Fellow Ambassador and Referral Program Agreement
Last Updated: Sep 27, 2023
These Terms and Conditions (the “Agreement“) form a legal agreement between Fellow Insights, Inc. a Canadian corporation, having a principal place of business at 275-532 Montreal Road, Ottawa, ON, K1K 4R4 (“Fellow,” “we,” or “us”) and the individual or organization agreeing to the terms of this Agreement (“Ambassador,” “you,” or “your”), on behalf of themselves and their Affiliates, (each a “Party” and collectively the “Parties”). Your participation in the Fellow Ambassador and Referral Program (the “Program”) confirms you agree to the terms of this Agreement.
Fellow may update or modify this Agreement or any referenced policies or documents in its sole discretion from time to time. By continuing to participate in the Program, you accept any modifications we make to this Agreement. Program benefits are subject to change or termination in Fellow’s sole discretion. If you do not agree to changes to the Agreement or the Program, you must stop participating in the Program.
To participate in the Program, you must first enroll by completing the application and questions on the Fellow website, available at: https://fellow.app/partners/ambassadors/ and fulfill the participation qualifications as stated by Fellow in section 3 below.
By participating in the Program, including but not limited to posting or sharing a Fellow Referral Link, defined below, you indicate your agreement to be bound by the terms of this Agreement.
Thereafter the Agreement shall become effective as of the date you participated in the Fellow Program or the date which you have clicked through this Agreement, whichever is earlier (the “Effective Date”).
1. DEFINITIONS
1.1 “Activation” or “Activated” occurs when a Prospective Customer uses your Referral Link to sign up for a Business Workspace, invites another new User to their new Business Workspace and this new User joins the new Business Workspace.
1.2 “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.
1.3 “Authorized Territory” means worldwide, including Canada, excluding the province of Quebec, and United States of America, and excluding any country currently or recently under Canadian or United States sanctions lists, subject to section 12.5, and unless otherwise stated in writing by Fellow.
1.4 “Business Workspace” means a Fellow Workspace created with a business email address.
1.5 “Control,” for purposes of this definition, means either: (a) ownership or control of more than 50% of the voting interests of the subject entity; or (b) the power to direct or cause the direction of the management and policies of an entity, whether through ownership, by contract, or otherwise.
1.6. “Close Family Member” means a spouse, an individual’s and a spouse’s grandparents, parents, siblings, children, nieces, nephews, aunts, uncles, first cousins, the spouse of any of these people, or any other individuals who share the same household.
1.7. “Customer” means a User that has purchased a Subscription (as further defined below) to the Fellow Product.
1.8. “Customer Data” means information submitted by Customers, Prospective Customers or Users through the Fellow Product.
1.9. “Disqualified Referral” means a Prospective Customer that (a) is currently or previously was a User of the Fellow Product, (b) was previously registered or sourced as a Prospective Customer by another ambassador of the Program, or through another Fellow marketing or distribution channel, (c) is identified as a Prospective Customer by Fellow’s sales team, (d) Fellow is prohibited by law from doing business with, or (e) Fellow declines to accept as a lead or referral for any reason. A lead or referral may be deemed a Disqualified Referral at any time in Fellow’s sole discretion.
1.10. “Documentation” means Fellow’s then-current online resources available at https://help.fellow.app/, as updated from time to time, and as may be made accessible from within the “Help” feature of the Fellow Product.
1.11. “Eligible Referral” means a Prospective Customer that is not a Disqualified Referral and payment must be collected while you are a member in good standing under the Program. A Prospective Customer may be deemed an Eligible Referral at any time in Fellow’s sole discretion.
1.12. “Fellow Product” means Fellow’s meeting management software as a service platform.
1.13. “Fellow Workspace” means a specific portion of the Fellow Product accessed by a domain name that connects the specific portion of the Fellow Product to the Prospective Customer.
1.14. “Government Official” means anyone that is or that works for, or on behalf of, a: (i) national, regional, municipal, or local government; (ii) department, agency, subsidiary, or branch of a national, regional, municipal, or local government; (iii) government-owned or government-controlled company (for example, a state-owned oil company, bank, airline, hospital, university, etc.); (iv) subsidiary of a government-owned or government-controlled company; (v) public international organization (for example, the International Monetary Fund, the United Nations, the World Bank, the World Trade Organization, etc.); (vi) member of a royal family; or (vii) political party, political party official, or candidate for political office.
1.15. “Subscription Term” means the Subscription period specified in the Sales Contract during which the applicable Customer may use the Fellow Product, subject to the Terms of Use.
1.16. “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
1.17. “Prospective Customer” means an individual or organization that could become a User or a Customer who does not already have an existing relationship with Fellow.
1.18. “Referral Link” means a link provided to you by Fellow that directs to a page on the Fellow website where a Prospective Customer can complete a Signup that will be identifiable as a referral made by you through the Program.
1.19. “Sales Contract” means an ordering document for a paid Subscription for the Fellow Product that is referred to Fellow by you through your Referral Link, is entered into between Customer and Fellow (or Affiliates of either party), incorporates Terms of Use by reference, demonstrates the Customer’s purchase of a Fellow Subscription, and is either: (a) submitted by Customer to Fellow via Fellow Product, or (b) signed by Customer and Fellow.
1.20. “Signup” means a Prospective Customer’s creation of a new Business Workspace.
1.21. “Subscription” means access to the Fellow Product acquired by Customer, including but not limited to entering into a Sales Contract.
1.22. “Subscription Fee Revenues” means the fees paid to Fellow by the Eligible Referral for the Subscription Term of the Eligible Referral’s Subscription to the Fellow Product, excluding (a) costs attributable to sales, use, value-added, excise and other taxes, customs duties and other governmental charges, (b) any origination and transaction-related fees charged by third parties, and (c) returns or credits. Subscription Fee Revenues do not include fees paid for professional, consulting or training services, or any amounts that have not actually been received by Fellow.
1.23. “Terms of Use” means the agreement governing use of the Fellow Product as stated on the Fellow website available at the following link https://fellow.app/terms-of-use/.
1.24. “User” means an end-user of the Fellow Product that has agreed to be bound by the Terms of Use but has not purchased a Subscription to the Fellow Product.
2. PURPOSE
2.1. The Fellow Ambassador and Referral Program is designed to provide Users of Fellow, with an opportunity to promote the Fellow Product to Prospective Customers.
2.2. To participate in the program, as a Fellow Ambassador, you must: (a) be at least the age of majority in your country of residence (usually 18 years), and by entering into this Agreement you certify to Fellow that you are at least the age of majority where you live; (b) not be an officer, director, member, contractor or employee of Fellow; and (c) not be an immediate family member of a Fellow employee or any other party associated with the development or administration of this partnership, or persons residing in the same household, as such individuals.
3. SCOPE OF AMABASSADOR APPOINTMENT AND AMBASSADOR OBLIGATIONS
3.1. Non-Exclusive Appointment. Subject to your compliance with the Program, Fellow appoints you as a non-exclusive referrer of the Fellow Product in the Authorized Territory, and you accept such appointment. Fellow expressly reserves the right to market, promote, support, implement, and sell the Fellow Product to Prospective Customers, Users, or Customers either directly or indirectly, through other Fellow Ambassadors, referrers, distributors, resellers and/or other channels. Other than the rights explicitly granted in this Agreement, you have no other rights in or to the Fellow Product, including no rights to lease, rent, or in any other way make the Fellow Product available to others. Without limiting the foregoing, you acknowledge and agree that Fellow may offer products and services that compete with products and services you offer, including to Prospective Customers, Users, or Customers who are introduced to Fellow by you.
3.2. Scope of Appointment. You shall promote the Fellow Product to Prospective Users and Customers using the Referral Link Provided.
3.3. Disclosing Your Connection With Fellow. If you post about Fellow or the Fellow Product on social media or refer Prospective Customers to Fellow through the Program, you must disclose clearly and conspicuously that you have a material connection to Fellow in that you may receive benefits for Eligible Referrals. Your disclosure must be presented in a way that Prospective Customers can easily find it, easily understand it, and so that it contains sufficient information for Prospective Customers to judge the credibility of your statements regarding Fellow. For example, your disclosure should be placed conspicuously near any Referral Link that you present to Prospective Customers. Your disclosure also must be consistent with the Federal Trade Commission (“FTC“) Guides Concerning Use of Endorsement and Testimonials in Advertising, as updated on the FTC website. Below is a sample disclosure message: “I participate in the Fellow Ambassador and Referral Program. By referring you as a prospective customer to Fellow, I may be eligible to receive benefits from Fellow.”
3.4. Marketing Guidelines. Other than sharing your Referral Link, you may not use or set up any website or social media site, or bid on or otherwise use any search engine keywords, that use any Fellow branded search terms, trademarked terms, or branded URLs, including derivatives or misspellings of these. You may not engage in brand bidding on Fellow’s terms or on a competitor’s branded terms to direct traffic to Fellow branded sites. This includes any and all combinations, variations, misspellings or misspelling variations. You must adhereto Fellow’s brand guidelines, and may not use keywords or copy-containing terms that might reflect negatively on Fellow’s brand. You may not buy, create, or publish paid advertisements for Fellow, other than the contents of your Referral Link, without Fellow’s approval. You may not resell or rebroker any Fellow offer, or otherwise offer for sale the contents of your Referral Link, without Fellow’s approval. You may not post Referral Links on or through the following without prior written approval from Fellow, which may be withheld in Fellow’s sole discretion: media; coupon codes not expressly provided to you by Fellow or through the Program; websites or media that contain adult, obscene, hateful, defamatory, or illegal content; loyalty or cashback sites, including through first- or third-party toolbar or browser extensions; email, including first- or third-party email; or websites or media that would reflect negatively on Fellow’s brand. Fellow may withhold or refuse to pay Program payments, defined in section 6, even if otherwise earned, if you violate this policy.
3.5. Prohibited Activities. You agree not to associate Fellow Materials, the Referral Link or the Fellow Product with content that is unlawful in any manner, or which is otherwise harmful, threatening, defamatory, obscene, offensive, harassing, sexually explicit, violent, discriminatory, or otherwise objectionable in Fellow’s discretion. You agree not to send unsolicited electronic messages to multiple unrelated recipients (“Spamming“) in promoting the Fellow Product, or otherwise to engage in any other form of mass electronic communications prohibited by law in connection with activities contemplated under this Agreement. You may not use the Program as a means to self-refer, including for any entity you own, are employed at, contract with, or control, to receive credits or commissions unless agreed with Fellow. Ambassadors of the Program in breach of these terms may be removed from the Program and Fellow may withhold or refuse to pay Commission payments, even if otherwise earned, if you violate this policy.
3.6. Authority. You have no authority, without prior written consent of Fellow, to bind Fellow to any contract, representation and/or understanding concerning Fellow or the Fellow Product. You shall limit the descriptions of the Fellow Product to the marketing information provided by Fellow. You shall not make any representations with respect to Fellow and/or its Fellow Product, nor shall you make any statements that are inconsistent with Fellow’s Terms of Use, Fellow Materials and/or Fellow Materials provided by Fellow.
3.7. Affiliates. You shall remain jointly and severally liable for the actions of your Affiliates under this Agreement.
3.8. Sales Process and Deal Registration. You will promote the Fellow Product using a custom Referral Link.
3.9. Payments to You. Fellow will pay all Program payments pursuant to each Eligible Referral as specified in section 6.
3.10. Relationship of the Parties, Freedom of Action. You are an independent contractor and not an employee, agent, joint venturer, franchisee or partner of Fellow. You have no authority, legal or otherwise, to bind Fellow or to assume or create any obligation or responsibility, express or implied, written or oral, on behalf of Fellow or in Fellow’s name. You are solely responsible for payment of any income taxes, social security taxes, unemployment or disability insurance charges or similar items in connection with your performance of any services for Customers or otherwise in connection with the Program. Fellow will not have any obligation to you for compensation or expense reimbursements in connection with this Agreement or the Program.
4. SUBSCRIPTIONS TO THE FELLOW PRODUCT
4.1. Fellow may make available to you a subscription to the Fellow Product for your own internal use in furtherance of your rights and obligations under this Agreement and specifically not for use for any other purpose, in each case subject to Fellow’s Terms of Use available at https://fellow.app/terms-of-use/, as expressly modified by this Section 4 and as may be modified by Fellow from time to time. Except as provided in this Agreement, Fellow shall have no obligation to you with respect to the subscriptions described in this Section 4.
5. INTELLECTUAL PROPERTY OWNERSHIP, TRADEMARKS, AND MARKETING
5.1. Intellectual Property. Except for the limited rights specifically granted to you in this Agreement, Fellow owns and will retain all right, title and interest, including, without limitation, all intellectual property rights, in and to the Fellow Product and underlying software, related development, enhancements, revisions, trademarks and all patents, copyrights and/or other proprietary rights therein and related thereto. You acknowledge and agree that this Agreement in no way provides any express or implied license to use or otherwise exploit the Fellow Product, the Fellow Materials, or the Fellow Marks, except as specifically set forth herein. Further, all use of the Fellow Materials and Fellow Marks, including all goodwill therein, shall inure to the benefit of Fellow. If you provide any suggestions, enhancement requests, feedback, recommendations or other information relating to any current or future Fellow products or services, the Fellow Materials, or the Fellow Marks (“Feedback“), you hereby grant Fellow an irrevocable, perpetual, nonexclusive, worldwide, transferable, sub-licensable, royalty-free, fully paid up right and license to disclose, use and incorporate such Feedback in order to develop, improve, use, create, commercialize, or exploit any Fellow products or services, without any compensation to you and without any obligation to provide any accounting or other reporting to you. Nothing contained in this Agreement shall be construed to transfer any rights in or to any of the foregoing other than as explicitly set forth in this Agreement.
5.2. Protection of Intellectual Property. You agree to provide prompt notice to Fellow when you become aware of: (i) any actions by any third party which could reasonably be expected to violate any of Fellow’s Intellectual Property Rights; or (ii) any expected or alleged breach of the Terms of Use for the Fellow Product by a third party. If requested by Fellow, you agree to assist Fellow in the investigation or prosecution of any such violations or breaches, provided that all reasonable costs and/or expenses of such investigation or prosecution incurred by you shall be borne by Fellow.
5.3. Use of Fellow Trademarks and Marketing Materials. Provided you continue to comply with this Agreement and remain eligible to participate in the Program pursuant to section 3, Fellow grants you, during the term of this Agreement, a personal, limited, revocable, non-exclusive, non-transferable license to use Fellow branding, trademarks, logos, and trade dress (collectively, “Fellow Marks“), promotional and marketing materials, Documentation, and other materials related to the Fellow Product (collectively and individually, the “Fellow Materials“) for the sole and exclusive purpose of promoting, through the program, the Fellow Product to Prospective Customers. You agree to comply with any guidelines we publish or make available to you regarding use of the Fellow Marks and Fellow Materials, including the Fellow Brand Guidelines. Fellow may immediately suspend or terminate your participation in the Program for your failure to adhere to the Fellow Brand Guidelines. Upon Fellow’s request from time to time, you agree to provide Fellow with copies of materials bearing the Fellow Marks and Fellow Materials so that Fellow can verify the quality of the materials. You shall suspend use of the Fellow Marks and Fellow Materials if Fellow deems such quality inferior until such time as you have taken the steps required by Fellow to solve the quality deficiencies. You shall not register or attempt to register any Fellow Marks or Fellow Materials confusingly similar thereto. You shall not assert any claim to the Fellow Marks and Fellow Materials (or any confusingly similar mark) or any goodwill associated therewith. You shall execute such documents as Fellow may request to record or effectuate Fellow’s ownership of the Fellow Marks and Fellow Materials and related goodwill.
5.4. Ownership and Use of Your Trademarks. As between the parties, you and your licensors and suppliers own and will retain all title and rights to your name and logos (“Fellow Ambassador Marks“), including all related Intellectual Property Rights. You hereby grant to Fellow a non-exclusive, non-transferable, royalty-free, worldwide license to use the Fellow Ambassador Marks and identify you as a partner in Fellow’s promotional and marketing materials, on its website, and in other marketing efforts as the parties may agree from time to time.
5.5. Marketing Statements. Neither party, at any time during the term of the Program and thereafter, will make any false, misleading, or disparaging statements or representations or otherwise communicate, directly or indirectly, in writing, orally, or otherwise that may, directly or indirectly, disparage the other party or any of its subsidiaries, affiliates, or their respective officers, directors, employees, advisors, businesses, or reputations, or its technology or services, or their capabilities, features, functions or performance, including without limitation in or in the course of any sales, marketing, publicity, and other activities under this Agreement, or its relationship with the other party.
6. COMMISSION FEES & PAYMENT
6.1. Commissions. In consideration for the provision of your services in accordance with this Agreement, during the Term of this Agreement, you shall earn two types of commission for Eligible Referrals. You shall earn: (a) Conversion Commission: a commission of $20 USD for each Prospective Customer that creates an Activated Business Workspace during the Term (“Converted Prospect”); and (b) Revenue Commission: 20% of all Subscription Fee Revenues generated by Converted Prospects during the Term up to a maximum of $10,000 USD per referred Customer (collectively, the “Commission“). For clarity, you where a specific customer generates a revenue of $60,000 USD you will only be eligible to receive a $10,000 USD max commission for that specific Customer for the entire Term. You will still be eligible to receive commission for other referred Customers.
6.2. Fees. Fellow shall only pay you the Commission payment for Eligible Referrals that are Converted Prospects that use the Referral Link. All Commissions are payable in United States Dollars. Notwithstanding the foregoing, any cancellation or termination right exercised by Fellow within the Terms of Use or validly exercised by the Converted Prospect will relieve Fellow of any corresponding payment obligations to you for such Subscriptions.
6.3. Payment. You will receive payment for Revenue Commission forty-five (45) days after the final day of the month in which Fellow receives payment on the Sales Contract. Fellow may deduct any amount owed by you to Fellow, including any Program payments Fellow paid you on previous Conversion Commission and Revenue Commission on which Fellow issued the Customer a refund, or for unpaid balances on your own Fellow Subscription or account. Fellow has no obligation to pay you any Commission payments for any Disqualified Referrals, or for any Eligible Referrals that do not result in Conversion Commission or Revenue Commission during the Term, as determined solely by Fellow. Fellow may modify the Program payment terms upon written notice to you by e-mail, or online via the Fellow website. No portion of any Program payments paid or payable to you by Fellow hereunder will be paid to, or accrued directly or indirectly for the benefit of, any person, firm, corporation or other entity, other than you. In addition to the disclaimers in the Agreement, you hereby acknowledge and agree that your right to receive Commission payments is limited and dependent on many factors, including the qualifications and activities of the entities that click on your Referral Link, the functionality of the Referral Link, and your strict compliance with the terms of this Agreement. Fellow shall not be liable for Commission payments due to the inoperability of or other technical issues related to the Referral Link.
6.4. Taxes. You shall be responsible for all taxes, duties, VAT charges and similar taxes and fees which are levied or imposed by reason of any amounts paid to you pursuant to this Program, including but not limited to taxes on your income.
6.5. Expenses. You shall incur and be solely responsible for paying all costs and expenses associated with the your services hereunder, if applicable.
7. TERM AND TERMINATION
7.1. Term. This Agreement commences as of the Effective Date and thereafter will continue in effect unless and until terminated by you or Fellow.
7.2. Termination. You may terminate this Agreement at any time and for any reason by sending an email to legal@fellow.com. Fellow shall have the right to terminate this Agreement at any time and for any reason by providing you with written notice of termination which may be delivered to you by email or by Fellow posting a notice on the Fellow website.
7.3. Effect of Termination (whether by you or by Fellow). Notwithstanding any other provision of this Agreement: (a) the termination or expiration of this Agreement will not relieve either party of its outstanding payment obligations at the time of such termination or expiration unless otherwise prohibited by law; (b) immediately upon termination, all rights and licenses granted to you under the Program and this Agreement (including all amendments and addenda to this Agreement) shall immediately terminate, and you shall have no right to continue as a Fellow Ambassador, and you must (i) remove all references to your participation in the Program from any website, social media site, or other publicly available advertising or other media, (ii) return or destroy all Fellow Materials in your possession, and (iii) otherwise cease from participating in the Program and from making any representation that you are still part of the Program. (c) provisions specified as surviving provisions in this Agreement, and all other provisions necessary to their interpretation or enforcement, will survive indefinitely after the expiration or termination of this Agreement and will remain in full force and effect and be binding upon the parties as applicable.
7.4. No Damages for Expiration or Termination. Fellow shall not be liable to you for damages of any kind, including incidental or consequential damages, on account of the termination of this Agreement. You waive any right you may have to receive any compensation or reparations on termination of this Agreement, which includes, but is not limited to, loss of goodwill, prospective profits or anticipated orders, or an account of any expenditures, investments, leases or commitments made by either Fellow or you. The parties acknowledge that this Section 7 has been included as a material inducement for Fellow to enter into this Agreement and that Fellow would not have entered into this Agreement but for the terms set forth herein.
8. CONFIDENTIALITY
8.1. Confidential Information. All information provided to you by Fellow that is not generally known or available to the public, that concerns Fellow’s business including the terms and conditions of this Agreement, technology and architecture, pricing, employees, Customers, Prospective Customers, Users, or financial affairs, including, without limitation, product roadmap information, other confidential plans for the Fellow Product, and information which is identified by Fellow as confidential or which a reasonable person would deem to be confidential under the circumstances (collectively, “Confidential Information”) is Fellow’s exclusive property. You shall protect the Confidential Information from disclosure and you will not disclose any Confidential Information to any person or entity without prior written approval by an officer of Fellow, either during or after the term of this Agreement.
8.2. Confidentiality Obligations. Except with Fellow’s express prior written consent, or as required by law, you will not use any Confidential Information except for the purpose of promoting the Fellow Product and to optimize and promote adoption of the use of the Fellow Product by Prospective Customers, Users, and Customers.
8.3. Compelled Disclosure. If you become legally compelled to disclose any Confidential Information, you will, if lawfully permitted to do so, immediately provide Fellow with written notice and reasonable cooperation so that Fellow may seek a protective order or other appropriate remedy to protect its interest in the Confidential Information.
8.4. Remedies. If you disclose or use (or threaten to disclose or use) any Confidential Information in breach of this Section 8, Fellow will have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such breach or threatened breach.
8.5. Return of Confidential Information. Upon termination of this Agreement (or at any earlier time upon written request by the Fellow), you will promptly delete all of Fellow’s Confidential Information from any and all of your computer systems, retrieval systems and databases.
8.6. Information about a Prospective Customer, User or Customer. PLEASE READ THE FOLLOWING CAREFULLY: Without limiting the foregoing: (a) if Fellow provides you with information about a Prospective Customer, User or Customer, including without limitation any contact information or statistical information about such Prospective Customer, User or Customer’s use of the Fellow Product, you may use such information solely for the purpose of promoting the Fellow Product to such Prospective Customer, User or Customer, and to assist such Prospective Customer, User, or Customer to optimize and enhance its use of the Fellow Products, and (b) if Fellow provides you with product roadmap information or other confidential plans for the Fellow Products or any other inventions or trade secrets, you may use such information solely for your own internal planning purposes and you will not disclose the information to anyone, including any Prospective Customer, User or Customer.
9. REPRESENTATIONS, WARRANTIES AND DISCLAIMER
9.1. Authority. You represent, warrant and covenant: (i) you have the legal power to enter into and perform obligations under this Agreement; (ii) you will diligently and continuously market the Fellow Product in compliance with the Program and in a way that does not damage the reputation of Fellow or the Fellow Product; (iii) you will not make any false or misleading representations with respect to Fellow or the Fellow Products or make any representations that are inconsistent with the Fellow Materials; (iv) you will not hold yourself out to the public or any Prospective Customer, User or Customer as the agent of Fellow, or make any representation, warranty or promise for or on behalf of Fellow, or otherwise attempt to obligate Fellow in any manner; (v) where applicable, you will provide your own products and services to Prospective Customer, User or Customer with promptness and diligence, in a professional manner consistent with applicable industry standards and virus-free; (vi) you will not directly or indirectly offer any financial or similar incentive to any individual or entity, including any Prospective Customer, User or Customer, in connection with promotion of the Fellow Products; (vii) you will not engage in any deceptive, misleading, or unethical practices that are or might be detrimental to Fellow or Prospective Customer, User or Customer or damage Fellow’s reputation; (viii) the performance of this Agreement will not breach any obligation you owe to any third party; (ix) your exercise of the rights granted herein will not infringe upon any third party’s proprietary rights; (x) you will not display or provide content that is offensive as part of your participation in the Program, including but not limited to blatant expressions of bigotry, prejudice, racism, hatred or excessive profanity or post any obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable content; (xi) you will not post any content that holds Fellow open to public scorn or ridicule; (xii) you will not sell, promote, or advertise in any manner (including through the use of hyperlinks) any products or services that are unlawful in the location at which the content is posted or received, gambling activities, alcohol, tobacco, or any illegal or controlled substance, as part of your participation in the Program. You acknowledge that you are not the agent of Fellow and you have no authority to execute contracts on Fellow’s behalf, or to sell or resell subscriptions, seats, or upgrades to the Fellow Product. You acknowledge that Fellow’s obligations to Users and Customers are set forth in Fellow’s Terms of Use or other agreement between Fellow and such Users and Customers. You are legally responsible for any person acting for you or on your behalf; and (xiii) you are not entering into this Agreement for the purpose of any benchmarking or competitive purposes.
9.2. Compliance with Laws. You represent, warrant, and covenant that you agree to comply with all applicable laws and regulations in the conduct of your activities relating to the Program, including without limitation all applicable anti-corruption, privacy and data protection laws. To the extent you are exposed to personal information of any individual in connection with the Program, you agree to treat such personal information as Confidential Information of Fellow. In addition, with regard to personal data subject to European Union privacy laws, including the General Data Protection Regulation (Regulation (EU) 2016/679) (“GDPR”): you shall (1) comply with the requirements under the GDPR with respect to such data, (2) notify Fellow immediately if you determine you can no longer meet the requirements under the GDPR, and (3) process such data only for the purposes specified in this Agreement.
9.3. Government Officials. You hereby represent and warrant that, you have not, and will not at any time, directly or indirectly, pay, offer, give or promise to pay or give, or authorize the payment of, any monies or any other thing of value to: (i) any officer or employee of any government, or any department, agency or instrumentality; (ii) any other person acting in an official capacity for or on behalf of any government, or any department, agency or instrumentality; (iii) any political party or any official or employee; (iv) any candidate for political office; (v) any other person, firm, corporation or other entity at the suggestion, request or direction of, or for the benefit of, any government officer or employee, political party or official or employee, or candidate for political office; or (vi) any other person, firm, corporation or other entity with knowledge that some or all of such monies or other thing of value will be paid over to any officer or employee of any government department, agency or instrumentality, political party or officer or employee, or candidate for political office. You shall not make any payments or transfers of anything of value which have the purpose or effect of public, commercial or other bribery, acceptance of or acquiescence in extortion, kickbacks, or other unlawful or improper means of obtaining business or any improper advantage.
9.4. Fellow Warranties and Disclaimer. Fellow represents and warrants that it will comply with all laws, rules, and regulations applicable to its performance of its obligations under this Agreement. Fellow warrants to you that it will use commercially reasonable efforts to provide the Fellow Product to the User or Customer. FELLOW MAKES NO OTHER WARRANTIES WITH RESPECT TO THE FELLOW PRODUCT AND DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT, EXPRESS OR IMPLIED, INCLUDING ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON INFRINGEMENT OF THIRD PARTY RIGHTS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. ANY WARRANTIES GIVEN BY FELLOW EXTEND SOLELY TO YOU AND ARE NOT TRANSFERABLE.
10. INDEMNIFICATION
10.1. Fellow Ambassador Indemnification. YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD FELLOW AND ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS, SHAREHOLDERS, OR REPRESENTATIVES (AND ALL SUCCESSORS AND ASSIGNS OF ANY OF THE FOREGOING), HARMLESS FROM AND AGAINST ANY CLAIM OR DEMAND, INCLUDING WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES AND DISBURSEMENTS, MADE BY ANY THIRD PARTY IN CONNECTION WITH OR ARISING OUT OF YOUR PARTICIPATION IN THE PROGRAM, YOUR PERFORMANCE OF SERVICES FOR FELLOW PROSPECTIVE CUSTOMERS, USERS OR CUSTOMERS, YOUR VIOLATION OF THE TERMS OF THIS AGREEMENT, YOUR VIOLATION OF APPLICABLE LAW, AND/OR YOUR VIOLATION OF ANY RIGHTS OF ANOTHER. WE RESERVE THE RIGHT, AT OUR OWN EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF SUCH DISPUTES, AND IN ANY EVENT YOU WILL COOPERATE WITH US IN ASSERTING ANY AVAILABLE DEFENSES.
10.2. Fellow Indemnification. Fellow will defend you and pay amounts finally awarded by a court against you or included in a settlement approved by Fellow that are incurred in connection with any third-party claims made or brought against you alleging that the Fellow Product constitutes an infringement of such third party’s copyright, trademark, or trade secret rights. Fellow will have no indemnification obligation for claims to the extent arising from: (a) your or User’s or Customer’s use of the Fellow Product other than as permitted under this Agreement; (b) the combination of the Fellow Product with any of your products or services or third-party products, services, hardware, data, content, or business processes; or (c) the modification of the Fellow Product by any party other than Fellow or Fellow’s agents. The foregoing is Fellow’s exclusive obligation for infringement claims. If Fellow becomes aware of a claim alleging infringement or misappropriation, or Fellow reasonably believes such a claim will occur, Fellow may, at its sole option: (i) obtain for you the right to continue use of the Fellow Product; (ii) replace or modify the Fellow Product so that it is no longer infringing; or, (iii) if neither of the foregoing options is reasonably available to Fellow, terminate the Fellow Product, in which case Fellow’s sole liability shall be to refund to you a prorated amount of prepaid fees for the Fellow Product applicable to the remaining period in the then-current Subscription Term.
10.3. Indemnity Process. Each party’s indemnification obligations are conditioned on the indemnified party: (i) promptly giving written notice of the claim to the indemnifying party; (ii) giving the indemnifying party sole control of the defense and settlement of the claim (provided that indemnifying party may not settle or defend any claim unless it unconditionally releases indemnified party of all liability); and (iii) providing to the indemnifying party all available information and assistance in connection with the claim, at the indemnifying party’s request and expense; and (iv) not compromising or settling such claim. The indemnified party may participate in the defense of the claim at the indemnified party’s sole expense (not subject to reimbursement). This Section 10 states each party’s entire obligation and exclusive remedy regarding third party claims described in the Section 10.
11. LIMITATION OF LIABILITY
11.1. Disclaimer; Liability Limitation. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PROGRAM, FELLOW MATERIALS, AND FELLOW MARKS ARE PROVIDED “AS IS” WITHOUT WARRANTY, REPRESENTATION, CONDITION, OR GUARANTEE OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES, REPRESENTATIONS, CONDITIONS OR GUARANTEES OF QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ALL OF WHICH ARE DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW. FELLOW SHALL NOT BE LIABLE FOR ANY ACCESS TO, USE OF OR RELIANCE ON THE PROGRAM, THE FELLOW MATERIALS OR THE FELLOW MARKS BY YOU OR ANYONE ELSE, OR FOR ANY TRANSACTIONS, COMMUNICATIONS, INTERACTIONS, DISPUTES OR RELATIONS BETWEEN YOU AND ANY OTHER PERSON OR ORGANIZATION ARISING OUT OF OR RELATED TO FELLOW OR THE PROGRAM. YOUR PARTICIPATION IN THE PROGRAM IS AT YOUR OWN RISK. NEITHER FELLOW NOR ITS AFFILIATES, LICENSORS, VENDORS, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR OTHER REPRESENTATIVES WILL BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, LOSS OF USE, OR COSTS OF OBTAINING SUBSTITUTE GOODS OR SERVICES), ARISING FROM OR RELATING TO THIS AGREEMENT OR THE PROGRAM, FELLOW MATERIALS OR FELLOW MARKS, WHETHER OR NOT FELLOW HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER BASED UPON WARRANTY, CONTRACT, TORT, STRICT LIABILITY, VIOLATION OF STATUTE, OR OTHERWISE. THIS EXCLUSION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. IN ANY EVENT, FELLOW’S AGGREGATE LIABILITY, AND THE AGGREGATE LIABILITY OF FELLOW AFFILIATES, LICENSORS AND VENDORS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE ARISING OUT OF OR RELATING TO THIS AGREEMENT IS LIMITED TO $100. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE AND TO THE FULLEST EXTENT PERMITTED BY LAW. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages such as above in this Section 11. Accordingly, some of the above limitations may not apply to you. If you are a New Jersey resident, or a resident of another state that permits the exclusion of these warranties and liabilities, then the limitations in Section 11 specifically do apply to you.
12. COMPLIANCE
12.1. Laws and Regulations. You shall promptly notify Fellow in writing upon becoming aware of any violations of Applicable Laws in connection with this Agreement.
12.2. Disclosure of Third Parties. You must notify Fellow in writing and receive written approval from Fellow in advance of using any third-party subcontractor, consultant, agent, or other intermediary to assist you in performing your obligations under this Agreement, and Fellow may accept or reject any proposed third party in its sole discretion.
12.3. No Affiliation with Government Officials – Disclosure Obligation. To the extent any director, employee, direct or indirect owner, representative, consultant or agent of yours who is or will be involved in your referral activities for Fellow and the Fellow Product, is a Government Official or a Close Family Member of a Government Official, you shall disclose such fact in writing legal@fellow.com. You shall cooperate if Fellow requests any further information regarding such relationship.
12.4. Disclosure of Contact or Communication with Government-Owned Companies, Government-Controlled Companies, or Government Officials. You must obtain prior written approval from Fellow prior to engaging with any government-owned company, government-controlled company, or Government Official on Fellow’s behalf or in carrying out your obligations under the Program. If you intend or propose to, or contact or communicate with any government-owned company, government-controlled company, or Government Official on Fellow’s behalf or in carrying out your obligations under the Program, you may be subject to additional questions, training, and due diligence, as determined solely by Fellow in writing.
12.5. Export Compliance. The Program and the Fellow Product may be subject to export laws and regulations of Canada and other jurisdictions. You represent that you are not named on any Canadian government denied-party list. You shall not permit anyone to access or use any Fellow Materials in a Canadian-embargoed country or region or in violation of any Canadian export law or regulation. You shall not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the Canada in connection with this Agreement or the Program without first complying with all export control laws and regulations that may be imposed by the Canadian Government and any country or organization of nations within whose jurisdiction you operate or do business. You acknowledge that the Fellow Product and related services are subject to U.S. Export Administration Regulations (15 CFR Part 730 et. seq.), economic sanctions regulations administered by the Office of Foreign Assets Control (“OFAC”, 31 CFR Part 500 et seq.), and other applicable U.S. and global export control and economic sanctions laws and regulations (“Export and Sanctions Laws”). Accordingly, you shall comply with all applicable Export and Sanctions Laws, shall not refer Fellow or provide related services to any individual or organization located in a Canadian or U.S.-embargoed country or region, including but not necessarily limited to North Korea, Cuba, Syria, Iran, and the Crimea, Donetsk, or Luhansk regions of Ukraine, confirm that neither you nor any of your personnel are named on any Canadian or U.S. government list of sanctioned parties or any other applicable restricted party list (“Restricted Parties”), and shall not refer the Fellow Product or provide related services, whether directly or indirectly, to any Restricted Parties.
12.6. Periodic Certification, Training and Agreement to Report Violations. You agree to complete, at Fellow’s request, questionnaires, compliance training, or compliance certifications, and/or otherwise certify in writing to Fellow that you have not, and no other person, including but not limited to every owner, director, employee, representative, agent or third party, that you are using to assist with performance pursuant to this Agreement, has made, offered to make, agreed to make, or authorized any payment, loan, donation or gift of money or anything else of value, directly or indirectly, to or for the benefit of any Government Official, to obtain or retain business, or secure any improper advantage. Should you learn of information regarding any such payment or offer in connection with Fellow’s business, you will promptly advise Fellow at legal@fellow.com of such knowledge or suspicion.
12.7. Records. You shall keep and maintain accurate records in connection with the performance of your obligations under this Agreement, including the compliance obligations of this Section 12 for the term of this Agreement and for a period of five (5) years after expiration or termination. Fellow and/or its designated auditors may audit and make copies of all such records on reasonable notice to you during normal business hours.
12.8. Effect of Breach. You hereby acknowledge and agree that any violation of this Section 12 will constitute a material breach of this Agreement. In the event of such a violation, Fellow will have the right to terminate this Agreement, without any liability whatsoever to you, immediately upon providing written notice of termination. Termination of this Agreement by Fellow under this Section 12 shall be in addition to, and not in lieu of, Fellow’s other legal rights and remedies.
13. CHOICE OF LAW AND DISPUTE RESOLUTION
13.1. Governing Law. This Agreement is governed by and construed in accordance with the laws of the Province of Ontario, Canada and the federal laws applicable therein. The Parties submit and attorn to the exclusive jurisdiction of the courts of Ontario.
13.2. Dispute Resolution. The Parties will attempt to resolve in good faith any Dispute which arises in connection with this Agreement by negotiation. “Dispute” includes any claim or controversy arising out of this Agreement. If the Parties cannot resolve any Dispute through negotiation, the dispute shall be submitted to mediation before resort to litigation. If the need for mediation arises, a mutually acceptable mediator shall be chosen by the Parties who will share the cost of mediation services equally.
14. GENERAL
14.1. Notices. Fellow may deliver general notices related to you by e-mail, posting a notice on the Fellow website, or any other method we choose and such notice will be effective on dispatch. If you give notice to us, it will be effective when received and you must use the following email or physical address: (1) legal@fellow.com; or, (2) Fellow Insights, Inc., 275-532 Montreal Road, Ottawa, ON, K1K 4R4 Attn: Legal Department.
14.2. Relationship of the Parties. The parties are non-exclusive, independent contractors, and nothing in this Agreement or done pursuant to this Agreement will create or be construed to create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
14.3. Inurement / No Third-Party Beneficiaries. This Agreement will inure to the benefit of and will be binding upon the parties and their respective successors and permitted assigns. There are no third-party beneficiaries to this Agreement.
14.4. Severability; No Waiver. If any provision of this Agreement, or any provision incorporated into this Agreement in the future, be or become invalid or unenforceable, the remaining provisions remain in full force and effect. The invalid or unenforceable provision shall be deemed to be substituted by a suitable and equitable provision that, to the extent legally permissible, comes as close as possible to the intent and purpose of the invalid or unenforceable provision.
14.5. Force Majeure. Neither party is responsible for failure to fulfill its non-monetary obligations due to causes beyond its control.
14.6. Assignment. Neither party may assign the Agreement, in whole or in part, without the prior written consent of the other. However, Fellow may assign the Agreement to its Affiliate or to its successor in interest in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
14.7. Attorney’s Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees.
14.8. Entire Agreement. This Agreement (and all terms and conditions incorporated herein), including all exhibits hereto, constitutes the entire agreement between you and Fellow with respect to its subject matter, and supersedes all previous and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. Except as set forth herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing signed by both parties. This Agreement may not be modified by an oral statement by a representative of Fellow.
14.9. Counterparts. This Agreement may be executed in one or more counterparts, each of which when executed shall be deemed to be an original, but all of which taken together shall constitute one and the same instrument. This Agreement may be executed via electronic copy signature.