referral Code is not used; or  
  
• the provision of any services or products other than the Software results from the referral.  

         4. OTHER TERMS 

         4.1 Upon termination of this Agreement: 

If the Agreement is terminated by Fergus pursuant to clause 14.2 of the Agreement or by the Partner pursuant to clause 14.1 of the Agreement, Fergus’ obligation to pay Referral Fees shall end on the effective date of such termination, provided that Fergus shall pay all Referral Fees incurred prior to the effective date of termination. 

                   4.1.1 If the Agreement is terminated for any other reason, Fergus’ obligation to pay the Referral fees shall, in respect of each Customer, continue until 3 months following the effective date of termination or expiry of this Agreement. 

                   4.1.2 The Partner acknowledges that Fergus may, in its sole discretion, either accept or decline any potential Customer referred by the Partner.  

PARTNER ENGAGEMENT SCHEDULE 2: ADVISOR PARTNER 

The parties acknowledge and agree that these terms are in addition to, and shall not limit in any way, any other terms of this Agreement (including any other Partner Engagement Schedule that applies to the Partner).  

         1. PARTNER SERVICES 

         1.1 Ensure that its personnel undertake all training and accreditation activities notified by Fergus from time to time. 

         1.2 Use all reasonable endeavours to ensure its personnel have (and maintain) a deep understanding of the Fergus Service features, use cases and configuration. 

         1.3 Ensure its personnel are able to train Fergus customers on how to setup and use Fergus in their day-to-day activities. 

         1.4 Ensure its personnel have good knowledge of the relevant market and continually evolve with the market.  

         1.5 Regularly attend events (including those notified by Fergus from time to time) and connect with other partners to ensure that the Partner’s services, solutions and products are relevant and up to date; 

         1.6 Attend an annual re-accreditation meeting with Fergus to ensure the Partner’s knowledge of the Fergus Service is current. 

        2. FERGUS OBLIGATIONS 

         2.1 Provide the Partner with access to the Platform as required by the Partner to perform the Partner Services. 

         2.2 Provide the Partner with access to a Fergus representative to provide guidance on the Fergus Service and the processes to be followed by the Partner.    

         2.3 Provide the Partner with advanced training on how to implement the Fergus Service and train others (as an expert). 

         2.4 Subject to satisfactory completion of all required training activities, provide the Partner with confirmation of its accreditation as an ‘Accredited Fergus Advisor’. 

         2.5 Subject to compliance by the Partner with the terms of this Agreement, provide the Partner with the Partner Benefits specified in paragraph 3 of this Schedule 2. 

        3. PARTNER BENEFITS 

         3.1 Fergus shall use its reasonable endeavours to provide the Partner with leads for businesses needing assistance with job management software and/or broader business management support and advice. 

         3.2 The Partner may use the ‘Accredited Fergus Advisor’ logo in its marketing materials, provided such use is in accordance with all applicable Fergus branding guidelines (as notified by Fergus from time to time) to differentiate itself from other advisors / consultants). 

         3.3 Access to advanced training from Fergus. 

         3.4 As an Accredited Fergus Advisor, the Partner may provide setup, training and advisory services specific to implementing and supporting the Fergus Service, and retain any revenue earned from the provision of such services.  

       4. OTHER TERMS