Terms and Conditions

Last updated: February 11, 2025

Pursuant to these Terms and Conditions, FlashHouse, Inc. (d/b/a Fello) ("Fello", “we”, “us”) agrees to provide you (“Customer”, “you”) access to the Fello software, including, but not limited to, the Fello Platform (the “Software”) and certain other services described herein or in a quote for service entered into between Fello and Customer (the “Quote”). These Terms and Conditions, the Acceptable Use Policy, (available at https://hifello.com/acceptable-use-policy), the Quote, and the Fello Privacy Policy, available at https://hifello.com/privacy-policy, are collectively referred to as this “Agreement”. CUSTOMER ACKNOWLEDGES AND AGREES THAT, BY CLICKING ON THE “I AGREE” OR SIMILAR BUTTON, REGISTERING FOR AN ACCOUNT, OR ACCESSING OR USING THE SERVICES, IT IS INDICATING THAT IT HAS READ, UNDERSTANDS AND AGREES TO BE BOUND BY THESE TERMS AND CONDITIONS, WHETHER OR NOT IT HAS REGISTERED WITH FELLO. IF CUSTOMER DOES NOT AGREE TO THESE TERMS OF SERVICE, THEN IT HAS NO RIGHT TO ACCESS OR USE THE SERVICES. These Terms and Conditions are effective as of the date Customers first clicks “I agree” (or similar button or checkbox) or uses or accesses the Services, whichever is earlier (the “Effective Date”).

I. LICENSE SERVICES

License Grant. Fello grants Customer the non-exclusive, non-transferable, royalty-free, limited license to use, test, perform, or display the Software as provided hereunder during the Term. Customer agrees not to copy, alter, modify, or create derivative works of the Software or the Documentation (defined below). 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 or otherwise use the Software in any way that violates the use restrictions contained in this Agreement.
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.
Usage Limits. Customer acknowledges and agrees that Customer’s login information for the Software (e.g., username and password), including, without limitation, login information provided to individuals who Customer invites to be administrators or agents on Customer’s account, may be used by only one person, and use of a single login for the Software by multiple people is strictly prohibited. Customers’ access and use of the Software under this Agreement, including the number of users accessing the Software, the number of Customer’s contact records, and the number of email sends, contact enrichments, postcards, or other digital and/or physical marketing communications are subject to usage limits and restrictions, which are set forth in the Quote and/or Customer’s admin console. All usage in excess of the stated limits will be subject to additional monthly spend requirements. It is Customer’s responsibility to ensure that Customer does not exceed those limits and restrictions. Fello’s failure to enforce any usage limits or excess spend requirements shall not constitute a waiver of any such limits or spend requirements or any other provision of this Agreement. Fello has the right, but not the obligation, to monitor or remotely audit the use of the Service.

II. INTELLECTUAL PROPERTY OWNERSHIP

Fello Ownership Rights. Fello shall retain all right, title, and interest in and to the Software, the Documentation, and the Services and Customer shall obtain no rights therein other than as expressly set forth in this Agreement.
Marks and Copyrights. Customer shall not and shall not permit any of its employees to remove, alter, deface, obscure or otherwise modify any of Fello’s Marks that are displayed on the Software, whether such Fello Marks are displayed or otherwise rendered by Software or on printed media. In addition, Customer shall not adopt or otherwise utilize any Marks containing confusingly similar names, designs or other indicia to Fello’s Marks nor dilute Fello’s Marks in any manner.
Customer Data. Customer shall retain all right, title and interest in and to all documents, messages, graphics, images, files, data and other information transmitted by Customer or its users to Fello in connection with Customer’s use of the Software, including Customer’s agent roster (collectively, the “Customer Data”), provided, however, that Customer hereby grants to Fello a worldwide, royalty-free, non-exclusive license to use during the Term the Customer Data solely for the purposes of (i) fulfilling its obligations to Customer hereunder and (ii) generating backend reports, graphs, and other materials for internal use in Fello’s day-to-day operations of the Software. Customer represents and warrants that it has the right to transfer and make available to Fello the Customer Data. 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 realtor association from which the data is derived. Notwithstanding the foregoing, “Customer Data” does not include non-identifiable aggregate data compiled by Fello for purposes of improving, maintaining, and/or optimizing the Software, which Fello may retain and use internally without limitation.

III. SUPPORT AND MAINTENANCE

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 agrees that Customer’s 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) and Fello’s advisor staff will provide secondary support to Customer’s trainers and support staff.
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.
Customer will access the Software via the Internet. The Software will be available at least 99% of the time, measured monthly, excluding ordinary system maintenance and data updates. Further, any downtime resulting from outages of third-party connections or utilities or other reasons beyond Fello’s control will also be excluded from any such calculation. Customer's sole and exclusive remedy, and Fello's entire liability, in connection with the availability of the Software shall be that for each period of downtime lasting longer than one hour, Fello will credit Customer 5% of the Monthly Fee for each period of 30 or more consecutive minutes of downtime; provided that no more than one such credit will accrue per day. Downtime shall begin to accrue as soon as Customer (with notice to Fello) recognizes that downtime is taking place, and continues until the availability of the Services is restored. In order to receive downtime credit, Customer must notify Fello in writing within 24 hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash.
Fello, at its 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.

IV. TERM AND TERMINATION

This Agreement shall commence on the Effective Date and shall last for the Initial Term specified on the Quote (the “Initial Term”). At the end of the Initial Term, unless otherwise agreed to in writing, the subscription term to the Software and the term of this Agreement will automatically renew for successive one-year intervals unless Customer cancels the subscription at least 30 days prior to the end of the then current term. Fello reserves the right to modify any prices for the Software or Services by providing Customer notice of such price change at least 45 days prior to the end of the then current term. The term of any subscription add-ons added by Customer during the term of this Agreement shall run concurrently with Customer’s existing term.
In the event of any early termination of this Agreement, except as set forth in section IV 6, Customer shall not be granted a refund for any Software previously paid for, under any circumstances, and shall continue to be obligated to pay its subscription fees through the end of the current term.
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 either Party is unable to perform any of its obligations under the Agreement solely because of natural disaster, actions or decrees of governmental bodies, communication line failure in no way attributable to the impacted Party, or any other unforeseeable events beyond the reasonable control of the Party impacted by such event (hereinafter referred to as a “Force Majeure Event”), the impacted Party will use commercially reasonable efforts to resume performance. Lack of funds shall not be a Force Majeure Event. If the impacted Party’s failure or delay remains uncured for a period of twenty (20) calendar days following written notice of the Force Majeure Event, the other Party may terminate this Agreement without penalty, and, in the case of Customer, shall be entitled to a pro rata refund of any prepaid fees. Notwithstanding anything to the contrary contained herein, Force Majeure Events shall not extend any period of time for the payment of any sums payable by Customer or any period of time for the written exercise of an option or right by either Party.

V. NON-COMPETE

Customer agrees that the launching of a product or service deemed competitive to the Software and/or Fello, 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, 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

THE SOFTWARE AND THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. FELLO MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT PROVIDED THROUGH THE SOFTWARE AND THE SERVICES OR THE CONTENT OF ANY SITES LINKED TO THE SERVICES AND ASSUMES NO LIABILITY OR RESPONSIBILITY IN CONTRACT, WARRANTY OR IN TORT FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICES, (III) ANY ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; AND (IV) EVENTS BEYOND OUR REASONABLE CONTROL.

FELLO DOES NOT MAKE ANY WARRANTY REGARDING THE RESULTS OBTAINABLE FROM USING AI FUNCTIONS OR THE ACCURACY OR SUITABILITY FOR YOUR NEEDS OF ANY INFORMATION (INCLUDING, BUT NOT LIMITED TO, MATERIALS, CONTENT, DESIGNS, WORKFLOWS/PROCESSES, CODE, OR OTHER DATA) OBTAINED THROUGH AI FUNCTIONS. YOU UNDERSTAND AND AGREE THAT ANY SUCH INFORMATION OBTAINED THROUGH USING AI FUNCTIONS IS AT YOUR SOLE RISK. DO NOT RELY ON FACTUAL ASSERTIONS IN OUTPUT WITHOUT INDEPENDENT FACT-CHECKING. DO NOT RELY ON INFORMATION, CONTENT, MATERIALS, DESIGNS, WORKFLOWS/PROCESSES, OR CODE IN OUTPUT WITHOUT INDEPENDENT REVIEW OF FUNCTIONALITY AND SUITABILITY FOR YOUR NEEDS. NO SUCH INFORMATION, SUGGESTIONS, OR OUTPUT, OBTAINED BY YOU FROM FELLO OR THROUGH AI FUNCTIONS SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

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 Quote or as otherwise communicated to Customer.
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.
Your account includes the option to purchase a recurring monthly or annual package of marketing credits for contact enrichments, postcards, other digital and/or physical marketing communications, AI data enrichment, AI calling/SMS and other AI functionality (“Marketing Credits”). You may choose to modify which recurring monthly or annual package of Marketing Credits you opt into at any time, with immediate effect, provided that the costs and allocation of such Marketing Credits may be pro-rated based on the time in the monthly or annual billing cycle, as applicable, at which such change is made.
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, Marketing Credits replenishment fees, auto-purchase or any other fee or charge associated with Your Account.
Customer may elect to co-market the Services with one or more third parties (such third party, the “Co-Sponsor”), where the Co-Sponsor will pay for a portion of Customer’s Fees hereunder, provided that Customer shall remain solely responsible for all of Customer’s obligations under these Terms and Conditions without regard to any such co-marketing arrangement(s).
If Customer elects to use a Co-Sponsor, the following provisions apply:
To the extent the Co-Sponsor is regulated by the Real Estate Settlement Procedures Act, such Co-Sponsor, individually or collectively with other third parties, shall not pay more than fifty percent of the Fees and charges for which Customer is responsible under these Terms and Conditions for such Services.
Subject to the limitation set forth in this Section 5, Customer and Co-Sponsor solely shall make the determination of the amount of any Fees and charges to be shared between them.
As an accommodation to Customer, at the written direction of the Customer, Fello will bill the application portion of the Fees and charges to the Co-Sponsor.
If the Co-Sponsor does not pay the bill transmitted to it by Fello within 3 days of the sending of such bill, Customer shall be responsible for the payment of any such unpaid Fees, and Fello may collect payment of such unpaid Fees by charging Customer’s credit card on file.
As between Customer and Fello, Customer shall bear and assume any and all legal responsibility pertaining to the split of the Fees and charges between Customer and Co-Sponsor and Customer shall indemnify, defend and hold Fello harmless from and against any costs, expenses and liability arising out of, resulting from or in connection with any co-marketing arrangement between the Customer and Co-Sponsor, including, without limitation, such fee split determination and sharing of the fee between the Customer and Co-Sponsor.
Any obligation of Customer to pay fees to the Company pursuant to this Agreement shall survive any termination of this Agreement.

IX. AFFILIATE MARKETING PROGRAM

By participating in Fello’s Affiliate Marketing Program, Customer acknowledges and agrees to the following terms:
Program Facilitator: Our Affiliate Marketing Program is facilitated by First Promoter. By participating in the program, you acknowledge and agree to First Promoter's role in tracking, managing, and administering the program.
Qualified Referrals: A Qualified Referral occurs when Customer shares its referral link with another (the “Referred”) and the Referred acquires a license for the Software.
Commission: Customer will receive a 10% recurring commission for the first year for each Referred customer who signs up using Customer’s referral link, subject to the terms and conditions herein.
Self-Referrals: Self-referrals are strictly prohibited. The purpose of the Affiliate Marketing Program is to encourage affiliates to promote our products and services to others, not to obtain discounts for themselves.
Client Referrals: If Customer wishes to sign up clients using its referral link, we recommend either signing up from your clients’ computers or signing up your clients without using the referral link and emailing their sign-up information to support@hifello.com for manual addition to the system.
Missing Referrals: If an intended referral signs up without using your referral link, please send their email address to support@hifello.com within 30 days, and we will manually add them to the system.
Tracking and Reporting: Our tracking is based on browser cookies. If you believe a referral is not tracked correctly, please contact our referral platform provider at support@firstpromoter.com.
Cookie Life: The referral cookie life is 60 days. Conversions will not be tracked after 60 days from the first referred visit.
Referral Fee Payment: There is a pending period of 45 days after payments are completed by users to avoid chargebacks, refunds, and other fraudulent activities. After 45 days, the Referral Fee Payment will be paid via PayPal.
Alternative Payment Methods: If you do not have PayPal, please contact us at support@hifello.com to set up an alternative payment method.

X. OFFBOARDING

By using our services, you acknowledge and agree to the following offboarding terms:
Removal of Links and Code: The onboarding fee covers the implementation and placement of our URL links and Fello custom code on your website. However, the removal of these links and code is not included in the onboarding fee. Customer is responsible for coordinating with its own website specialist or team to remove all links and code from its website upon termination of this Agreement.
Data Retention and Deletion: Upon termination of Fello’s Services, Fello will retain Customer Data for a period of 30 days. After this period, Fello reserves the right to permanently delete all Customer Data from our systems. It is Customer’s responsibility to export and save any necessary data before the end of this retention period.
Exporting and Deleting Contacts: Customer may export and delete its contacts from Fello’s platform at any time. Customer acknowledges and agrees it is Customer’s responsibility to ensure it has appropriate backups or copies of any contacts and other data before deleting them from the platform.
Disabling Fello Platform: Customer may turn off any and all Fello Software at any time. Instructions are provided within the platform on how to do so or Customer may contact the Fello support team for assistance.
Outstanding Payments: Upon termination of our services, any outstanding payments or fees owed by Customer to Fello must be settled within 30 days. Failure to make timely payment may result in additional late fees or legal action.
Confidentiality Obligations: Customer’s obligations regarding the confidentiality of any proprietary or confidential information received during the course of using our services shall survive the termination of the services.
Transition Assistance: Upon request, and at our sole discretion, Fello may provide transition assistance to help Customer migrate your data and operations to another service provider. If Fello agrees to provide such assistance, Fello reserves the right to charge a reasonable fee for this service.

XI. CONFIDENTIAL INFORMATION

“AI Functions” is defined as features and capabilities offered as part of the Services that utilize artificial intelligence, machine learning or similar technologies developed by Fello and/or Fello’s third-party providers. Fello and its licensors exclusively own all right, title, and interest in and to the Al Functions, including all associated intellectual property rights.
“User Content” is defined as any content, information, and materials that may be textual, audio, or visual that you provide, submit or upload to the Services for use with AI Functions, including any AI “chatbots”, or similar programs. When you provide User Content for use with Al Functions, you will receive output generated and returned by the Al Functions ("Output," and together with User Content, "Al Content").
You are solely responsible for your User Content, including compliance with applicable laws and the Agreement. To the extent that any User Content contains personal data of any individuals, you are responsible for making sure that you have the appropriate permission and legal basis for us to collect and process information about those individuals. You authorize Fello and its third-party providers to process your User Content to provide you with the Al Functions. You agree that Fello may use subprocessors to provide the AI Functions to you. You acknowledge and agree that Fello:

Is not involved in the creation or development of User Content.
Disclaims any responsibility for User Content or any personal data included in User Content.
Cannot be liable for claims arising out of or relating to User Content, including any personal data included in User Content.
Is not obligated to monitor, review, or remove User Content, but reserves the right to limit or remove User Content on the Services at its sole discretion.

You hereby represent and warrant to Fello that your User Content (i) will not be false, inaccurate, incomplete or misleading; (ii) will not infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary right or rights of publicity, personality or privacy; (iii) will not violate any law, statute, ordinance, or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination, false advertising, anti-spam or privacy); (iv) will not be defamatory, libelous, unlawfully threatening, or unlawfully harassing; (v) will not be obscene or contain pornography (including but not limited to child pornography) or be harmful to minors; (vi) will not contain any viruses, Trojan Horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (vii) will not represent you being employed or directly engaged by or affiliated with Fello or purport that you are authorized to act as a representative or agent of Fello; and (viii) will not create liability for Fello or cause Fello to lose (in whole or in part) the services of its ISPs or other suppliers.
By making available any User Content through the Services, you hereby grant to Fello a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, access, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast and otherwise exploit such User Content on, through or by means of the Services, including processing, storing, and otherwise using such Al Content to further train, develop, enhance, and improve the Services and the AI Functions. In addition to the uses set forth above, we may also use anonymized, aggregate usage and system data from the Services and AI Functions for any business purpose. You expressly acknowledge and agree that we may share your User Content with third party services and that we expressly disclaim any and all liability in connection therewith. Fello has no obligation to report on the use of User Content except as set forth in Section XII (Confidential Information). We do not claim any ownership rights in any User Content, and nothing in this Agreement will be deemed to restrict any rights that you may have to use and exploit any such User Content.
We make no representations or warranties with respect to the accuracy of the Output, and you should not rely on any Output including, without limitation, Output that purports to provide legal, medical or financial advice, without independently confirming their accuracy.
The Output generated by the Services may be similar or identical to the Output generated by the Services for other users. You acknowledge that you have no right, title or interest in or to Output that the Services generate for you or any End Users.

XII. 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.

XIII. INDEMNIFICATION

By Fello. Fello shall defend Customer against any claim, demand, suit, or proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Software of Service as permitted hereunder infringes or misappropriates the Intellectual Property rights of a third party, and shall indemnify Customer for any damages finally awarded against, and for reasonable attorneys’ fees incurred by, Customer in connection with any such Claim; provided that Customer (i) promptly gives Fello written notice of the Claim, (ii) gives Fello sole control of the defense and settlement of the Claim (provided that Fello may not settle or defend any Claim unless it unconditionally releases Customer of all liability), and (iii) provides to Fello all reasonable assistance, at Fello’s expense.

By Customer. Customer shall defend Fello against any Claim made or brought against Fello by a third party alleging that the Customer Data, or Customer’s use of the Software or Services (a) in violation of this Agreement, infringes or misappropriates the Intellectual Property rights of a third party or violates applicable law or (b) violates any advertising, real estate or other laws that are specifically applicable to Customer, and shall indemnify Fello for any damages finally awarded against, and for reasonable attorneys’ fees incurred by, Fello in connection with any such Claim; provided that Fello (a) promptly gives Customer written notice of the Claim, (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle or defend any Claim unless it unconditionally releases Fello of all liability), and (c) provides to Customer all reasonable assistance, at Customer’s cost. It is the sole responsibility of Customer to confirm that its use of the Software and Services complies with any and all applicable laws and regulations.

Sole and Exclusive Remedy. This Section XII states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this section.

XIV. 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 IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY.
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 XII, 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.

XV. 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 either party may assign this Agreement without the need for consent to any direct or indirect subsidiary or affiliate or to the surviving entity in a merger of that party into another entity or in an acquisition of all or substantially all of its assets.
This Agreement and the covenants and agreements herein contained shall inure to the benefit of and be binding on the parties hereto and their respective permitted successors and assigns.

XVI. GENERAL

This Agreement 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.
The Parties will submit any dispute between them arising out of or relating to formation or performance of this Agreement to binding arbitration administered by JAMS (see https://www.jamsadr.com) under its Comprehensive Arbitration Rules and Procedures then in effect. The arbitration will be conducted in Columbus, OH in the English language before a single arbitrator who possesses expertise in the subject matter of the dispute. The arbitrator is not authorized to award punitive or other damages expressly limited and excluded in this Agreement, and the parties waive any award to the extent that such damages are not authorized but the arbitrator is authorized to award attorneys’ fees as determined by the arbitrator. Any award issuing in the arbitration is final and binding and may be enforced in any court of competent jurisdiction. The Parties will keep confidential the arbitration proceedings and arbitration award, except as is otherwise required by court order or as is necessary to confirm, vacate or enforce the award, and for disclosure in confidence to the Parties’ respective attorneys, tax advisors and senior management. Notwithstanding the foregoing, either Party may seek injunctive or provisional relief at any time in any court of competent jurisdiction.
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 Quote.
The relationship between Fello and Customer is solely that of independent contractors and not that of an agency, partnership, or joint venture. Neither Party shall have the authority to represent or bind the other except as otherwise expressly provided in this Agreement.