Terms of Service

Last updated: October 1, 2022

By signing the Software as a Service Agreement (the “SaaS Agreement”) to which these Terms and Conditions are incorporated, CUSTOMER agrees to be bound by these Terms and Conditions. Capitalized terms not defined herein shall have the meaning set forth in the SaaS Agreement. The SaaS Agreement and these Terms and Conditions shall collectively be referred to as the “Agreement”.

 

 I. LICENSE SERVICES 
  • Fello grants CUSTOMER the non-exclusive, non-transferable, royalty-free license to use, test, perform, or display (except with respect to the source code of) the Fello Connect Platform (the “Software”). Unless Fello gives prior written permission, CUSTOMER shall not sell, rent, lease, license or otherwise distribute the Software to any third party. CUSTOMER shall not reverse engineer, disassemble, or decompile the Software or any related collateral. 

  • Fello will provide CUSTOMER marketing collateral, training materials, and other information (collectively, the “Documentation”) to support successful use of the Software.

  • Fello will provide to CUSTOMER the information technology, implementation, installation and training services (collectively, the “Services”) to support successful use of the Software. 

  • Subject to the terms of this Agreement, access to the Software will be via the Internet and will be available at least 99% of the time, seven days per week, subject to ordinary system maintenance and data updates. 

  • Fello shall provide user training via web conference, for CUSTOMER’s personnel, which may include the Customer’s executives, trainers and support staff, at a date mutually agreed by the Parties. CUSTOMER trainers and support staff will be responsible to train other CUSTOMER end-users of the Software and to provide the initial point of contact for primary customer service and technical support (e.g., hardware troubleshooting and general questions about the software and its functionality). Fello’s advisor staff will provide secondary support to CUSTOMER’s trainers and support staff. 

 

II. DELIVERY AND ACCEPTANCE 
  • Fello shall deliver the Software and Documentation at the time, place and order of delivery as described in the SaaS Agreement, namely access to the platform based on features related to the tier of service paid for by Customer. Fello shall notify CUSTOMER in writing that the Software is ready for acceptance testing (as set forth hereinafter) no later than the effective date set forth in the Agreement.

  • Fello, at Fello’s sole expense and with the reasonable cooperation and assistance of CUSTOMER, shall endeavor to correct inaccuracies and non-conformities in the Software within two (2) business days after CUSTOMER notifies Fello in writing or email, specifying the inaccuracies and non-conformities with as much detail as is reasonably possible. 

 

III. MAINTENANCE AND SUPPORT 
  • Fello  agrees to use commercially reasonable efforts to ensure that the Software continues to perform in accordance with the Documentation and terms of this Agreement, including the provision of corrections to the Software to cure any non-conformance of the Software with its current published Documentation upon written notice by CUSTOMER. 

  • Fello shall provide Software maintenance and support during normal business hours, Monday through Friday, 9:00 a.m. to 5:00 p.m. EST with the exception of nationally recognized holidays. CUSTOMER will provide primary Software support at all times to its own authorized users and Fello will provide escalation support to CUSTOMER’s support personnel. 

  • From time to time, Fello may, but is not obligated to, release updates to the Software. “Updates” mean the provision of any releases, updates, service-packs, patches or hot-fixes for the Software that are generally made available to Fello  customers. Updates do not include new product modules that are considered add-on components that introduce new and previously unavailable features or tools. Fello represents and warrants to CUSTOMER that it uses reasonable efforts to test all Updates for conformity with Documentation prior to such Updates being provided to CUSTOMER. Upon release of such Updates to CUSTOMER, Fello shall also provide documentation notes explaining, among other things, the latest changes and enhancements contained in the Updates. 

 

IV. TERM AND TERMINATION 
  • This Agreement shall commence on the Effective Date and shall last for the Initial Term specified on the SaaS Agreement (the “Initial Term”). During the Initial Term CUSTOMER may cancel this agreement for any reason by providing Fello written notice. The Agreement will be canceled 30 days after Fello receives written notice from CUSTOMER. Fello will not provide any refunds and CUSTOMER will promptly pay all unpaid fees due through the end of the Agreement Term.

  • Upon completion of the initial term, Agreement will auto-renew monthly at the Standard Rate unless CUSTOMER cancels the subscription.

  • In the event of a material breach of this Agreement, the non-breaching party shall notify the breaching party in writing of such material breach. Upon receipt of such written notice of such breach, the breaching party shall be given the opportunity to cure such breach within ten (10) calendar days. If the breaching party fails to cure the breach within the ten (10) calendar day period provided for herein, the non-breaching party shall be entitled to terminate this agreement upon providing notice to the breaching party. 

  • Notwithstanding anything to the contrary set forth above, Fello may terminate the Agreement in the event CUSTOMER is more than thirty (30) days delinquent in making payments of any undisputed amounts due hereunder and continues to be delinquent for a period of ten (10) days after CUSTOMER has received written notice of such delinquency from Fello. 

  • Either party may terminate the Agreement by written notice to the other party, and regard such party in default of this Agreement, if such other party makes a general assignment for the benefit of creditors, suffers or permits the appointment of a receiver for its business or assets, becomes subject to any proceeding under any bankruptcy or insolvency law or has suffered liquidation, voluntarily or otherwise. 

  • In the event Fello  is unable to perform any of its obligations under this Agreement solely because of natural disaster, actions or decrees of governmental bodies or communication line failure in no way attributable to Fello (hereinafter referred to as a “Force Majeure Event”), Fello will use commercially reasonable efforts to resume performance. Delays in delivery due to Force Majeure Events shall automatically extend the term of this Agreement for a period equal to the duration of such Force Majeure Events. 

 

V. NON-COMPETE
  • CUSTOMER agrees that the launching of a product or service deemed competitive to Fello Connect, with the intention of licensing or selling that product or services to any companies not affiliated with CUSTOMER, will be a violation of this Software Licensing Agreement. This determination will be made at the sole discretion of Fello. CUSTOMER will be given 7 days to cure. If not resolved to the satisfaction of Fello this will result in termination of Agreement 

 

VI. MARKETING SERVICES
  • Customer agrees to consider the following services, if and when reasonably requested by Fello (collectively, the “Marketing Services”):

    • Provide references to industry analysts, prospective customers and investors of Fello, and to other parties interested in Fello’s software and services.

    • Participate in joint press release(s) drafted by Fello (subject to CUSTOMER’s approval which shall not be unreasonably withheld, conditioned or delayed). The press release topic(s) will be determined by mutual consent and will include such topics as the announcement of CUSTOMER’s decision to purchase and use the Services and the reason(s) for such decision, and the positive impact of the Services on CUSTOMER’s business and CUSTOMER satisfaction. Press releases would contain one or more quotes from senior CUSTOMER management.

    • Participate in case studies regarding topics selected by mutual consent. For example, a case study might explain the nature of the problems faced by CUSTOMER prior to implementing the Services, Customer’s successful deployment of the Services and the benefits derived from such Services.

    • Permit the use of CUSTOMER’s name and logo on Fello’s website and in other Fello promotional materials and services as shall be mutually agreed between the parties. 

 

VII. WARRANTIES 
  • CUSTOMER represents and warrants that it has the right to transfer and make available to Fello the information and data to be provided to it in connection with this Agreement. Furthermore, CUSTOMER warrants that it will make such data available to Fello at no additional cost as reasonably requested by Fello and agrees that the use of the data or derivative information will comply with rules and regulations in effect promulgated by the local MLS or Association from which data is derived.

  • CUSTOMER represents and warrants that it owns all data that CUSTOMER has or will provide to Fello. The only acceptable uses of the data include the Fello Connect & Engage products that CUSTOMER subscribes to. No other use of the data by Fello or any third party is acceptable without express written consent of CUSTOMER.

  • Fello agrees to use commercially reasonable security precautions to protect the data and the users of the Software. 

  • Fello warrants and represents that the Software furnished under this Agreement (a) is owned by Fello, (b) is free from all material programming errors and defects, (c) shall operate and substantially conform to the Documentation and (d) any related Maintenance and Support and/or Services as defined in Section III shall be performed in a timely and professional manner in accordance with applicable industry standards by qualified professional personnel.

  • Subject to any restrictions on the information provided by CUSTOMER to Fello, Fello warrants and represents that (a) neither the Software, Services (including any Work Product), and Maintenance and Support, and/or any portion thereof, (collectively, the "Materials"), nor CUSTOMER’s use as permitted under this Agreement, shall violate, infringe upon, or misappropriate any patent, copyright, trade secret, trade name, or other intellectual property rights, moral rights, or proprietary rights of any third party, or breach any contract by which Fello  is bound, (b) the Materials are not the subject of any allegation or claim that, if true, would conflict with Fello's obligations under this Agreement or the applicable Exhibit(s), and (c) the Materials are not subject to any agreements or licenses to or from third parties that impose any obligations on CUSTOMER beyond CUSTOMER's obligations under this Agreement (collectively, any breach of this Section VI shall be referred to hereinafter as "Infringement").

  • Fello warrants and represents that the Software and, as applicable, the performance by Fello of any Services or Maintenance and Support, shall be in compliance with all applicable laws, rules and regulations of the United States.

  • EXCEPT AS SPECIFICALLY MADE UNDER THIS AGREEMENT, FELLO MAKES NO FURTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, USAGE OF TRADE, OR FITNESS FOR A PARTICULAR PURPOSE. 

VIII. FEES 
  • The payment of all applicable fees in connection with the Software, including related Services and Maintenance, shall be expressly set forth in the SaaS Agreement.

  • CUSTOMER shall be responsible for the payment of all taxes (except for taxes attributable to the net income of Fello), if any, due in connection with this Agreement. 

  • CUSTOMER agrees that Fello may charge to CUSTOMER’s credit card or other payment mechanism selected by CUSTOMER and approved by Fello ("Your Account") all amounts due and owing for the Services, including taxes and service fees, set up fees, subscription fees, or any other fee or charge associated with Your Account.

 

IX. CONFIDENTIAL INFORMATION 
  • Each party agrees that any information and documents that are furnished to the other party for the purposes of performing the Services or which are produced or are otherwise furnished to or come to the attention of either party are proprietary and shall be used only for the purposes of this Agreement. This information may include, without limitation: the terms of this Agreement, technical specifications and operating manuals, services and information concerning current, future, or proposed products and services and combinations of products and services; product and services descriptions; financial information; information related to mergers or acquisitions; passwords and security procedures; computer programs, software, and software documentation; records; policies, practices and procedures; and any or all other information, data or materials relating to the business, trade secrets and technology of either party including, but not limited to any software (in both source and object code), programming language, systems, analyses, interfaces, algorithms, procedures and output, its customers, clients, employees, business affairs, affiliates, subsidiaries and the affiliates of its parent organization (all of the foregoing collectively referred to as “Confidential Information”). 

  • Each party shall maintain the Confidential Information of the other in confidence using the same care and discretion to avoid disclosure of Confidential Information as it uses to protect its own confidential information that it does not want disclosed but in no event less than a reasonable standard of care each party further agrees to (a) restrict disclosure of Confidential Information of the disclosing party solely to persons who need to know the Confidential Information to perform under this Agreement, (b) not to disclose any Confidential Information to any third party or copy Confidential Information without written consent of the disclosing party, and (c) inform these third parties and other persons who receive Confidential Information of its confidential nature and obtain their agreement to abide by the obligations set forth herein.

  • The obligations imposed under this Agreement shall not apply to Confidential Information that is (a) made public by the disclosing party, (b) generally available to the public other than by breach of this Agreement by the receiving party, or (c) rightfully received from a third person having the legal right to disclose the Confidential Information free of any obligation of confidence. In the event that either party, or any of such party’s partners or employees, becomes legally compelled (by deposition, interrogatory, request for documents, subpoena, civil or criminal investigative demand or similar process) to disclose any Confidential Information of the other party, such party or other person shall provide the other party with prompt prior notice so that the party having the right to keep such Confidential Information confidential may seek a protective order or other appropriate remedy.

  • Each party acknowledges and agrees that any breach or threatened breach of any of the provisions of this Section by the other party will result in immediate and irreparable harm and that any remedies at law in such event will be inadequate. The parties agree that such breaches, whether threatened or actual, will give the non-breaching party the right to terminate this Agreement immediately and obtain injunctive relief to restrain such disclosure or use. This right shall, however, be in addition to and not in lieu of any other remedies at law or in equity.

  • Upon termination of the Agreement, all copies of the Confidential Information will either be destroyed or returned to the requesting party immediately upon such party’s request. Each party agrees that it will not retain any copy, summary or extract of the Confidential Information or any related work papers on any storage medium whatsoever. Upon request, each party will provide a certification from an appropriate officer that the requirements of this paragraph have been satisfied in full.

  • The provisions of this Section shall survive the termination or expiration of this Agreement. 

 

X. AGENT ROSTER TERMS OF USE
  •  If CUSTOMER provides Fello with CUSTOMER’s agent roster (the “Agent Roster”), Fello will use the Agent Roster solely for the purpose of providing CUSTOMER’s agents information pertaining to Fello’s platform, including enhancements to the software, new verified buyers included on the platform, and recommendations about how to use the platform most effectively

  • Fello will not utilize the Agent Roster to solicit agents for any products or services provided by any third party. 

  • Fello will not share the Agent Roster with any outside parties. 

 

XI. INDEMNIFICATION
  • Each party (the “Indemnifiers”) shall indemnify, defend and hold harmless the other party, its respective officers, directors, employees, agents, successors and permitted assigns (collectively, the “Indemnitees”) from and against any and all Losses arising out of or in connection with (i) either party’s breach of any of its representations, warranties or obligations set forth in this Agreement, including, but not limited to, any claim for Infringement, except for Infringement claims based upon data supplied by CUSTOMER to Fello (ii) either party’s willful misconduct or intentional or grossly negligent actions or breaches hereunder, in connection with its performance under this Agreement, or (iii) a claim or action brought by any third party relating to the purpose or performance of this Agreement, or (iv) any claim or action that may arise under the Americans With Disabilities Act. 

  • For purposes of this Agreement, "Losses" shall mean and include any direct losses, liabilities, damages, claims, costs, penalties, expenses, and fees, and settlement, incurred in any action or proceeding between either party or between either party and any third party.

  • The Indemnitee shall give the indemnifier (each of CUSTOMER or Fello, depending upon which party is providing indemnification hereunder, shall be referred to as “Indemnifier”) prompt written notice of any such Claim and shall cooperate in the defense of any such matter at the Indemnifier’s expense. No Indemnitee shall settle or compromise any such Claim without the Indemnifier’s prior written consent, which shall not be unreasonably withheld. 

 

XII. LIMITATIONS OF LIABILITY
  • NEITHER PARTY TO THIS AGREEMENT SHALL BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST OR CORRUPTED DATA, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY ARISING FROM DEFAULT IN THE PERFORMANCE OF THEIR RESPECTIVE OBLIGATIONS UNDER OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT. THIS LIMITATION APPLIES REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT. FELLO’’S TOTAL LIABILITY FOR ANY LOSS, COST, CLAIM OR DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF THE FEES PAID AND/OR PAYABLE BY CUSTOMER TO FELLO UNDER THE APPLICABLE EXHIBIT(S) FOR THE INITIAL TERM OF THE AGREEMENT. 

  • NOTWITHSTANDING ANYTHING TO THE CONTRARY, THE LIMITATIONS OF LIABILITY SET FORTH ABOVE IN THIS SECTION SHALL NOT APPLY TO (i) EITHER PARTY’S BREACH OF THE OTHER’S CONFIDENTIALITY OBLIGATIONS UNDER SECTION VII, (ii) EITHER PARTY’S LIABILITY FOR ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION VIII, OR (iii) EITHER PARTY’S LIABILITY FOR ITS WILLFUL MISCONDUCT OR INTENTIONAL OR GROSSLY NEGLIGENT ACTIONS OR BREACHES HEREUNDER, IN CONNECTION WITH ITS PERFORMANCE UNDER THIS AGREEMENT.

 

XIII. ASSIGNMENT
  • This Agreement may not be assigned by either party without the prior written consent of the other party, which consent shall not be unreasonably withheld, provided, however, that CUSTOMER may assign this Agreement without the need for consent to any direct or indirect subsidiary or affiliate. 

  • This Agreement and the covenants and agreements herein contained shall insure to the benefit of and be binding on the parties hereto and their respective permitted successors and assigns.

 

XIV. GENERAL
  • This Agreement, which includes the SaaS Agreement and the Terms and Conditions, constitutes the entire agreement between the parties hereto and supersedes all prior agreements and other communications, oral or written, relating to the subject matter hereof and may not be modified or amended except by written agreement executed by both parties hereto.

  • This Agreement, including the performance and enforceability hereof, shall be governed by and construed in accordance with the laws of the State of Ohio. Each party hereby submits itself for the sole purpose of this Agreement and any controversy arising hereunder to the exclusive jurisdiction of the federal or state courts located in the State of Colorado, and any courts of appeal there from, and waives any objection (on the grounds of lack of jurisdiction, or forum non conveniens or otherwise) to the exercise of such jurisdiction over it by any such courts.

  • In the event any one or more of the provisions of this Agreement shall for any reason be held to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall be unimpaired, and the invalid, illegal or unenforceable provision shall be replaced by a mutually acceptable provision, which, being valid, legal and enforceable, comes closest to the intention of the parties underlying the invalid, illegal or unenforceable provision.

  • The failure of either party to insist upon the performance of any terms or conditions of this Agreement or to exercise any right or privilege conferred in this Agreement or the waiver of enforcing penalties resulting from any breach of any terms and conditions of this Agreement, shall not be construed as waiving any such terms, conditions, rights or privileges, but the same shall continue and remain in full force and effect as if no such forbearance or waiver had occurred.

  • Any notice or other communication hereunder shall be in writing and be given, or sent by overnight delivery by a nationally recognized commercial carrier, registered mail, postage prepaid, and addressed to the respective parties as set forth in the SaaS Agreement.

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