Terms of Service

Referral Partner Terms of Agreement

Last updated: 19 May 2020

On 19 May 2020, this Agreement was updated in replacement of the 15 January 2020 version of this Agreement.

By applying for registration into the Fergus Referral Partner Program, and enjoy the benefits of the Fergus Referral Partner Program, you are accepting and agreeing to the terms and conditions set out in this Agreement.

Fergus may update or modify this Agreement from time to time in its sole discretion. All updates and modifications to this Agreement will take effect upon being published on Fergus’ website. All updates and modifications will also communicated via email to the email address on record at that time.

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

Fergus will determine whether you are accepted to the Fergus Referral Partner Program once the prerequisites above have been completed. Fergus reserves the right to accept or decline any organisation or individual as a Partner regardless of whether the prerequisites have been met, for example if Fergus determines that you are likely to be unable to meet the requirements set out in this Agreement.

Partner Benefits

Once you have been accepted to, and as long as you remain part of, the Fergus Referral Partner Program, you will receive 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;
  • receipt and use of a Referral URL (or Referral URLs); and
  • eligibility to be paid Referral Fees,

in accordance with this Agreement.

Ongoing Partner Requirements

To maintain partnership status, you agree 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;
  • not charge for Fergus training or onboarding;
  • not take part in any fraudulent behaviour or otherwise abuse the intended purpose of this Agreement.
Further Terms

By entering into the Agreement, the Partner confirms that it has the requisite authority, power and right to enter into this Agreement either as an individual or as an entity.

1.0 SCOPE OF AGREEMENT

The Partner may refer third parties (each a “Lead”) to Fergus for purposes of acquiring the Fergus software products (“Software”) and services (collectively the “Products”) in accordance with this Agreement. The Partner will be compensated for purchases by Leads in the manner set out in this Agreement.

2.0 APPOINTMENT AND AUTHORITY
2.1 Non-exclusive Appointment.

The Partner is appointed as Fergus’s non-exclusive referral and training representative under the terms and conditions of this Agreement. The Partner will have the right to promote to, discuss with, and train Leads in respect of those Products authorised in advance by Fergus in writing. Fergus will have the right to update such authorised Products upon written notice to Partner.

2.2 Description of Authority.

Partner’s authority under this Agreement shall be limited to:

  1. providing Leads to Fergus for the purpose of Fergus soliciting subscriptions for the Products;
  2. providing descriptions and information about the Products to potential Leads in accordance with the provisions of this Agreement;
  3. demonstrating the Products in accordance with Section 3.0;
  4. training Leads in their use of the Products in accordance with Section 3.0; and
  5. performing the tasks listed in Section 4.0 or such other tasks as the parties shall mutually agree upon.

The Partner is not an agent of Fergus and shall not have the authority to make any commitments, enter into 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 the Partner.

2.3 Collateral.

The Partner shall have the authority to provide Leads with a high-level product description, sales and marketing brochures, and other collateral material supplied to the Partner by Fergus or specifically approved by Fergus in writing (“Collateral”). The Partner may not alter the Collateral in any way.

The Partner must opt-in to receiving Collateral from Fergus.

3.0 DEMONSTRATION OF SOFTWARE

The Partner shall have the authority to provide demonstrations of the Software in accordance with this Section 3.0.

Subject to this Agreement, Fergus grants to the Partner a non-exclusive, non-sublicensable, non-transferable, revocable and royalty-free limited license to demonstrate the Software in a non-production environment to potential Leads.

The Partner shall not use the Software except as explicitly provided under this Section 3.0. Furthermore, the Partner shall not directly or indirectly use or otherwise exploit the Products under this Agreement for its own general internal use or for commercial exploitation.

The Partner shall not make any 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 in this Agreement, the Partner may not:

  1. use;
  2. modify;
  3. reproduce;
  4. sublicense; or
  5. distribute or otherwise provide to third parties,

the Software, in whole or in part.

The 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.

Fergus will provide each Partner with a unique Referral URL. The Partner shall supply each Lead with their Referral URL as appropriate. Fergus may update the Referral URL and Referral Fee applicable to that Referral URL from time to time in its sole discretion by issuing a new URL to Partners. Fergus may disable the Referral URL from time to time in its sole discretion, with or without prior notice.

4.2 Information.

Upon Fergus’ request, the Partner:

  1. shall discuss each Lead in detail with Fergus and shall provide Fergus with all relevant non-confidential information it has regarding each Lead; and
  2. 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.

The Partner shall not make representations or guarantees concerning Products, nor accept the return of or make any allowance for such Products.

4.4 Compliance with Policies.

The Partner shall abide by all current applicable Fergus policies and procedures as communicated to the Partner by Fergus.

4.5 Further Assistance.

The Partner shall provide other assistance as reasonably requested by Fergus from time to time.

4.6 Provision of Training.

The Partner may provide the Lead with free Software training programs. For clarity, the Partner may not charge any training fee.

4.7 Marketing Materials.

The Partner will abide by Fergus Brand Guidelines at all times. Any additional materials relating to Fergus produced by Partner 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 the Partner to perform its duties and obligations under this Agreement.

5.2 Demonstration.

Fergus shall provide a demonstration of the Software to the Partner’s personnel at a time and location mutually agreed upon by the parties.

5.3 Acceptance.

Fergus reserves the right to accept or decline any Lead submitted by Partner. An accepted 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 customer survey responses, observation of the Partner in action, or from Fergus direct customer interaction, or other such feedback Fergus deems necessary.

6.0 TERMS OF SALE

Fergus shall offer the Products to Qualifying Leads on terms and conditions pursuant to and in accordance with Fergus’:

  1. standard agreement (made available to the Partner upon request);
  2. current terms of trade; and
  3. any changes agreed to by the parties,

(together, the “Purchase Agreement”).

The Partner shall not negotiate nor offer to negotiate any terms of the Purchase Agreement on behalf of Fergus.

7.0 PAYMENT TERMS
7.1 Referral Fee.

Subject to this Agreement, for each Qualifying Lead that purchases Software from Fergus under a Purchase Agreement, Fergus shall pay Partner a referral fee as set out below for the period described in Section 7.4.

An alternative referral fee may be agreed to be the parties in writing for a specific potential Lead.

“Referral Fee” means a one-off fee of any amount decided by Fergus and communicated to the Partner from time to time through the Fergus website or the provision of a new Referral URL to the Partner.

The Partner will receive no consideration for any:

  1. services, support, or other fees collected by Fergus; or
  2. fees of any kind related to Software licensing revenue after the period described in Section 7.4.

Except as provided for in this Agreement, the Partner shall not be entitled to any fees or payments by Fergus with respect to such Qualifying Lead, regardless of:

  1. the terms of the Purchase Agreement between Fergus and such Qualifying Lead;
  2. any renewal of the Purchase Agreement between Fergus and such Qualifying Lead; or
  3. whether Fergus enters into subsequent agreements with such Qualifying Lead.

If this Agreement is terminated by Fergus following a material breach of this Agreement by the Partner, no Referral Fees will be payable following that material breach.

7.2 Payment Terms.

At the end of each calendar month the Partner shall send Fergus an invoice for the Referral Fees earned that 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.

The Referral Fee will be payable by Fergus to Partner only after the relevant Qualifying Lead has paid three (3) successive subscription invoices, and no later than the 20th day of the following month after the relevant Qualifying Lead has paid three (3) successive subscription invoices.

There are no limits on Qualifying Leads a Partner may refer in good faith and within the spirit of the Fergus Referral Partner Program.

Each Referral Fee cannot be used with any other offer.

All Referral Fees shall be paid in New Zealand Dollars.

7.3 Exceptions.

Fergus will not be obliged to pay any Referral Fees and may terminate its obligation to pay any outstanding Referral Fees, this Agreement, and/or any Referral URL immediately if the Partner:

  1. is suspected by Fergus (acting reasonably) to have been fraudulent or engaged in a scam; or
  2. intentionally provides to Fergus any incorrect or misleading information about the Lead or acts dishonestly in any other way.

Fergus will not be obliged to pay Referral Fees if:

  1. the Lead is a current customer or was previously a customer of Fergus or its affiliates, distributors, or resellers;
  2. Fergus or its affiliates, distributors, or resellers has had substantive contact with the Lead prior to the Partner’s submission of the Referral Status;
  3. 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;
  4. the correct Partner Referral URL is not used; or
  5. the provision of any services or products other than the Software results from the referral.
7.4 Duration of Payments.

Subject to Section 7.2, Fergus shall pay the Partner the Referral Fees specified in this 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.

The Partner shall be responsible for (and indemnifies Fergus in respect of) all expenses incurred by it in connection with this Agreement, including, but not limited to:

  1. expenses incurred in fulfilling its duties and responsibilities as provided in Section 4.0;
  2. compensation, bonuses, and benefits, if any, for its personnel;
  3. costs and expenses associated with establishing and maintaining its sales organization and offices;
  4. advertising, Software demonstration, and promotion expenses; and
  5. 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 Partners claim a Referral Fee for the same Qualifying Lead, Fergus reserves the right to:

  1. award the Referral Fee to one of the Partners; or
  2. divide the Referral Fee among the Partners in such manner as Fergus determines is equitable.

Such determination shall be final and binding on all parties involved.

In no case shall the Referral Fee sum paid to Partners in respect of any one 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 this Agreement, Fergus hereby grants the Partner 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.

Prior to each use of the Materials, the Partner shall provide Fergus with samples of the use, and shall refrain from all uses that Fergus decides in its sole discretion are undesirable.

“Materials”, as defined in this Agreement, includes Products and Collateral (including all components, subsequent versions, modifications, corrections, and enhancements thereof made available by Fergus under this Agreement).

9.0 OWNERSHIP, PUBLICITY

Fergus and its suppliers, subject to any license expressly granted by Fergus under this Agreement or an Addendum, will retain all right, title, and interest in and to the:

  1. Fergus Marks;
  2. Fergus Confidential Information; and
  3. 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 (together, the “Fergus IP”).

All rights not expressly licensed by Fergus under this Agreement are reserved.

The Partner will not directly or indirectly obtain or attempt to obtain any right, title, or interest by registration or otherwise in or to the Fergus Marks. 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.

The Partner will not take any action inconsistent with the terms and conditions of this Agreement.

If the Partner obtains any ownership interest in or to any derivative work or modification to the Materials, the Partner irrevocably assigns to Fergus all rights, title, and interest in such derivative works and/or modifications.

The Partner grants a licence to Fergus to include the 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 pertaining to the relationship created by the parties to this Agreement and/or a particular End User. Such press releases are subject to the Partner’s review and approval, which is not to be unreasonably withheld.

10.0 DISCLAIMER OF WARRANTIES

Any warranties regarding the Materials are made only to End Users who enter into a Purchase Agreement with Fergus. No warranties are extended to the Partner.

With the exception of any express warranties offered by Fergus under this Agreement or a specific Addendum, all other warranties, including, but without limitation to, the warranties of:

  1. fitness for a particular purpose;
  2. quiet enjoyment;
  3. accuracy;
  4. non-infringement;
  5. title;
  6. merchantability; and
  7. those that may arise from any course of dealing or performance,

are 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 solicitors’ fees and court costs) (collectively “Claim(s)”) that:

the Materials:

  1. infringe or misappropriate any copyright, trademark, moral right, or trade secret or;
  2. caused a physical injury to any End User; or
  3. Fergus has breached an express warranty to End Users in the Terms of Trade.

Fergus will pay any settlement or final award against the Partner based on such Claims unless it is found that the breach arises from Partner’s acts or omissions (including any breach of this Agreement by the Partner). In such a case, the Partner shall pay any settlement or final award against it and shall reimburse Fergus for all defence expenses.

11.2 By Partner.

The Partner will defend, and indemnifies Fergus in respect of, any action brought by End Users or other third parties based upon Claims arising from:

  1. the Partner’s activities under this Agreement;
  2. any unauthorised guarantees or warranties regarding the Materials;
  3. any breach of this Agreement; or
  4. the Partner’s obligations under this Agreement,

and the 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, in its sole discretion, assume control over any litigation or settlement for any Claim involving the Materials. Furthermore, the 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 the Partner’s sole and exclusive remedy, and Fergus’s sole and exclusive liability, for any intellectual property infringement.

12.0 LIMITATIONS ON LIABILITY

Fergus shall not be liable to the Partner, End Users, or to any other 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 total liability to the Partner, End Users, and third parties in connection with this agreement shall not exceed the greater of:

  1. $5,000.00; or
  2. 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 information that pertains to a party’s (the “Disclosing Party”) business, including, without limitation to:

  1. product roadmaps;
  2. performance results;
  3. technical, marketing, financial, employee, planning, pricing; and
  4. other confidential or proprietary information.

Confidential Information will be designated and/or marked as confidential when disclosed to the party receiving such information (the “Receiving Party”).

Any non-designated/marked Confidential Information disclosed to the Receiving Party that the Receiving Party knew or should have known, under the circumstances, to be confidential or proprietary to the Disclosing Party will be considered Confidential Information.

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 only to exercise rights and perform obligations under this Agreement or any Addenda. Confidential Information will be disclosed only to those employees and contractors of the Receiving Party who 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:

  1. was known to the Receiving Party on or before Effective Date without restrictions on use or disclosure;
  2. was in the public domain on or before the Effective Date;
  3. came into the public domain after the Effective Date through no fault of the Receiving Party;
  4. was independently developed solely by the employees of the Receiving Party who have not had access to Confidential Information; or
  5. is released pursuant to any legal proceeding or as otherwise required by law.

The Receiving Party is only covered by the exception contained in (e) if the Receiving Party gives 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 ENTIRE AGREEMENT

This Agreement, and the documents referred to in this Agreement, constitutes the entire agreement between the parties in relation to the Fergus Referral Partner Program and supersedes all prior understandings, agreement, representations and correspondence between the parties.