Referral Partner Terms of Agreement

Terms and Conditions 2020

Prerequisites

  • Fill out the partner application form
  • Read and accept the Partner Referral Terms of Agreement
  • Have at least one staff member commit to becoming Fergus trained
  • Complete the qualification phone call with Fergus and receive a welcome pack

Partner Agreement

FERGUS AGREES TO PROVIDE THE PARTNER

Access to all the benefits of the Fergus Referral Partner Program, including:

  • Access to Partner-only information and support from the Fergus Referral Partner Support Team

TO MAINTAIN PARTNERSHIP STATUS, THE PARTNER AGREES TO

Actively promote Fergus to clients

  • Ensure that at least one staff member is Fergus trained
  • Promote Fergus on your website, maintaining an active hyperlink to www.fergus.com and adhering to the Fergus Brand Guidelines including not using the name Fergus in the company name, product name, service offering, or URL
  • Offer clients value-added services that feature and include Fergus Software
  • The partner cannot charge for Fergus training or onboarding
  • The partner agrees not to take part in any fraudulent behaviour, if found guilty of this the partnership will be terminated

DURATION OF THE AGREEMENT

Once the Partner Application Form has been completed, this agreement will remain in place until superseded or terminated by either party.

DISPUTES AND TERMINATION OF THE AGREEMENT

Either party may terminate this agreement for any reason, giving notice of one month. Fergus reserves the right to accept or decline any organisation or individual becoming a Fergus Referral Partner. Fergus also reserves the right to terminate its relationship with any existing Partner at any time.

BILLING AND STATUS

To qualify for the one-off $250 (AUD if the end-customers primary activity is located in Australia, otherwise NZD, plus GST where Partner is GST registered) 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.

The Partner must nominate and advise Fergus who, within the practice, will be responsible for all matters relating to the financial terms of this agreement. Fergus will inform the Partner of their Referral Fee entitlements, in any, on a monthly a basis. The Partner must provide an invoice to Fergus for the total eligible Referral Fee within 30 days from receiving notice of entitlement or all past referral feed entitlements are void.

The Partner agrees to adhere to the Fergus subscription and payment fees and terms.

Full Terms of Agreement

BY AGREEING TO THE TERMS AND CONDITIONS SET FORTH HEREIN, YOU SUBMIT TO FERGUS 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 to, discuss with, and train Leads in respect of 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;

© 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 is not an agent of Fergus and 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 specifically approved by Fergus in writing (“Collateral”). Partner shall have no right to make any changes, additions, or other modifications to such Collateral.

In order to receive Collateral, the Partner must opt-in to receiving marketing communications from Fergus.

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 non-exclusive, 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 supply each Lead with their Fergus provided Referral URL as appropriate. Fergus may update the 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-confidential 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 effect 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 not charge a Training Fee.

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 intends to provide regular feedback to the Partner regarding their performance. This may 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 offer 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 offer 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 a referral fee equivalent to the applicable Fee set out below (or any alternative referral fee agreed by the parties in writing for a specific potential Lead) for the period described in Section 7.4 (“Referral Fee”).

Fee: One-off fee of NZD$250 (New Zealand Dollars)

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 period described in Section 7.4.

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; or

(b) any renewal of the Purchase Agreement between Fergus and such Qualifying Lead; or

© whether Fergus enters into subsequent agreements with such Qualifying Lead.

This Agreement may be terminated by Fergus following a material breach of this Agreement by Partner in which case no Referral Fees will be payable following that material breach.

7.2 Payment Terms.

Fergus shall pay to Partner the Referral Fees earned by Partner pursuant to this Section 7.0 on a monthly basis based on an invoice received from the Partner reflecting the Partner’s Referral Fee entitlement. The Referral Fee entitlement is based on payment received by Fergus for of the related Software subscription fees from each Qualifying Lead.

The Referral Fee will be payable by Fergus to Partner only after each Qualifying Lead has paid three (3) successive subscription invoices.

There are no limits on Qualifying Leads a Partner may refer.

Each Referral Fee cannot be used with any other offer.

At the end of each calendar month the Partner should send Fergus an invoice for the Referral Fees earned and may be paid no later than the 20th of the following month. Invoices should be sent to accounts@fergus.com and should contain the name of each Qualifying Lead. Tracking the name of each Qualifying Lead is the responsibility of the Partner.

All Referral Fees shall be paid in New Zealand Dollars.

7.3 Exceptions.

No Referral Fees shall be paid if:

(a) Partner is found to be fraudulent; or

(b) Partner provides to Fergus any incorrect or misleading information about the Lead; or

© for any Lead that is a then-current customer or was previously a customer of Fergus or its affiliates, distributors, or resellers; or

(d) for any Lead with whom Fergus or its affiliates, distributors, or resellers had substantive contact prior to Partner’s submission of a Referral Status entry in Software for such Lead; or

(e) 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; or

(f) if the correct Partner Referral URL is not used; or

(g) for the provision of any services or products other than the Software.

7.4 Duration of Payments.

Fergus shall pay Partner the Referral Fees specified in Section 7.0 in respect of all Qualifying Leads who become subscription paying customers of Fergus during the term of this Agreement. This is a one-off fee and as such there may be no further payments beyond the one-off Referral Fee.

7.5 Expenses.

Partner shall be responsible for (and indemnifies Fergus in respect of ) 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 fulfilling its duties and responsibilities as provided in Section 4.0; compensation, bonuses, and benefits, if any, for its personnel; costs and expenses associated with establishing and maintaining its sales organization and offices; advertising, Software demonstration, and promotion expenses; and any and all taxes, fees, duties, tariffs, 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 and in such manner as Fergus determines is equitable (in its discretion), and such determination shall be final and binding on all parties involved. In no case shall the total amount of Referral Fees paid to Partner and any other representatives in respect of 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, modifications, corrections, and enhancements thereof made available by Fergus hereunder) are deemed “Materials” as defined 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 Confidential Information (defined below), and the Materials, including all modifications 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 all Fergus IP belongs exclusively to Fergus and, upon request, Partner will modify or cease its use of any Fergus IP. 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 modification to the Materials, Partner hereby assigns to Fergus (for nil consideration) all right, title, and interest in and to such derivative works and/or modifications. 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.

11.0 INDEMNIFICATION

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 final 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 final award against it and shall reimburse Fergus for all defence expenses.

11.2 By Partner.

Partner will defend, and indemnifies Fergus in respect of, 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, © any breach of this Agreement, or (d) Partner’s obligations under this Agreement, and Partner will pay any settlement or final 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

In no event shall Fergus be liable to Partner, end-users, or to any third party, whether under 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 the greater of $5,000.00 or an amount equivalent to the fees actually payable by Fergus to Partner in respect of the 3 months period preceding any claim.

13.0 CONFIDENTIALITY

The terms of this Section 13.0 shall supersede any separate confidentiality or non-disclosure agreement between the parties.

13.1 Definition.

“Confidential 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, financial, employee, planning, pricing, and other confidential or proprietary information. Confidential Information will be designated and/or marked as confidential 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 confidential or proprietary by the Disclosing Party will be considered Confidential Information of the Disclosing Party, even if not designated or marked as such.

13.2 Protection.

The Receiving Party shall preserve the confidentiality of the Disclosing Party’s Confidential Information and treat such Confidential Information with at least a reasonable standard of care. The Receiving Party will use the Confidential Information of the Disclosing Party only to exercise rights and perform obligations under this Agreement or any Addenda. Confidential 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 Confidential Information if such information: (a) was known to the Receiving Party on or before Effective Date without restriction as to use or disclosure; (b) was in the public domain on or before the Effective Date; © came into the public domain after the Effective 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 Confidential 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 efforts to make such disclosure under conditions of confidentiality.

14.0 TERM

This Agreement shall commence on the date Fergus notifies Partner that Partner has been appointed as a referral partner and shall remain in effect until terminated by either party in writing. Termination of the Agreement for any reason shall not affect obligations that have accrued as of the date of termination.

15.0 EFFECT OF AGREEMENT

This Agreement and the documents referred to in this Agreement constitute the entire understanding and agreement between the parties relating to the matters dealt with in this agreement and supersede all prior understandings, agreements, representations and correspondence between the parties. This Agreement may be amended only by a written document signed by Fergus.