Terms of Service

FERGUS: TERMS OF SERVICE 

By accessing any Fergus Site or the App, you agree to be bound by these terms and conditions, which together with our Privacy Policy, form a binding agreement between you and us (Agreement). If you do not agree to these terms and conditions then you should not access the Fergus Site or download the App. 

If you are accessing the Service on behalf of a Customer, you confirm that you have the authority to act on behalf of that entity. 

From time to time we may need to make changes to these terms of service. We will notify you of any by posting them on the Fergus Site or by emailing you, and you agree by continuing to access or use the Fergus Site and/or the App to be bound by the updated terms. 

1. Definitions 

1. Unless the context requires otherwise: 

“Account” means an account registered by a Customer through the Fergus Site or the App, which enables the Customer (and its Users) to access and use the Service. 

“App” means the Fergus online application (available via the Apple Store or Google Play Store) through which the Service may be accessed. 

“Confidential Information” means all information provided by one party to the other in connection with this Agreement where such information is identified as confidential at the time of its disclosure or ought reasonably be considered confidential based on its content, nature or the manner of its disclosure, but excludes: 

1. information that enters the public domain or is disclosed to a party by a third party, other than through a breach of this Agreement, and 

1. information developed independently by a party. 

“Content” has the meaning given to it in clause 7.1. 

“Customer”, “you” or “your” means any person who registers to access and use the Service, and in whose name the Account is created.  

“Data Privacy Laws” means the privacy laws that either you or we are legally obliged to comply with, including (as applicable), the NZ Privacy Act 2020, the Australian Privacy Act 1988, General Data Protection Regulation (EU) 2016/679 (EU GDPR) and/or the United Kingdom Data Protection Regulation (UK GDPR). 

“Fees” means all fees payable by you to Fergus (including but not limited to, subscription fees, training fees, licensing fees and service based fees), as specified on the Website or as otherwise agreed in writing by Fergus with you. 

“Fergus”, “we”, “our” or “us” means the Fergus entity that you contract with pursuant to these terms of service. This will be: 

1. if you are located (or a company registered) in Australia; Fergus Software Pty Limited (ACN 605 226 417)); or 

1. if you are located (or a company registered) in the United Kingdom, Fergus Software Systems (UK) Limited; or 

1. if you are located (or a company registered) elsewhere, Fergus Software Limited in New Zealand (NZBN 9429031078085). 

 

“Fergus Site” means the Fergus website (www.fergus.com), or any other such website that supersedes it in the future. 

“Intellectual Property Rights” means all intellectual property rights, including all copyright, moral rights, patents, trademarks, design rights, trade secrets, domain names, know how and other rights of a similar nature, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application. 

“Privacy Policy” means the Fergus Privacy Policy (as updated from time to time), available at https://fergus.com/privacy-policy/. 

“Service” means the job management Service made available by Fergus through the Fergus Site and/or the App, including but not limited to its customer retention management and work management software and its mobile applications.   

“Software” means the Fergus software and other third party software (including artificial intelligence systems) used by Fergus to provide the Service. 

“User” means any of your personnel, contractors (or other third parties) that access and use the Service on your behalf or otherwise input User Materials into the Service in connection with your Account. 

“User Materials” means: 

1. any and all information, data, documents, images, photos and videos (including Account registration information and your customer information) that you or your Users input into the Service or otherwise make available to Fergus (including via the Website or the App); and 

1. any and all data that relates to you or your Users that a third party (for example, a supplier of trade materials) inputs into the Service for you in connection with your Account, 

but for clarity, excludes any Content. 

1. Service 

1. Subject to compliance by you with this Agreement we grant to you and you accept from us, a non-exclusive, non-transferable and non-assignable right for you (and your Users) to access and use the Service during the Term in accordance with this Agreement. 

1. If you wish to access and use the App and the Service, you must become a registered user and activate an Account via the Fergus Site. 

1. You warrant that all User Materials you (or your Users or other third parties) supply to us or input into the Service is accurate, complete and up to date. You acknowledge that the Service (and the accuracy, completeness and reliability of the outputs you receive from it) depends entirely on the accuracy and completeness of all User Materials inputted into the Service.   

1. Users 

1. Access to and use of password protected or secure areas of the Fergus Site, App and Service are restricted to you and your Users only. You are responsible for keeping all your access information for the App and the Service, including email addresses and log-on credentials, secret and secure, and agree: 

1. to ensure that each User only accesses and used the Service in accordance with the relevant licence granted to that User; 

1. not to disclose and to ensure that Users do not disclose their user name or log-on credentials to any other person; 

1. to ensure that none of your Users (or any other person under your control) attempts to gain unauthorised access to the App, Service or Content; and 

1. to inform us immediately of any known or suspected unauthorised access to and use of the App, Service or Content. 

1. You must notify each User of the terms of this Agreement and ensure that each of them strictly comply with these terms.  You shall be responsible (and liable) for any failure of any User to comply with the terms of this Agreement (as if it were a breach by you of this Agreement). 

1. Fees 

1. In consideration of your (and your Users’) use of the Service, you will pay us the Fees.  

1. Our Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties. If we are required to pay or collect any goods and services or value-added tax on any Fees charged under this Agreement, then such taxes and/or duties will be billed to and paid by you. 

1. Unless otherwise stated in your billing plan, Fergus charges the Fees on a per user basis with a plan type base. It solely up to you to maintain your own plan, type, user levels and other Fergus products used via the Fergus software. 

1. We may, from time to time, cancel the continued availability of any subscription package. However, we will provide you with advance notice of any such cancellation.  

1. Fees are subject to change, provided that you will be given advance notice of any impending Fee changes in accordance with this Agreement.' 

1. Payment 

1. Fees shall be payable by credit card. Credit card transactions are securely processed by third-party providers indicated when your credit card is entered, and are subject to the third-party providers terms of service available on their website. The third-party providers are solely responsible for such transactions and we exclude all liability for such transactions to the extent not restricted by law. The third-party providers maintain administrative, technical, and physical procedures to protect information stored on its servers, as outlined within its own privacy policy.   

1. If you do not pay the Fees on the due date for payment (including where your payment has been dishonoured), we: 

1. will suspend access to the Service if payment is not made in full of all amounts due and owing to us within 14 days of invoice date; 

1. may charge interest on the unpaid amount from the due date until the date of actual payment at 2% per annum over the base overdraft facility rate charged by our bankers from time to time, compounded monthly until paid; and  

1. may charge you all costs incurred by us in connection with the recovery of the unpaid amounts, including the charges from debt recovery services and legal fees on a solicitor and own client basis. 

1. Restrictions  

1. You agree not to (and to ensure that your Users do not): 

1. use the Fergus Site, App, Service or Content for any purpose that is not authorised by this Agreement or the subscription plan that you have subscribed for, or is otherwise unlawful or fraudulent; 

1. share anything through the Fergus Site, App or the Service that may be offensive or infringes the rights of any person; 

1. use the Fergus Site, App or Service to send outbound emails for marketing purposes; 

1. access or use the Fergus Site, App or Service in any manner that could damage, disable, overburden, or impair the Fergus Site, App or Service, or any Software, accounts, programs, computer systems or networks; 

1. gain unauthorised access to any parts of the Service or any Software, accounts, programs, computer systems or networks; 

1. interfere or attempt to interfere with the proper working of the Fergus Site, App, Service or any Software, accounts, programs, computer systems or networks; 

1. use any robot, spider, scraper or other automated means to access the Service or any Software, accounts, programs computer systems or networks; 

1. modify, copy, adapt, reproduce, disassemble, decompile, reverse engineer or extract the source code of any part of the Fergus Site, App, Service or Content or make derivative works of any Content (including by linking or framing any Content to a third party website); or 

1. resell, lease, or sublicense the Service or Content in any way not expressly permitted by us. 

1. Fergus reserves the right to disable any unauthorised links or frames and disclaims any responsibility for the content available on any other website reached by links to or from the Fergus Site. 

1. Content  

1. The material displayed on, and all content and data accessed, downloaded or otherwise obtained on or through the Fergus Site, the App and/or the Service, including without limitation, all real time or other information, text, materials, graphics, software, tools, results derived from the use of software and tools, advertisements, names, logos and trademarks, but excluding any User Materials (Content) are protected by intellectual property laws. All Intellectual Property Rights, title and interest in and to the Content are owned by Fergus or its third party suppliers or licensors. 

1. User Materials 

1. All User Materials will be (and will remain) owned by you (or your Users or customers, as applicable). However, you grant to us a licence to access, use and disclose your User Materials for the purposes of providing the Service, exercising our rights and performing our obligations under this Agreement, analysing and improving the Fergus Site, App, Service and Content and communicating with you about the Service, your Agreement and any other matters that may be of interest.  We may also disclose your User Materials in connection with a proposed purchase or acquisition of our business or assets, where required by applicable law or any court, or in response to a request by a legitimate law enforcement agency or regulatory body. 

1. You grant to us a non-exclusive royalty free world-wide and irrevocable licence permitting us to copy, anonymize, aggregate, process and display User Materials to derive anonymous statistical and usage data, and data about the Fergus Site, App, Service, Content and your use of them, provided such data cannot be used to identify your Users or any other individual (Anonymous Data). We may combine or incorporate such Anonymous Data with or into other similar data and information available, derived or obtained from other clients, licensees, users, or otherwise e (when so combined or incorporated, referred to as Aggregate Data). We will be the owners of all rights, title and interest in and to the Anonymous Data and Aggregate Data. 

1. You warrant and represent that: 

1. you have the right to grant the rights in clauses 8.1 and 8.2 in respect of all User Materials, and input the User Materials into the Fergus Site or the App in the manner anticipated by the Agreement and the Service; and 

1. use of the User Materials by us, you or any of your Users in the manner anticipated by this Agreement and the Service will not breach any laws or the rights of any person (including the privacy or intellectual property rights of any person). 

1. You are solely responsible for maintaining a copy of all User Materials. We do not make any guarantees around loss or corruption of any User Materials. 

1. We reserve the right to remove or replace, any Content or User Materials from the Fergus Site, App or Service that may expose us to potential liability, if we lose our right to access and use any third party data or if we consider that your continued access to the relevant Content or data may place us in breach of any law or any third party contract. 

1. Free trial 

1. We may offer you a free trial of the Service. Any free trial offered by us will commence on the day that we make the trial service available to you and will end on the last day of the trial period specified on the Fergus Site. You may not register for (or allow any other person to register on your behalf for) any more than one free trial of the Service. If it is determined that you have directly or indirectly obtained access to more than one free trial, we may charge you the relevant fees applicable to the Service provided during your additional trial(s). 

1. At the end of a trial period, we will disable your access to the Service (and will remove your User Material from the Service within 30 days), unless you become a registered user of the Service on a paid basis.  The Fergus Site, App and Service are supplied on an “as is – where is” basis during any trial period, and as such any warranties given by us in these terms of service do not apply. 

1. Third Party Websites, Content, Products and Services 

1. The Fergus Site provides links to websites and access to content, products and services of third parties, including other users, advertisers, affiliates and sponsors of the Fergus Site and App. Fergus is not responsible for third party content provided on or through the Fergus Site or the App and you bear all risks associated with the access and use of such websites and third party content, products and services. 

1. Term and Termination  

1. The term of your Agreement with us commences on the first day you access the Service and continues until either Fergus or you terminate this Agreement in accordance with these terms of service. 

1. We may terminate this Agreement (and the plan you have subscribed for) at any time by providing you with written notice (by email).  

1. You may terminate this Agreement (and cancel the plan you have subscribed for) at any time by providing us with written notice (by email). You will still need to pay all applicable Fees up to and including the  end of the month in which you terminate this Agreement. 

1. We may terminate this Agreement (and cancel the plan you have subscribed for) or limit your access to or use of the App, Service or any Content immediately, by notice to you, if: 

1. you (or any of your Users) breach any term of this Agreement; 

1. you fail to pay any Fees by the due date for payment; or 

1. you become insolvent, make any arrangement with your creditors, go into liquidation, have a receiver appointed over any of your assets, or are subject to any similar insolvency event in any jurisdiction. 

1. You may terminate this Agreement (and cancel the plan you have subscribed for), by notice in writing to us, immediately if: 

1. we fail to comply with any material term of this Agreement and do not remedy the breach within 20 days of receiving notice of the breach from you; or 

1. we become insolvent, make any arrangement with our creditors, go into liquidation, have a receiver appointed over any of our assets, or are subject to any similar insolvency event in any jurisdiction. 

1. If we terminate under clause 11.2 or you terminate under clause 11.5, we may provide you with a refund of any Fees paid you in advance that relate to the period after termination. Otherwise, no refunds of Fees will be available on termination of this Agreement. 

1. We may also suspend or limit your access to the Fergus Site or the App at any time for such time as is necessary to carry out maintenance. 

1. Upon termination of this Agreement between us (for any reason), you must (and must ensure your Users) immediately cease to access or use the Service and Fergus may remove all of your User Material from the Service.  

1. Disclaimers 

1. We will use our commercially reasonable efforts to ensure that the Service is accessible by you and your Users in accordance with this Agreement. 

1. In the event of any breach of clause 12.1 or any other term, condition or warranty that Fergus is unable to exclude by law, your sole remedy will be (at our option) the resupply of the non-conforming Service within a commercially reasonable time or a refund of the Fees paid by you for such non-conforming Service. 

1. Other than as expressly provided in clause 12.1 above, the Fergus Site, the App, the Service and all Content provided on or through the Service, are provided on an “as is” and “as available” basis. Fergus expressly disclaims all warranties or terms of any kind, whether express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose and non-infringement with respect to all Content provided on or through the Fergus Site. Fergus makes no warranty that the Service will meet your requirements or will be available on an uninterrupted error-free basis. As the Service uses artificial intelligence to assist in preparing the Content, we do not provide any warranties in respect of the accuracy, completeness, timeliness or supply of any Content. 

1. Despite any other provision to the contrary in this Agreement, we will not under any circumstances be liable to you, any User or any third party in respect of the accuracy of any Content or your use or reliance on any Content created by or derived from the Service, including any decisions you make in respect of your business or employees arising from the use of the Service or Content, which remains your sole responsibility. In particular, you acknowledge that Fergus uses artificial intelligence systems to assist in providing the Service and the Content that you receive from the Service. Given the nature of artificial intelligence and machine learning systems and reliance on third parties to input accurate and complete information into the Service, use of the Service may result in incorrect or incomplete data being included in the Service or the Content. 

1. You acknowledge and agree that you shall comply (in all respects) with any restrictions of use in any agreement entered into in respect of any third party software (including any artificial intelligence software) used in connection with (or incorporated into) the Service, as notified by us. 

1. Fergus reserves the right to monitor your use of the Fergus Site, App, Service and Content at any time without notice. 

1. Limitation of Liability 

1. To the extent we do become liable to you in connection with this Agreement and/or the Service, then all claims by you against us are, to the extent permitted by law, limited in aggregate to the Fees paid by you in the first year of the term of this Agreement, unless such liability has arisen as a sole and direct result of our  fraud. 

1. You will indemnify us for any loss, damage or costs incurred by us from any claim (including a claim by any of our suppliers, partners or licensors), where the relevant claim arises from: (i) your (or any of your Users) unauthorised use or disclosure of the Service or Content; (ii) any inaccuracy in, or incompleteness of, any User Materials; or (iii) any breach by you (or any of your Users) of clause 6.1 or the warranties in clause 8.3. 

1. Except in respect of any liability under the indemnity in clause 13.2, under no circumstances will either you or we (or any of our third party licensors or suppliers), or any of their directors, officers or employees, be liable, whether in contract, equity, tort (including negligence, breach of statutory duty or otherwise) or any other theory of liability for any direct or indirect loss of profits, loss of revenue, loss of User Materials, loss of anticipated savings; or for any indirect, special or consequential loss whatsoever. 

1. Privacy 

1. We collect and process the Personal Information of your Users and customer when you (or your Users, as applicable) access or use the Website, the App and/or the Service. We may also collect certain information about the performance of the Website, App and Service and your (and your Users’) use of the Website, App, Services and/or Content.  

1. You must ensure that your Users are aware of and read the Privacy Policy. 

1. Our access to and use of all such Personal Information is governed by our Privacy Policy. By agreeing to this Agreement, you agree to the way we handle your (and your Users’ and customers) personal information, as specified in (and anticipated by) these terms of use and our Privacy Policy.  

1. You must comply with all Data Privacy Laws in connection with your collection, use and disclosure of the personal information of any person. You will not (and will ensure your Users do not) use the Service: (i) to collect personal information about third parties other than as anticipated by the Service; or (ii) in a way that violates (or may be considered inconsistent with) the privacy of any person. This includes, if you are located (or a company registered) in the United Kingdom, complying with the data processing addendum (in the form available at [link), which shall form part of your Agreement with us) 

1. You warrant that you have obtained all necessary consents and approvals from all individuals (including your Users) to ensure that we are able to lawfully process all personal information of such persons in the manner specified in (and anticipated by) this Agreement and the Service. 

1. You will, upon becoming aware of a Security incident, or any other breach, or suspected breach, of your security safeguards, notify us without undue delay and shall provide timely information relating to the Security Incident as it becomes known or as is reasonably requested by us. 

1. Intellectual Property Rights 

1. You acknowledge that Fergus owns all Intellectual Property Rights in the Fergus Site, the App, the Service, the Software and the Content, and nothing in this Agreement constitutes a transfer of any such Intellectual Property Rights to you. 

1. You must not directly or indirectly do anything that would or might invalidate or put in dispute Fergus' Intellectual Property Rights in the Fergus Site, the App, the Service, the Software and the Content (including any of the Fergus registered or unregistered trademarks). 

1. You must comply with Fergus' reasonable usage guidelines and directions with respect to the Fergus Site, the App, the Service, the Software and the Content as notified to you from time to time. 

1. If, you or any of your Users send us any comment, feedback, submission, creative idea, suggestion, proposal, plan, or other material, by any means (Comment), you agree that we may use any Comment for any purpose, without restriction, and shall be under no obligation to maintain any Comment in confidence or respond to any Comment. 

1. Confidentiality 

1. A party must not, without the prior written consent of the other, use or disclose the other party’s Confidential Information unless expressly permitted by this Agreement or required to do so by law or any regulatory authority. 

1. A party may: 

1. use the Confidential Information of the other party solely for the purposes of complying with its obligations and exercising its rights under this Agreement; and 

1. disclose the Confidential Information of the other party to its personnel or advisers to the extent necessary for them to know the information for purposes related to this Agreement, but only if reasonable steps are taken to ensure that the confidentiality of the information is retained. 

1. Apple and Google terms 

1. For the purposes of this clause 17.1: 

Apple means Apple Inc and other companies within its group. 

Apple Store means the store/platform operated by Apple making the App available to iOS devices.  

Google means Alphabet Inc and other companies within its group. 

Google Play Store means the store/platform operated by Google making the App available to Android devices. 

1. You acknowledge and agree that: 

1. where the App is downloaded from the Apple Store: 

1. your rights to install and use the App are subject to these Terms of Use and the relevant terms in the Apple Store terms of service; 

1. Apple is not responsible for the App in any way, including for any maintenance or support of the App; 

1. to the maximum extent permitted by law, Apple has no warranty obligations with respect to the App; 

1. we (and not Apple) are responsible for addressing any claims by you or a third party in connection with the App (including any claims by a third party that the App breaches that persons intellectual property rights); and 

1. though this agreement is entered into between us and you, Apple, as a third party beneficiary under this agreement, will have the right to enforce these Terms of Use against you. 

1. Where the App is downloaded from the Google Play Store: 

1. your rights to install and use the App are subject to these Terms of Use and the relevant terms in the Google Play Store terms of service; 

1. Google is not responsible for the App in any way, including any maintenance or support of the App; and 

1. we (and not Google) are responsible for addressing any claims by you or a third party in connection with the App (including any claims by a third party that the App breaches that persons intellectual property rights). 

1. For the benefit of each of us, Apple and Google, you represent and warrant that you are not, and will not, be located in any country that is the subject of a US Government embargo or that has been designated by the US Government as a “terrorist supporting” country and that you are not listed on any US Government list of prohibited or restricted parties. 

1. Fergus Pay 

18.1 We have arranged for Stripe to collect any funds due to you from the selling of your goods and services via Fergus Pay. By using Fergus Pay and accepting the funds collected on your behalf by Stripe, you agree to the terms of the Fergus Pay Agreement, a copy of which can be obtained here. 

1. General 

19.1 The use of the Fergus Site, App and Service and this Agreement shall be governed by the laws of the country in which the Fergus entity that you are contracting with is registered and you agree to submit to the exclusive jurisdiction of the courts of that country in respect of any disputes or claims arising out of or in connection with this agreement or the Service.  

19.2 Neither party shall be liable for any delay or failure to fulfil its obligations under this Agreement arising directly or indirectly from any circumstance beyond the reasonable control of the affected party (including, without limitation, acts of God, flood, earthquake, storm, fire, epidemic, pandemic, war, embargoes, riot or civil disturbance), provided that the affected party shall notify the other party as soon as practicable of the events and use its reasonable endeavours to continue to perform its obligations and mitigate the effects of the event. 

19.3 You must not assign, sub-licence or otherwise deal in any similar way with any of your rights under this Agreement without the prior written consent of Fergus. 

19.4 Nothing contained in this Agreement creates any relationship of partnership or agency between the parties. 

19.5 If a provision of this Agreement is invalid or unenforceable it is to be read down or severed to the extent necessary, without affecting the validity or enforceability of the remaining provisions. 

1. Contacting Fergus 

20.1 You can contact Fergus via email at support@fergus.com  

FERGUS: TERMS OF SERVICE 

By accessing any Fergus Site or the App, you agree to be bound by these terms and conditions, which together with our Privacy Policy, form a binding agreement between you and us (Agreement). If you do not agree to these terms and conditions then you should not access the Fergus Site or download the App. 

If you are accessing the Service on behalf of a Customer, you confirm that you have the authority to act on behalf of that entity. 

From time to time we may need to make changes to these terms of service. We will notify you of any by posting them on the Fergus Site or by emailing you, and you agree by continuing to access or use the Fergus Site and/or the App to be bound by the updated terms. 

1. Definitions 

1. Unless the context requires otherwise: 

“Account” means an account registered by a Customer through the Fergus Site or the App, which enables the Customer (and its Users) to access and use the Service. 

“App” means the Fergus online application (available via the Apple Store or Google Play Store) through which the Service may be accessed. 

“Confidential Information” means all information provided by one party to the other in connection with this Agreement where such information is identified as confidential at the time of its disclosure or ought reasonably be considered confidential based on its content, nature or the manner of its disclosure, but excludes: 

1. information that enters the public domain or is disclosed to a party by a third party, other than through a breach of this Agreement, and 

1. information developed independently by a party. 

“Content” has the meaning given to it in clause 7.1. 

“Customer”, “you” or “your” means any person who registers to access and use the Service, and in whose name the Account is created.  

“Data Privacy Laws” means the privacy laws that either you or we are legally obliged to comply with, including (as applicable), the NZ Privacy Act 2020, the Australian Privacy Act 1988, General Data Protection Regulation (EU) 2016/679 (EU GDPR) and/or the United Kingdom Data Protection Regulation (UK GDPR). 

“Fees” means all fees payable by you to Fergus (including but not limited to, subscription fees, training fees, licensing fees and service based fees), as specified on the Website or as otherwise agreed in writing by Fergus with you. 

“Fergus”, “we”, “our” or “us” means the Fergus entity that you contract with pursuant to these terms of service. This will be: 

1. if you are located (or a company registered) in Australia; Fergus Software Pty Limited (ACN 605 226 417)); or 

1. if you are located (or a company registered) in the United Kingdom, Fergus Software Systems (UK) Limited; or 

1. if you are located (or a company registered) elsewhere, Fergus Software Limited in New Zealand (NZBN 9429031078085). 

 

“Fergus Site” means the Fergus website (www.fergus.com), or any other such website that supersedes it in the future. 

“Intellectual Property Rights” means all intellectual property rights, including all copyright, moral rights, patents, trademarks, design rights, trade secrets, domain names, know how and other rights of a similar nature, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application. 

“Privacy Policy” means the Fergus Privacy Policy (as updated from time to time), available at https://fergus.com/privacy-policy/. 

“Service” means the job management Service made available by Fergus through the Fergus Site and/or the App, including but not limited to its customer retention management and work management software and its mobile applications.   

“Software” means the Fergus software and other third party software (including artificial intelligence systems) used by Fergus to provide the Service. 

“User” means any of your personnel, contractors (or other third parties) that access and use the Service on your behalf or otherwise input User Materials into the Service in connection with your Account. 

“User Materials” means: 

1. any and all information, data, documents, images, photos and videos (including Account registration information and your customer information) that you or your Users input into the Service or otherwise make available to Fergus (including via the Website or the App); and 

1. any and all data that relates to you or your Users that a third party (for example, a supplier of trade materials) inputs into the Service for you in connection with your Account, 

but for clarity, excludes any Content. 

1. Service 

1. Subject to compliance by you with this Agreement we grant to you and you accept from us, a non-exclusive, non-transferable and non-assignable right for you (and your Users) to access and use the Service during the Term in accordance with this Agreement. 

1. If you wish to access and use the App and the Service, you must become a registered user and activate an Account via the Fergus Site. 

1. You warrant that all User Materials you (or your Users or other third parties) supply to us or input into the Service is accurate, complete and up to date. You acknowledge that the Service (and the accuracy, completeness and reliability of the outputs you receive from it) depends entirely on the accuracy and completeness of all User Materials inputted into the Service.   

1. Users 

1. Access to and use of password protected or secure areas of the Fergus Site, App and Service are restricted to you and your Users only. You are responsible for keeping all your access information for the App and the Service, including email addresses and log-on credentials, secret and secure, and agree: 

1. to ensure that each User only accesses and used the Service in accordance with the relevant licence granted to that User; 

1. not to disclose and to ensure that Users do not disclose their user name or log-on credentials to any other person; 

1. to ensure that none of your Users (or any other person under your control) attempts to gain unauthorised access to the App, Service or Content; and 

1. to inform us immediately of any known or suspected unauthorised access to and use of the App, Service or Content. 

1. You must notify each User of the terms of this Agreement and ensure that each of them strictly comply with these terms.  You shall be responsible (and liable) for any failure of any User to comply with the terms of this Agreement (as if it were a breach by you of this Agreement). 

1. Fees 

1. In consideration of your (and your Users’) use of the Service, you will pay us the Fees.  

1. Our Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties. If we are required to pay or collect any goods and services or value-added tax on any Fees charged under this Agreement, then such taxes and/or duties will be billed to and paid by you. 

1. Unless otherwise stated in your billing plan, Fergus charges the Fees on a per user basis with a plan type base. It solely up to you to maintain your own plan, type, user levels and other Fergus products used via the Fergus software. 

1. We may, from time to time, cancel the continued availability of any subscription package. However, we will provide you with advance notice of any such cancellation.  

1. Fees are subject to change, provided that you will be given advance notice of any impending Fee changes in accordance with this Agreement.' 

1. Payment 

1. Fees shall be payable by credit card. Credit card transactions are securely processed by third-party providers indicated when your credit card is entered, and are subject to the third-party providers terms of service available on their website. The third-party providers are solely responsible for such transactions and we exclude all liability for such transactions to the extent not restricted by law. The third-party providers maintain administrative, technical, and physical procedures to protect information stored on its servers, as outlined within its own privacy policy.   

1. If you do not pay the Fees on the due date for payment (including where your payment has been dishonoured), we: 

1. will suspend access to the Service if payment is not made in full of all amounts due and owing to us within 14 days of invoice date; 

1. may charge interest on the unpaid amount from the due date until the date of actual payment at 2% per annum over the base overdraft facility rate charged by our bankers from time to time, compounded monthly until paid; and  

1. may charge you all costs incurred by us in connection with the recovery of the unpaid amounts, including the charges from debt recovery services and legal fees on a solicitor and own client basis. 

1. Restrictions  

1. You agree not to (and to ensure that your Users do not): 

1. use the Fergus Site, App, Service or Content for any purpose that is not authorised by this Agreement or the subscription plan that you have subscribed for, or is otherwise unlawful or fraudulent; 

1. share anything through the Fergus Site, App or the Service that may be offensive or infringes the rights of any person; 

1. use the Fergus Site, App or Service to send outbound emails for marketing purposes; 

1. access or use the Fergus Site, App or Service in any manner that could damage, disable, overburden, or impair the Fergus Site, App or Service, or any Software, accounts, programs, computer systems or networks; 

1. gain unauthorised access to any parts of the Service or any Software, accounts, programs, computer systems or networks; 

1. interfere or attempt to interfere with the proper working of the Fergus Site, App, Service or any Software, accounts, programs, computer systems or networks; 

1. use any robot, spider, scraper or other automated means to access the Service or any Software, accounts, programs computer systems or networks; 

1. modify, copy, adapt, reproduce, disassemble, decompile, reverse engineer or extract the source code of any part of the Fergus Site, App, Service or Content or make derivative works of any Content (including by linking or framing any Content to a third party website); or 

1. resell, lease, or sublicense the Service or Content in any way not expressly permitted by us. 

1. Fergus reserves the right to disable any unauthorised links or frames and disclaims any responsibility for the content available on any other website reached by links to or from the Fergus Site. 

1. Content  

1. The material displayed on, and all content and data accessed, downloaded or otherwise obtained on or through the Fergus Site, the App and/or the Service, including without limitation, all real time or other information, text, materials, graphics, software, tools, results derived from the use of software and tools, advertisements, names, logos and trademarks, but excluding any User Materials (Content) are protected by intellectual property laws. All Intellectual Property Rights, title and interest in and to the Content are owned by Fergus or its third party suppliers or licensors. 

1. User Materials 

1. All User Materials will be (and will remain) owned by you (or your Users or customers, as applicable). However, you grant to us a licence to access, use and disclose your User Materials for the purposes of providing the Service, exercising our rights and performing our obligations under this Agreement, analysing and improving the Fergus Site, App, Service and Content and communicating with you about the Service, your Agreement and any other matters that may be of interest.  We may also disclose your User Materials in connection with a proposed purchase or acquisition of our business or assets, where required by applicable law or any court, or in response to a request by a legitimate law enforcement agency or regulatory body. 

1. You grant to us a non-exclusive royalty free world-wide and irrevocable licence permitting us to copy, anonymize, aggregate, process and display User Materials to derive anonymous statistical and usage data, and data about the Fergus Site, App, Service, Content and your use of them, provided such data cannot be used to identify your Users or any other individual (Anonymous Data). We may combine or incorporate such Anonymous Data with or into other similar data and information available, derived or obtained from other clients, licensees, users, or otherwise e (when so combined or incorporated, referred to as Aggregate Data). We will be the owners of all rights, title and interest in and to the Anonymous Data and Aggregate Data. 

1. You warrant and represent that: 

1. you have the right to grant the rights in clauses 8.1 and 8.2 in respect of all User Materials, and input the User Materials into the Fergus Site or the App in the manner anticipated by the Agreement and the Service; and 

1. use of the User Materials by us, you or any of your Users in the manner anticipated by this Agreement and the Service will not breach any laws or the rights of any person (including the privacy or intellectual property rights of any person). 

1. You are solely responsible for maintaining a copy of all User Materials. We do not make any guarantees around loss or corruption of any User Materials. 

1. We reserve the right to remove or replace, any Content or User Materials from the Fergus Site, App or Service that may expose us to potential liability, if we lose our right to access and use any third party data or if we consider that your continued access to the relevant Content or data may place us in breach of any law or any third party contract. 

1. Free trial 

1. We may offer you a free trial of the Service. Any free trial offered by us will commence on the day that we make the trial service available to you and will end on the last day of the trial period specified on the Fergus Site. You may not register for (or allow any other person to register on your behalf for) any more than one free trial of the Service. If it is determined that you have directly or indirectly obtained access to more than one free trial, we may charge you the relevant fees applicable to the Service provided during your additional trial(s). 

1. At the end of a trial period, we will disable your access to the Service (and will remove your User Material from the Service within 30 days), unless you become a registered user of the Service on a paid basis.  The Fergus Site, App and Service are supplied on an “as is – where is” basis during any trial period, and as such any warranties given by us in these terms of service do not apply. 

1. Third Party Websites, Content, Products and Services 

1. The Fergus Site provides links to websites and access to content, products and services of third parties, including other users, advertisers, affiliates and sponsors of the Fergus Site and App. Fergus is not responsible for third party content provided on or through the Fergus Site or the App and you bear all risks associated with the access and use of such websites and third party content, products and services. 

1. Term and Termination  

1. The term of your Agreement with us commences on the first day you access the Service and continues until either Fergus or you terminate this Agreement in accordance with these terms of service. 

1. We may terminate this Agreement (and the plan you have subscribed for) at any time by providing you with written notice (by email).  

1. You may terminate this Agreement (and cancel the plan you have subscribed for) at any time by providing us with written notice (by email). You will still need to pay all applicable Fees up to and including the  end of the month in which you terminate this Agreement. 

1. We may terminate this Agreement (and cancel the plan you have subscribed for) or limit your access to or use of the App, Service or any Content immediately, by notice to you, if: 

1. you (or any of your Users) breach any term of this Agreement; 

1. you fail to pay any Fees by the due date for payment; or 

1. you become insolvent, make any arrangement with your creditors, go into liquidation, have a receiver appointed over any of your assets, or are subject to any similar insolvency event in any jurisdiction. 

1. You may terminate this Agreement (and cancel the plan you have subscribed for), by notice in writing to us, immediately if: 

1. we fail to comply with any material term of this Agreement and do not remedy the breach within 20 days of receiving notice of the breach from you; or 

1. we become insolvent, make any arrangement with our creditors, go into liquidation, have a receiver appointed over any of our assets, or are subject to any similar insolvency event in any jurisdiction. 

1. If we terminate under clause 11.2 or you terminate under clause 11.5, we may provide you with a refund of any Fees paid you in advance that relate to the period after termination. Otherwise, no refunds of Fees will be available on termination of this Agreement. 

1. We may also suspend or limit your access to the Fergus Site or the App at any time for such time as is necessary to carry out maintenance. 

1. Upon termination of this Agreement between us (for any reason), you must (and must ensure your Users) immediately cease to access or use the Service and Fergus may remove all of your User Material from the Service.  

1. Disclaimers 

1. We will use our commercially reasonable efforts to ensure that the Service is accessible by you and your Users in accordance with this Agreement. 

1. In the event of any breach of clause 12.1 or any other term, condition or warranty that Fergus is unable to exclude by law, your sole remedy will be (at our option) the resupply of the non-conforming Service within a commercially reasonable time or a refund of the Fees paid by you for such non-conforming Service. 

1. Other than as expressly provided in clause 12.1 above, the Fergus Site, the App, the Service and all Content provided on or through the Service, are provided on an “as is” and “as available” basis. Fergus expressly disclaims all warranties or terms of any kind, whether express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose and non-infringement with respect to all Content provided on or through the Fergus Site. Fergus makes no warranty that the Service will meet your requirements or will be available on an uninterrupted error-free basis. As the Service uses artificial intelligence to assist in preparing the Content, we do not provide any warranties in respect of the accuracy, completeness, timeliness or supply of any Content. 

1. Despite any other provision to the contrary in this Agreement, we will not under any circumstances be liable to you, any User or any third party in respect of the accuracy of any Content or your use or reliance on any Content created by or derived from the Service, including any decisions you make in respect of your business or employees arising from the use of the Service or Content, which remains your sole responsibility. In particular, you acknowledge that Fergus uses artificial intelligence systems to assist in providing the Service and the Content that you receive from the Service. Given the nature of artificial intelligence and machine learning systems and reliance on third parties to input accurate and complete information into the Service, use of the Service may result in incorrect or incomplete data being included in the Service or the Content. 

1. You acknowledge and agree that you shall comply (in all respects) with any restrictions of use in any agreement entered into in respect of any third party software (including any artificial intelligence software) used in connection with (or incorporated into) the Service, as notified by us. 

1. Fergus reserves the right to monitor your use of the Fergus Site, App, Service and Content at any time without notice. 

1. Limitation of Liability 

1. To the extent we do become liable to you in connection with this Agreement and/or the Service, then all claims by you against us are, to the extent permitted by law, limited in aggregate to the Fees paid by you in the first year of the term of this Agreement, unless such liability has arisen as a sole and direct result of our  fraud. 

1. You will indemnify us for any loss, damage or costs incurred by us from any claim (including a claim by any of our suppliers, partners or licensors), where the relevant claim arises from: (i) your (or any of your Users) unauthorised use or disclosure of the Service or Content; (ii) any inaccuracy in, or incompleteness of, any User Materials; or (iii) any breach by you (or any of your Users) of clause 6.1 or the warranties in clause 8.3. 

1. Except in respect of any liability under the indemnity in clause 13.2, under no circumstances will either you or we (or any of our third party licensors or suppliers), or any of their directors, officers or employees, be liable, whether in contract, equity, tort (including negligence, breach of statutory duty or otherwise) or any other theory of liability for any direct or indirect loss of profits, loss of revenue, loss of User Materials, loss of anticipated savings; or for any indirect, special or consequential loss whatsoever. 

1. Privacy 

1. We collect and process the Personal Information of your Users and customer when you (or your Users, as applicable) access or use the Website, the App and/or the Service. We may also collect certain information about the performance of the Website, App and Service and your (and your Users’) use of the Website, App, Services and/or Content.  

1. You must ensure that your Users are aware of and read the Privacy Policy. 

1. Our access to and use of all such Personal Information is governed by our Privacy Policy. By agreeing to this Agreement, you agree to the way we handle your (and your Users’ and customers) personal information, as specified in (and anticipated by) these terms of use and our Privacy Policy.  

1. You must comply with all Data Privacy Laws in connection with your collection, use and disclosure of the personal information of any person. You will not (and will ensure your Users do not) use the Service: (i) to collect personal information about third parties other than as anticipated by the Service; or (ii) in a way that violates (or may be considered inconsistent with) the privacy of any person. This includes, if you are located (or a company registered) in the United Kingdom, complying with the data processing addendum (in the form available at [link), which shall form part of your Agreement with us) 

1. You warrant that you have obtained all necessary consents and approvals from all individuals (including your Users) to ensure that we are able to lawfully process all personal information of such persons in the manner specified in (and anticipated by) this Agreement and the Service. 

1. You will, upon becoming aware of a Security incident, or any other breach, or suspected breach, of your security safeguards, notify us without undue delay and shall provide timely information relating to the Security Incident as it becomes known or as is reasonably requested by us. 

1. Intellectual Property Rights 

1. You acknowledge that Fergus owns all Intellectual Property Rights in the Fergus Site, the App, the Service, the Software and the Content, and nothing in this Agreement constitutes a transfer of any such Intellectual Property Rights to you. 

1. You must not directly or indirectly do anything that would or might invalidate or put in dispute Fergus' Intellectual Property Rights in the Fergus Site, the App, the Service, the Software and the Content (including any of the Fergus registered or unregistered trademarks). 

1. You must comply with Fergus' reasonable usage guidelines and directions with respect to the Fergus Site, the App, the Service, the Software and the Content as notified to you from time to time. 

1. If, you or any of your Users send us any comment, feedback, submission, creative idea, suggestion, proposal, plan, or other material, by any means (Comment), you agree that we may use any Comment for any purpose, without restriction, and shall be under no obligation to maintain any Comment in confidence or respond to any Comment. 

1. Confidentiality 

1. A party must not, without the prior written consent of the other, use or disclose the other party’s Confidential Information unless expressly permitted by this Agreement or required to do so by law or any regulatory authority. 

1. A party may: 

1. use the Confidential Information of the other party solely for the purposes of complying with its obligations and exercising its rights under this Agreement; and 

1. disclose the Confidential Information of the other party to its personnel or advisers to the extent necessary for them to know the information for purposes related to this Agreement, but only if reasonable steps are taken to ensure that the confidentiality of the information is retained. 

1. Apple and Google terms 

1. For the purposes of this clause 17.1: 

Apple means Apple Inc and other companies within its group. 

Apple Store means the store/platform operated by Apple making the App available to iOS devices.  

Google means Alphabet Inc and other companies within its group. 

Google Play Store means the store/platform operated by Google making the App available to Android devices. 

1. You acknowledge and agree that: 

1. where the App is downloaded from the Apple Store: 

1. your rights to install and use the App are subject to these Terms of Use and the relevant terms in the Apple Store terms of service; 

1. Apple is not responsible for the App in any way, including for any maintenance or support of the App; 

1. to the maximum extent permitted by law, Apple has no warranty obligations with respect to the App; 

1. we (and not Apple) are responsible for addressing any claims by you or a third party in connection with the App (including any claims by a third party that the App breaches that persons intellectual property rights); and 

1. though this agreement is entered into between us and you, Apple, as a third party beneficiary under this agreement, will have the right to enforce these Terms of Use against you. 

1. Where the App is downloaded from the Google Play Store: 

1. your rights to install and use the App are subject to these Terms of Use and the relevant terms in the Google Play Store terms of service; 

1. Google is not responsible for the App in any way, including any maintenance or support of the App; and 

1. we (and not Google) are responsible for addressing any claims by you or a third party in connection with the App (including any claims by a third party that the App breaches that persons intellectual property rights). 

1. For the benefit of each of us, Apple and Google, you represent and warrant that you are not, and will not, be located in any country that is the subject of a US Government embargo or that has been designated by the US Government as a “terrorist supporting” country and that you are not listed on any US Government list of prohibited or restricted parties. 

1. Fergus Pay 

18.1 We have arranged for Stripe to collect any funds due to you from the selling of your goods and services via Fergus Pay. By using Fergus Pay and accepting the funds collected on your behalf by Stripe, you agree to the terms of the Fergus Pay Agreement, a copy of which can be obtained here. 

1. General 

19.1 The use of the Fergus Site, App and Service and this Agreement shall be governed by the laws of the country in which the Fergus entity that you are contracting with is registered and you agree to submit to the exclusive jurisdiction of the courts of that country in respect of any disputes or claims arising out of or in connection with this agreement or the Service.  

19.2 Neither party shall be liable for any delay or failure to fulfil its obligations under this Agreement arising directly or indirectly from any circumstance beyond the reasonable control of the affected party (including, without limitation, acts of God, flood, earthquake, storm, fire, epidemic, pandemic, war, embargoes, riot or civil disturbance), provided that the affected party shall notify the other party as soon as practicable of the events and use its reasonable endeavours to continue to perform its obligations and mitigate the effects of the event. 

19.3 You must not assign, sub-licence or otherwise deal in any similar way with any of your rights under this Agreement without the prior written consent of Fergus. 

19.4 Nothing contained in this Agreement creates any relationship of partnership or agency between the parties. 

19.5 If a provision of this Agreement is invalid or unenforceable it is to be read down or severed to the extent necessary, without affecting the validity or enforceability of the remaining provisions. 

1. Contacting Fergus 

20.1 You can contact Fergus via email at support@fergus.com  

FERGUS: TERMS OF SERVICE 

By accessing any Fergus Site or the App, you agree to be bound by these terms and conditions, which together with our Privacy Policy, form a binding agreement between you and us (Agreement). If you do not agree to these terms and conditions then you should not access the Fergus Site or download the App. 

If you are accessing the Service on behalf of a Customer, you confirm that you have the authority to act on behalf of that entity. 

From time to time we may need to make changes to these terms of service. We will notify you of any by posting them on the Fergus Site or by emailing you, and you agree by continuing to access or use the Fergus Site and/or the App to be bound by the updated terms. 

1. Definitions 

1. Unless the context requires otherwise: 

“Account” means an account registered by a Customer through the Fergus Site or the App, which enables the Customer (and its Users) to access and use the Service. 

“App” means the Fergus online application (available via the Apple Store or Google Play Store) through which the Service may be accessed. 

“Confidential Information” means all information provided by one party to the other in connection with this Agreement where such information is identified as confidential at the time of its disclosure or ought reasonably be considered confidential based on its content, nature or the manner of its disclosure, but excludes: 

1. information that enters the public domain or is disclosed to a party by a third party, other than through a breach of this Agreement, and 

1. information developed independently by a party. 

“Content” has the meaning given to it in clause 7.1. 

“Customer”, “you” or “your” means any person who registers to access and use the Service, and in whose name the Account is created.  

“Data Privacy Laws” means the privacy laws that either you or we are legally obliged to comply with, including (as applicable), the NZ Privacy Act 2020, the Australian Privacy Act 1988, General Data Protection Regulation (EU) 2016/679 (EU GDPR) and/or the United Kingdom Data Protection Regulation (UK GDPR). 

“Fees” means all fees payable by you to Fergus (including but not limited to, subscription fees, training fees, licensing fees and service based fees), as specified on the Website or as otherwise agreed in writing by Fergus with you. 

“Fergus”, “we”, “our” or “us” means the Fergus entity that you contract with pursuant to these terms of service. This will be: 

1. if you are located (or a company registered) in Australia; Fergus Software Pty Limited (ACN 605 226 417)); or 

1. if you are located (or a company registered) in the United Kingdom, Fergus Software Systems (UK) Limited; or 

1. if you are located (or a company registered) elsewhere, Fergus Software Limited in New Zealand (NZBN 9429031078085). 

 

“Fergus Site” means the Fergus website (www.fergus.com), or any other such website that supersedes it in the future. 

“Intellectual Property Rights” means all intellectual property rights, including all copyright, moral rights, patents, trademarks, design rights, trade secrets, domain names, know how and other rights of a similar nature, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application. 

“Privacy Policy” means the Fergus Privacy Policy (as updated from time to time), available at https://fergus.com/privacy-policy/. 

“Service” means the job management Service made available by Fergus through the Fergus Site and/or the App, including but not limited to its customer retention management and work management software and its mobile applications.   

“Software” means the Fergus software and other third party software (including artificial intelligence systems) used by Fergus to provide the Service. 

“User” means any of your personnel, contractors (or other third parties) that access and use the Service on your behalf or otherwise input User Materials into the Service in connection with your Account. 

“User Materials” means: 

1. any and all information, data, documents, images, photos and videos (including Account registration information and your customer information) that you or your Users input into the Service or otherwise make available to Fergus (including via the Website or the App); and 

1. any and all data that relates to you or your Users that a third party (for example, a supplier of trade materials) inputs into the Service for you in connection with your Account, 

but for clarity, excludes any Content. 

1. Service 

1. Subject to compliance by you with this Agreement we grant to you and you accept from us, a non-exclusive, non-transferable and non-assignable right for you (and your Users) to access and use the Service during the Term in accordance with this Agreement. 

1. If you wish to access and use the App and the Service, you must become a registered user and activate an Account via the Fergus Site. 

1. You warrant that all User Materials you (or your Users or other third parties) supply to us or input into the Service is accurate, complete and up to date. You acknowledge that the Service (and the accuracy, completeness and reliability of the outputs you receive from it) depends entirely on the accuracy and completeness of all User Materials inputted into the Service.   

1. Users 

1. Access to and use of password protected or secure areas of the Fergus Site, App and Service are restricted to you and your Users only. You are responsible for keeping all your access information for the App and the Service, including email addresses and log-on credentials, secret and secure, and agree: 

1. to ensure that each User only accesses and used the Service in accordance with the relevant licence granted to that User; 

1. not to disclose and to ensure that Users do not disclose their user name or log-on credentials to any other person; 

1. to ensure that none of your Users (or any other person under your control) attempts to gain unauthorised access to the App, Service or Content; and 

1. to inform us immediately of any known or suspected unauthorised access to and use of the App, Service or Content. 

1. You must notify each User of the terms of this Agreement and ensure that each of them strictly comply with these terms.  You shall be responsible (and liable) for any failure of any User to comply with the terms of this Agreement (as if it were a breach by you of this Agreement). 

1. Fees 

1. In consideration of your (and your Users’) use of the Service, you will pay us the Fees.  

1. Our Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties. If we are required to pay or collect any goods and services or value-added tax on any Fees charged under this Agreement, then such taxes and/or duties will be billed to and paid by you. 

1. Unless otherwise stated in your billing plan, Fergus charges the Fees on a per user basis with a plan type base. It solely up to you to maintain your own plan, type, user levels and other Fergus products used via the Fergus software. 

1. We may, from time to time, cancel the continued availability of any subscription package. However, we will provide you with advance notice of any such cancellation.  

1. Fees are subject to change, provided that you will be given advance notice of any impending Fee changes in accordance with this Agreement.' 

1. Payment 

1. Fees shall be payable by credit card. Credit card transactions are securely processed by third-party providers indicated when your credit card is entered, and are subject to the third-party providers terms of service available on their website. The third-party providers are solely responsible for such transactions and we exclude all liability for such transactions to the extent not restricted by law. The third-party providers maintain administrative, technical, and physical procedures to protect information stored on its servers, as outlined within its own privacy policy.   

1. If you do not pay the Fees on the due date for payment (including where your payment has been dishonoured), we: 

1. will suspend access to the Service if payment is not made in full of all amounts due and owing to us within 14 days of invoice date; 

1. may charge interest on the unpaid amount from the due date until the date of actual payment at 2% per annum over the base overdraft facility rate charged by our bankers from time to time, compounded monthly until paid; and  

1. may charge you all costs incurred by us in connection with the recovery of the unpaid amounts, including the charges from debt recovery services and legal fees on a solicitor and own client basis. 

1. Restrictions  

1. You agree not to (and to ensure that your Users do not): 

1. use the Fergus Site, App, Service or Content for any purpose that is not authorised by this Agreement or the subscription plan that you have subscribed for, or is otherwise unlawful or fraudulent; 

1. share anything through the Fergus Site, App or the Service that may be offensive or infringes the rights of any person; 

1. use the Fergus Site, App or Service to send outbound emails for marketing purposes; 

1. access or use the Fergus Site, App or Service in any manner that could damage, disable, overburden, or impair the Fergus Site, App or Service, or any Software, accounts, programs, computer systems or networks; 

1. gain unauthorised access to any parts of the Service or any Software, accounts, programs, computer systems or networks; 

1. interfere or attempt to interfere with the proper working of the Fergus Site, App, Service or any Software, accounts, programs, computer systems or networks; 

1. use any robot, spider, scraper or other automated means to access the Service or any Software, accounts, programs computer systems or networks; 

1. modify, copy, adapt, reproduce, disassemble, decompile, reverse engineer or extract the source code of any part of the Fergus Site, App, Service or Content or make derivative works of any Content (including by linking or framing any Content to a third party website); or 

1. resell, lease, or sublicense the Service or Content in any way not expressly permitted by us. 

1. Fergus reserves the right to disable any unauthorised links or frames and disclaims any responsibility for the content available on any other website reached by links to or from the Fergus Site. 

1. Content  

1. The material displayed on, and all content and data accessed, downloaded or otherwise obtained on or through the Fergus Site, the App and/or the Service, including without limitation, all real time or other information, text, materials, graphics, software, tools, results derived from the use of software and tools, advertisements, names, logos and trademarks, but excluding any User Materials (Content) are protected by intellectual property laws. All Intellectual Property Rights, title and interest in and to the Content are owned by Fergus or its third party suppliers or licensors. 

1. User Materials 

1. All User Materials will be (and will remain) owned by you (or your Users or customers, as applicable). However, you grant to us a licence to access, use and disclose your User Materials for the purposes of providing the Service, exercising our rights and performing our obligations under this Agreement, analysing and improving the Fergus Site, App, Service and Content and communicating with you about the Service, your Agreement and any other matters that may be of interest.  We may also disclose your User Materials in connection with a proposed purchase or acquisition of our business or assets, where required by applicable law or any court, or in response to a request by a legitimate law enforcement agency or regulatory body. 

1. You grant to us a non-exclusive royalty free world-wide and irrevocable licence permitting us to copy, anonymize, aggregate, process and display User Materials to derive anonymous statistical and usage data, and data about the Fergus Site, App, Service, Content and your use of them, provided such data cannot be used to identify your Users or any other individual (Anonymous Data). We may combine or incorporate such Anonymous Data with or into other similar data and information available, derived or obtained from other clients, licensees, users, or otherwise e (when so combined or incorporated, referred to as Aggregate Data). We will be the owners of all rights, title and interest in and to the Anonymous Data and Aggregate Data. 

1. You warrant and represent that: 

1. you have the right to grant the rights in clauses 8.1 and 8.2 in respect of all User Materials, and input the User Materials into the Fergus Site or the App in the manner anticipated by the Agreement and the Service; and 

1. use of the User Materials by us, you or any of your Users in the manner anticipated by this Agreement and the Service will not breach any laws or the rights of any person (including the privacy or intellectual property rights of any person). 

1. You are solely responsible for maintaining a copy of all User Materials. We do not make any guarantees around loss or corruption of any User Materials. 

1. We reserve the right to remove or replace, any Content or User Materials from the Fergus Site, App or Service that may expose us to potential liability, if we lose our right to access and use any third party data or if we consider that your continued access to the relevant Content or data may place us in breach of any law or any third party contract. 

1. Free trial 

1. We may offer you a free trial of the Service. Any free trial offered by us will commence on the day that we make the trial service available to you and will end on the last day of the trial period specified on the Fergus Site. You may not register for (or allow any other person to register on your behalf for) any more than one free trial of the Service. If it is determined that you have directly or indirectly obtained access to more than one free trial, we may charge you the relevant fees applicable to the Service provided during your additional trial(s). 

1. At the end of a trial period, we will disable your access to the Service (and will remove your User Material from the Service within 30 days), unless you become a registered user of the Service on a paid basis.  The Fergus Site, App and Service are supplied on an “as is – where is” basis during any trial period, and as such any warranties given by us in these terms of service do not apply. 

1. Third Party Websites, Content, Products and Services 

1. The Fergus Site provides links to websites and access to content, products and services of third parties, including other users, advertisers, affiliates and sponsors of the Fergus Site and App. Fergus is not responsible for third party content provided on or through the Fergus Site or the App and you bear all risks associated with the access and use of such websites and third party content, products and services. 

1. Term and Termination  

1. The term of your Agreement with us commences on the first day you access the Service and continues until either Fergus or you terminate this Agreement in accordance with these terms of service. 

1. We may terminate this Agreement (and the plan you have subscribed for) at any time by providing you with written notice (by email).  

1. You may terminate this Agreement (and cancel the plan you have subscribed for) at any time by providing us with written notice (by email). You will still need to pay all applicable Fees up to and including the  end of the month in which you terminate this Agreement. 

1. We may terminate this Agreement (and cancel the plan you have subscribed for) or limit your access to or use of the App, Service or any Content immediately, by notice to you, if: 

1. you (or any of your Users) breach any term of this Agreement; 

1. you fail to pay any Fees by the due date for payment; or 

1. you become insolvent, make any arrangement with your creditors, go into liquidation, have a receiver appointed over any of your assets, or are subject to any similar insolvency event in any jurisdiction. 

1. You may terminate this Agreement (and cancel the plan you have subscribed for), by notice in writing to us, immediately if: 

1. we fail to comply with any material term of this Agreement and do not remedy the breach within 20 days of receiving notice of the breach from you; or 

1. we become insolvent, make any arrangement with our creditors, go into liquidation, have a receiver appointed over any of our assets, or are subject to any similar insolvency event in any jurisdiction. 

1. If we terminate under clause 11.2 or you terminate under clause 11.5, we may provide you with a refund of any Fees paid you in advance that relate to the period after termination. Otherwise, no refunds of Fees will be available on termination of this Agreement. 

1. We may also suspend or limit your access to the Fergus Site or the App at any time for such time as is necessary to carry out maintenance. 

1. Upon termination of this Agreement between us (for any reason), you must (and must ensure your Users) immediately cease to access or use the Service and Fergus may remove all of your User Material from the Service.  

1. Disclaimers 

1. We will use our commercially reasonable efforts to ensure that the Service is accessible by you and your Users in accordance with this Agreement. 

1. In the event of any breach of clause 12.1 or any other term, condition or warranty that Fergus is unable to exclude by law, your sole remedy will be (at our option) the resupply of the non-conforming Service within a commercially reasonable time or a refund of the Fees paid by you for such non-conforming Service. 

1. Other than as expressly provided in clause 12.1 above, the Fergus Site, the App, the Service and all Content provided on or through the Service, are provided on an “as is” and “as available” basis. Fergus expressly disclaims all warranties or terms of any kind, whether express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose and non-infringement with respect to all Content provided on or through the Fergus Site. Fergus makes no warranty that the Service will meet your requirements or will be available on an uninterrupted error-free basis. As the Service uses artificial intelligence to assist in preparing the Content, we do not provide any warranties in respect of the accuracy, completeness, timeliness or supply of any Content. 

1. Despite any other provision to the contrary in this Agreement, we will not under any circumstances be liable to you, any User or any third party in respect of the accuracy of any Content or your use or reliance on any Content created by or derived from the Service, including any decisions you make in respect of your business or employees arising from the use of the Service or Content, which remains your sole responsibility. In particular, you acknowledge that Fergus uses artificial intelligence systems to assist in providing the Service and the Content that you receive from the Service. Given the nature of artificial intelligence and machine learning systems and reliance on third parties to input accurate and complete information into the Service, use of the Service may result in incorrect or incomplete data being included in the Service or the Content. 

1. You acknowledge and agree that you shall comply (in all respects) with any restrictions of use in any agreement entered into in respect of any third party software (including any artificial intelligence software) used in connection with (or incorporated into) the Service, as notified by us. 

1. Fergus reserves the right to monitor your use of the Fergus Site, App, Service and Content at any time without notice. 

1. Limitation of Liability 

1. To the extent we do become liable to you in connection with this Agreement and/or the Service, then all claims by you against us are, to the extent permitted by law, limited in aggregate to the Fees paid by you in the first year of the term of this Agreement, unless such liability has arisen as a sole and direct result of our  fraud. 

1. You will indemnify us for any loss, damage or costs incurred by us from any claim (including a claim by any of our suppliers, partners or licensors), where the relevant claim arises from: (i) your (or any of your Users) unauthorised use or disclosure of the Service or Content; (ii) any inaccuracy in, or incompleteness of, any User Materials; or (iii) any breach by you (or any of your Users) of clause 6.1 or the warranties in clause 8.3. 

1. Except in respect of any liability under the indemnity in clause 13.2, under no circumstances will either you or we (or any of our third party licensors or suppliers), or any of their directors, officers or employees, be liable, whether in contract, equity, tort (including negligence, breach of statutory duty or otherwise) or any other theory of liability for any direct or indirect loss of profits, loss of revenue, loss of User Materials, loss of anticipated savings; or for any indirect, special or consequential loss whatsoever. 

1. Privacy 

1. We collect and process the Personal Information of your Users and customer when you (or your Users, as applicable) access or use the Website, the App and/or the Service. We may also collect certain information about the performance of the Website, App and Service and your (and your Users’) use of the Website, App, Services and/or Content.  

1. You must ensure that your Users are aware of and read the Privacy Policy. 

1. Our access to and use of all such Personal Information is governed by our Privacy Policy. By agreeing to this Agreement, you agree to the way we handle your (and your Users’ and customers) personal information, as specified in (and anticipated by) these terms of use and our Privacy Policy.  

1. You must comply with all Data Privacy Laws in connection with your collection, use and disclosure of the personal information of any person. You will not (and will ensure your Users do not) use the Service: (i) to collect personal information about third parties other than as anticipated by the Service; or (ii) in a way that violates (or may be considered inconsistent with) the privacy of any person. This includes, if you are located (or a company registered) in the United Kingdom, complying with the data processing addendum (in the form available at [link), which shall form part of your Agreement with us) 

1. You warrant that you have obtained all necessary consents and approvals from all individuals (including your Users) to ensure that we are able to lawfully process all personal information of such persons in the manner specified in (and anticipated by) this Agreement and the Service. 

1. You will, upon becoming aware of a Security incident, or any other breach, or suspected breach, of your security safeguards, notify us without undue delay and shall provide timely information relating to the Security Incident as it becomes known or as is reasonably requested by us. 

1. Intellectual Property Rights 

1. You acknowledge that Fergus owns all Intellectual Property Rights in the Fergus Site, the App, the Service, the Software and the Content, and nothing in this Agreement constitutes a transfer of any such Intellectual Property Rights to you. 

1. You must not directly or indirectly do anything that would or might invalidate or put in dispute Fergus' Intellectual Property Rights in the Fergus Site, the App, the Service, the Software and the Content (including any of the Fergus registered or unregistered trademarks). 

1. You must comply with Fergus' reasonable usage guidelines and directions with respect to the Fergus Site, the App, the Service, the Software and the Content as notified to you from time to time. 

1. If, you or any of your Users send us any comment, feedback, submission, creative idea, suggestion, proposal, plan, or other material, by any means (Comment), you agree that we may use any Comment for any purpose, without restriction, and shall be under no obligation to maintain any Comment in confidence or respond to any Comment. 

1. Confidentiality 

1. A party must not, without the prior written consent of the other, use or disclose the other party’s Confidential Information unless expressly permitted by this Agreement or required to do so by law or any regulatory authority. 

1. A party may: 

1. use the Confidential Information of the other party solely for the purposes of complying with its obligations and exercising its rights under this Agreement; and 

1. disclose the Confidential Information of the other party to its personnel or advisers to the extent necessary for them to know the information for purposes related to this Agreement, but only if reasonable steps are taken to ensure that the confidentiality of the information is retained. 

1. Apple and Google terms 

1. For the purposes of this clause 17.1: 

Apple means Apple Inc and other companies within its group. 

Apple Store means the store/platform operated by Apple making the App available to iOS devices.  

Google means Alphabet Inc and other companies within its group. 

Google Play Store means the store/platform operated by Google making the App available to Android devices. 

1. You acknowledge and agree that: 

1. where the App is downloaded from the Apple Store: 

1. your rights to install and use the App are subject to these Terms of Use and the relevant terms in the Apple Store terms of service; 

1. Apple is not responsible for the App in any way, including for any maintenance or support of the App; 

1. to the maximum extent permitted by law, Apple has no warranty obligations with respect to the App; 

1. we (and not Apple) are responsible for addressing any claims by you or a third party in connection with the App (including any claims by a third party that the App breaches that persons intellectual property rights); and 

1. though this agreement is entered into between us and you, Apple, as a third party beneficiary under this agreement, will have the right to enforce these Terms of Use against you. 

1. Where the App is downloaded from the Google Play Store: 

1. your rights to install and use the App are subject to these Terms of Use and the relevant terms in the Google Play Store terms of service; 

1. Google is not responsible for the App in any way, including any maintenance or support of the App; and 

1. we (and not Google) are responsible for addressing any claims by you or a third party in connection with the App (including any claims by a third party that the App breaches that persons intellectual property rights). 

1. For the benefit of each of us, Apple and Google, you represent and warrant that you are not, and will not, be located in any country that is the subject of a US Government embargo or that has been designated by the US Government as a “terrorist supporting” country and that you are not listed on any US Government list of prohibited or restricted parties. 

1. Fergus Pay 

18.1 We have arranged for Stripe to collect any funds due to you from the selling of your goods and services via Fergus Pay. By using Fergus Pay and accepting the funds collected on your behalf by Stripe, you agree to the terms of the Fergus Pay Agreement, a copy of which can be obtained here. 

1. General 

19.1 The use of the Fergus Site, App and Service and this Agreement shall be governed by the laws of the country in which the Fergus entity that you are contracting with is registered and you agree to submit to the exclusive jurisdiction of the courts of that country in respect of any disputes or claims arising out of or in connection with this agreement or the Service.  

19.2 Neither party shall be liable for any delay or failure to fulfil its obligations under this Agreement arising directly or indirectly from any circumstance beyond the reasonable control of the affected party (including, without limitation, acts of God, flood, earthquake, storm, fire, epidemic, pandemic, war, embargoes, riot or civil disturbance), provided that the affected party shall notify the other party as soon as practicable of the events and use its reasonable endeavours to continue to perform its obligations and mitigate the effects of the event. 

19.3 You must not assign, sub-licence or otherwise deal in any similar way with any of your rights under this Agreement without the prior written consent of Fergus. 

19.4 Nothing contained in this Agreement creates any relationship of partnership or agency between the parties. 

19.5 If a provision of this Agreement is invalid or unenforceable it is to be read down or severed to the extent necessary, without affecting the validity or enforceability of the remaining provisions. 

1. Contacting Fergus 

20.1 You can contact Fergus via email at support@fergus.com  FERGUS: TERMS OF SERVICE 

By accessing any Fergus Site or the App, you agree to be bound by these terms and conditions, which together with our Privacy Policy, form a binding agreement between you and us (Agreement). If you do not agree to these terms and conditions then you should not access the Fergus Site or download the App. 

If you are accessing the Service on behalf of a Customer, you confirm that you have the authority to act on behalf of that entity. 

From time to time we may need to make changes to these terms of service. We will notify you of any by posting them on the Fergus Site or by emailing you, and you agree by continuing to access or use the Fergus Site and/or the App to be bound by the updated terms. 

Definitions 

Unless the context requires otherwise: 

“Account” means an account registered by a Customer through the Fergus Site or the App, which enables the Customer (and its Users) to access and use the Service. 

“App” means the Fergus online application (available via the Apple Store or Google Play Store) through which the Service may be accessed. 

“Confidential Information” means all information provided by one party to the other in connection with this Agreement where such information is identified as confidential at the time of its disclosure or ought reasonably be considered confidential based on its content, nature or the manner of its disclosure, but excludes: 

information that enters the public domain or is disclosed to a party by a third party, other than through a breach of this Agreement, and 

information developed independently by a party. 

“Content” has the meaning given to it in clause 7.1. 

“Customer”, “you” or “your” means any person who registers to access and use the Service, and in whose name the Account is created.  

“Data Privacy Laws” means the privacy laws that either you or we are legally obliged to comply with, including (as applicable), the NZ Privacy Act 2020, the Australian Privacy Act 1988, General Data Protection Regulation (EU) 2016/679 (EU GDPR) and/or the United Kingdom Data Protection Regulation (UK GDPR). 

“Fees” means all fees payable by you to Fergus (including but not limited to, subscription fees, training fees, licensing fees and service based fees), as specified on the Website or as otherwise agreed in writing by Fergus with you. 

“Fergus”, “we”, “our” or “us” means the Fergus entity that you contract with pursuant to these terms of service. This will be: 

if you are located (or a company registered) in Australia; Fergus Software Pty Limited (ACN 605 226 417)); or 

if you are located (or a company registered) in the United Kingdom, Fergus Software Systems (UK) Limited; or 

if you are located (or a company registered) elsewhere, Fergus Software Limited in New Zealand (NZBN 9429031078085). 

 

“Fergus Site” means the Fergus website (www.fergus.com), or any other such website that supersedes it in the future. 

“Intellectual Property Rights” means all intellectual property rights, including all copyright, moral rights, patents, trademarks, design rights, trade secrets, domain names, know how and other rights of a similar nature, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application. 

“Privacy Policy” means the Fergus Privacy Policy (as updated from time to time), available at https://fergus.com/privacy-policy/. 

“Service” means the job management Service made available by Fergus through the Fergus Site and/or the App, including but not limited to its customer retention management and work management software and its mobile applications.   

“Software” means the Fergus software and other third party software (including artificial intelligence systems) used by Fergus to provide the Service. 

“User” means any of your personnel, contractors (or other third parties) that access and use the Service on your behalf or otherwise input User Materials into the Service in connection with your Account. 

“User Materials” means: 

any and all information, data, documents, images, photos and videos (including Account registration information and your customer information) that you or your Users input into the Service or otherwise make available to Fergus (including via the Website or the App); and 

any and all data that relates to you or your Users that a third party (for example, a supplier of trade materials) inputs into the Service for you in connection with your Account, 

but for clarity, excludes any Content. 

Service 

Subject to compliance by you with this Agreement we grant to you and you accept from us, a non-exclusive, non-transferable and non-assignable right for you (and your Users) to access and use the Service during the Term in accordance with this Agreement. 

If you wish to access and use the App and the Service, you must become a registered user and activate an Account via the Fergus Site. 

You warrant that all User Materials you (or your Users or other third parties) supply to us or input into the Service is accurate, complete and up to date. You acknowledge that the Service (and the accuracy, completeness and reliability of the outputs you receive from it) depends entirely on the accuracy and completeness of all User Materials inputted into the Service.   

Users 

Access to and use of password protected or secure areas of the Fergus Site, App and Service are restricted to you and your Users only. You are responsible for keeping all your access information for the App and the Service, including email addresses and log-on credentials, secret and secure, and agree: 

to ensure that each User only accesses and used the Service in accordance with the relevant licence granted to that User; 

not to disclose and to ensure that Users do not disclose their user name or log-on credentials to any other person; 

to ensure that none of your Users (or any other person under your control) attempts to gain unauthorised access to the App, Service or Content; and 

to inform us immediately of any known or suspected unauthorised access to and use of the App, Service or Content. 

You must notify each User of the terms of this Agreement and ensure that each of them strictly comply with these terms.  You shall be responsible (and liable) for any failure of any User to comply with the terms of this Agreement (as if it were a breach by you of this Agreement). 

Fees 

In consideration of your (and your Users’) use of the Service, you will pay us the Fees.  

Our Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties. If we are required to pay or collect any goods and services or value-added tax on any Fees charged under this Agreement, then such taxes and/or duties will be billed to and paid by you. 

Unless otherwise stated in your billing plan, Fergus charges the Fees on a per user basis with a plan type base. It solely up to you to maintain your own plan, type, user levels and other Fergus products used via the Fergus software. 

We may, from time to time, cancel the continued availability of any subscription package. However, we will provide you with advance notice of any such cancellation.  

Fees are subject to change, provided that you will be given advance notice of any impending Fee changes in accordance with this Agreement.' 

Payment 

Fees shall be payable by credit card. Credit card transactions are securely processed by third-party providers indicated when your credit card is entered, and are subject to the third-party providers terms of service available on their website. The third-party providers are solely responsible for such transactions and we exclude all liability for such transactions to the extent not restricted by law. The third-party providers maintain administrative, technical, and physical procedures to protect information stored on its servers, as outlined within its own privacy policy.   

If you do not pay the Fees on the due date for payment (including where your payment has been dishonoured), we: 

will suspend access to the Service if payment is not made in full of all amounts due and owing to us within 14 days of invoice date; 

may charge interest on the unpaid amount from the due date until the date of actual payment at 2% per annum over the base overdraft facility rate charged by our bankers from time to time, compounded monthly until paid; and  

may charge you all costs incurred by us in connection with the recovery of the unpaid amounts, including the charges from debt recovery services and legal fees on a solicitor and own client basis. 

Restrictions  

You agree not to (and to ensure that your Users do not): 

use the Fergus Site, App, Service or Content for any purpose that is not authorised by this Agreement or the subscription plan that you have subscribed for, or is otherwise unlawful or fraudulent; 

share anything through the Fergus Site, App or the Service that may be offensive or infringes the rights of any person; 

use the Fergus Site, App or Service to send outbound emails for marketing purposes; 

access or use the Fergus Site, App or Service in any manner that could damage, disable, overburden, or impair the Fergus Site, App or Service, or any Software, accounts, programs, computer systems or networks; 

gain unauthorised access to any parts of the Service or any Software, accounts, programs, computer systems or networks; 

interfere or attempt to interfere with the proper working of the Fergus Site, App, Service or any Software, accounts, programs, computer systems or networks; 

use any robot, spider, scraper or other automated means to access the Service or any Software, accounts, programs computer systems or networks; 

modify, copy, adapt, reproduce, disassemble, decompile, reverse engineer or extract the source code of any part of the Fergus Site, App, Service or Content or make derivative works of any Content (including by linking or framing any Content to a third party website); or 

resell, lease, or sublicense the Service or Content in any way not expressly permitted by us. 

Fergus reserves the right to disable any unauthorised links or frames and disclaims any responsibility for the content available on any other website reached by links to or from the Fergus Site. 

Content  

The material displayed on, and all content and data accessed, downloaded or otherwise obtained on or through the Fergus Site, the App and/or the Service, including without limitation, all real time or other information, text, materials, graphics, software, tools, results derived from the use of software and tools, advertisements, names, logos and trademarks, but excluding any User Materials (Content) are protected by intellectual property laws. All Intellectual Property Rights, title and interest in and to the Content are owned by Fergus or its third party suppliers or licensors. 

User Materials 

All User Materials will be (and will remain) owned by you (or your Users or customers, as applicable). However, you grant to us a licence to access, use and disclose your User Materials for the purposes of providing the Service, exercising our rights and performing our obligations under this Agreement, analysing and improving the Fergus Site, App, Service and Content and communicating with you about the Service, your Agreement and any other matters that may be of interest.  We may also disclose your User Materials in connection with a proposed purchase or acquisition of our business or assets, where required by applicable law or any court, or in response to a request by a legitimate law enforcement agency or regulatory body. 

You grant to us a non-exclusive royalty free world-wide and irrevocable licence permitting us to copy, anonymize, aggregate, process and display User Materials to derive anonymous statistical and usage data, and data about the Fergus Site, App, Service, Content and your use of them, provided such data cannot be used to identify your Users or any other individual (Anonymous Data). We may combine or incorporate such Anonymous Data with or into other similar data and information available, derived or obtained from other clients, licensees, users, or otherwise e (when so combined or incorporated, referred to as Aggregate Data). We will be the owners of all rights, title and interest in and to the Anonymous Data and Aggregate Data. 

You warrant and represent that: 

you have the right to grant the rights in clauses 8.1 and 8.2 in respect of all User Materials, and input the User Materials into the Fergus Site or the App in the manner anticipated by the Agreement and the Service; and 

use of the User Materials by us, you or any of your Users in the manner anticipated by this Agreement and the Service will not breach any laws or the rights of any person (including the privacy or intellectual property rights of any person). 

You are solely responsible for maintaining a copy of all User Materials. We do not make any guarantees around loss or corruption of any User Materials. 

We reserve the right to remove or replace, any Content or User Materials from the Fergus Site, App or Service that may expose us to potential liability, if we lose our right to access and use any third party data or if we consider that your continued access to the relevant Content or data may place us in breach of any law or any third party contract. 

Free trial 

We may offer you a free trial of the Service. Any free trial offered by us will commence on the day that we make the trial service available to you and will end on the last day of the trial period specified on the Fergus Site. You may not register for (or allow any other person to register on your behalf for) any more than one free trial of the Service. If it is determined that you have directly or indirectly obtained access to more than one free trial, we may charge you the relevant fees applicable to the Service provided during your additional trial(s). 

At the end of a trial period, we will disable your access to the Service (and will remove your User Material from the Service within 30 days), unless you become a registered user of the Service on a paid basis.  The Fergus Site, App and Service are supplied on an “as is – where is” basis during any trial period, and as such any warranties given by us in these terms of service do not apply. 

Third Party Websites, Content, Products and Services 

The Fergus Site provides links to websites and access to content, products and services of third parties, including other users, advertisers, affiliates and sponsors of the Fergus Site and App. Fergus is not responsible for third party content provided on or through the Fergus Site or the App and you bear all risks associated with the access and use of such websites and third party content, products and services. 

Term and Termination  

The term of your Agreement with us commences on the first day you access the Service and continues until either Fergus or you terminate this Agreement in accordance with these terms of service. 

We may terminate this Agreement (and the plan you have subscribed for) at any time by providing you with written notice (by email).  

You may terminate this Agreement (and cancel the plan you have subscribed for) at any time by providing us with written notice (by email). You will still need to pay all applicable Fees up to and including the  end of the month in which you terminate this Agreement. 

We may terminate this Agreement (and cancel the plan you have subscribed for) or limit your access to or use of the App, Service or any Content immediately, by notice to you, if: 

you (or any of your Users) breach any term of this Agreement; 

you fail to pay any Fees by the due date for payment; or 

you become insolvent, make any arrangement with your creditors, go into liquidation, have a receiver appointed over any of your assets, or are subject to any similar insolvency event in any jurisdiction. 

You may terminate this Agreement (and cancel the plan you have subscribed for), by notice in writing to us, immediately if: 

we fail to comply with any material term of this Agreement and do not remedy the breach within 20 days of receiving notice of the breach from you; or 

we become insolvent, make any arrangement with our creditors, go into liquidation, have a receiver appointed over any of our assets, or are subject to any similar insolvency event in any jurisdiction. 

If we terminate under clause 11.2 or you terminate under clause 11.5, we may provide you with a refund of any Fees paid you in advance that relate to the period after termination. Otherwise, no refunds of Fees will be available on termination of this Agreement. 

We may also suspend or limit your access to the Fergus Site or the App at any time for such time as is necessary to carry out maintenance. 

Upon termination of this Agreement between us (for any reason), you must (and must ensure your Users) immediately cease to access or use the Service and Fergus may remove all of your User Material from the Service.  

Disclaimers 

We will use our commercially reasonable efforts to ensure that the Service is accessible by you and your Users in accordance with this Agreement. 

In the event of any breach of clause 12.1 or any other term, condition or warranty that Fergus is unable to exclude by law, your sole remedy will be (at our option) the resupply of the non-conforming Service within a commercially reasonable time or a refund of the Fees paid by you for such non-conforming Service. 

Other than as expressly provided in clause 12.1 above, the Fergus Site, the App, the Service and all Content provided on or through the Service, are provided on an “as is” and “as available” basis. Fergus expressly disclaims all warranties or terms of any kind, whether express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose and non-infringement with respect to all Content provided on or through the Fergus Site. Fergus makes no warranty that the Service will meet your requirements or will be available on an uninterrupted error-free basis. As the Service uses artificial intelligence to assist in preparing the Content, we do not provide any warranties in respect of the accuracy, completeness, timeliness or supply of any Content. 

Despite any other provision to the contrary in this Agreement, we will not under any circumstances be liable to you, any User or any third party in respect of the accuracy of any Content or your use or reliance on any Content created by or derived from the Service, including any decisions you make in respect of your business or employees arising from the use of the Service or Content, which remains your sole responsibility. In particular, you acknowledge that Fergus uses artificial intelligence systems to assist in providing the Service and the Content that you receive from the Service. Given the nature of artificial intelligence and machine learning systems and reliance on third parties to input accurate and complete information into the Service, use of the Service may result in incorrect or incomplete data being included in the Service or the Content. 

You acknowledge and agree that you shall comply (in all respects) with any restrictions of use in any agreement entered into in respect of any third party software (including any artificial intelligence software) used in connection with (or incorporated into) the Service, as notified by us. 

Fergus reserves the right to monitor your use of the Fergus Site, App, Service and Content at any time without notice. 

Limitation of Liability 

To the extent we do become liable to you in connection with this Agreement and/or the Service, then all claims by you against us are, to the extent permitted by law, limited in aggregate to the Fees paid by you in the first year of the term of this Agreement, unless such liability has arisen as a sole and direct result of our  fraud. 

You will indemnify us for any loss, damage or costs incurred by us from any claim (including a claim by any of our suppliers, partners or licensors), where the relevant claim arises from: (i) your (or any of your Users) unauthorised use or disclosure of the Service or Content; (ii) any inaccuracy in, or incompleteness of, any User Materials; or (iii) any breach by you (or any of your Users) of clause 6.1 or the warranties in clause 8.3. 

Except in respect of any liability under the indemnity in clause 13.2, under no circumstances will either you or we (or any of our third party licensors or suppliers), or any of their directors, officers or employees, be liable, whether in contract, equity, tort (including negligence, breach of statutory duty or otherwise) or any other theory of liability for any direct or indirect loss of profits, loss of revenue, loss of User Materials, loss of anticipated savings; or for any indirect, special or consequential loss whatsoever. 

Privacy 

We collect and process the Personal Information of your Users and customer when you (or your Users, as applicable) access or use the Website, the App and/or the Service. We may also collect certain information about the performance of the Website, App and Service and your (and your Users’) use of the Website, App, Services and/or Content.  

You must ensure that your Users are aware of and read the Privacy Policy. 

Our access to and use of all such Personal Information is governed by our Privacy Policy. By agreeing to this Agreement, you agree to the way we handle your (and your Users’ and customers) personal information, as specified in (and anticipated by) these terms of use and our Privacy Policy.  

You must comply with all Data Privacy Laws in connection with your collection, use and disclosure of the personal information of any person. You will not (and will ensure your Users do not) use the Service: (i) to collect personal information about third parties other than as anticipated by the Service; or (ii) in a way that violates (or may be considered inconsistent with) the privacy of any person. This includes, if you are located (or a company registered) in the United Kingdom, complying with the data processing addendum (in the form available at [link), which shall form part of your Agreement with us) 

You warrant that you have obtained all necessary consents and approvals from all individuals (including your Users) to ensure that we are able to lawfully process all personal information of such persons in the manner specified in (and anticipated by) this Agreement and the Service. 

You will, upon becoming aware of a Security incident, or any other breach, or suspected breach, of your security safeguards, notify us without undue delay and shall provide timely information relating to the Security Incident as it becomes known or as is reasonably requested by us. 

Intellectual Property Rights 

You acknowledge that Fergus owns all Intellectual Property Rights in the Fergus Site, the App, the Service, the Software and the Content, and nothing in this Agreement constitutes a transfer of any such Intellectual Property Rights to you. 

You must not directly or indirectly do anything that would or might invalidate or put in dispute Fergus' Intellectual Property Rights in the Fergus Site, the App, the Service, the Software and the Content (including any of the Fergus registered or unregistered trademarks). 

You must comply with Fergus' reasonable usage guidelines and directions with respect to the Fergus Site, the App, the Service, the Software and the Content as notified to you from time to time. 

If, you or any of your Users send us any comment, feedback, submission, creative idea, suggestion, proposal, plan, or other material, by any means (Comment), you agree that we may use any Comment for any purpose, without restriction, and shall be under no obligation to maintain any Comment in confidence or respond to any Comment. 

Confidentiality 

A party must not, without the prior written consent of the other, use or disclose the other party’s Confidential Information unless expressly permitted by this Agreement or required to do so by law or any regulatory authority. 

A party may: 

use the Confidential Information of the other party solely for the purposes of complying with its obligations and exercising its rights under this Agreement; and 

disclose the Confidential Information of the other party to its personnel or advisers to the extent necessary for them to know the information for purposes related to this Agreement, but only if reasonable steps are taken to ensure that the confidentiality of the information is retained. 

Apple and Google terms 

For the purposes of this clause 17.1: 

Apple means Apple Inc and other companies within its group. 

Apple Store means the store/platform operated by Apple making the App available to iOS devices.  

Google means Alphabet Inc and other companies within its group. 

Google Play Store means the store/platform operated by Google making the App available to Android devices. 

You acknowledge and agree that: 

where the App is downloaded from the Apple Store: 

your rights to install and use the App are subject to these Terms of Use and the relevant terms in the Apple Store terms of service; 

Apple is not responsible for the App in any way, including for any maintenance or support of the App; 

to the maximum extent permitted by law, Apple has no warranty obligations with respect to the App; 

we (and not Apple) are responsible for addressing any claims by you or a third party in connection with the App (including any claims by a third party that the App breaches that persons intellectual property rights); and 

though this agreement is entered into between us and you, Apple, as a third party beneficiary under this agreement, will have the right to enforce these Terms of Use against you. 

Where the App is downloaded from the Google Play Store: 

your rights to install and use the App are subject to these Terms of Use and the relevant terms in the Google Play Store terms of service; 

Google is not responsible for the App in any way, including any maintenance or support of the App; and 

we (and not Google) are responsible for addressing any claims by you or a third party in connection with the App (including any claims by a third party that the App breaches that persons intellectual property rights). 

For the benefit of each of us, Apple and Google, you represent and warrant that you are not, and will not, be located in any country that is the subject of a US Government embargo or that has been designated by the US Government as a “terrorist supporting” country and that you are not listed on any US Government list of prohibited or restricted parties. 

Fergus Pay 

18.1    We have arranged for Stripe to collect any funds due to you from the selling of your goods and services via Fergus Pay. By using Fergus Pay and accepting the funds collected on your behalf by Stripe, you agree to the terms of the Fergus Pay Agreement, a copy of which can be obtained here. 

General 

19.1    The use of the Fergus Site, App and Service and this Agreement shall be governed by the laws of the country in which the Fergus entity that you are contracting with is registered and you agree to submit to the exclusive jurisdiction of the courts of that country in respect of any disputes or claims arising out of or in connection with this agreement or the Service.  

19.2    Neither party shall be liable for any delay or failure to fulfil its obligations under this Agreement arising directly or indirectly from any circumstance beyond the reasonable control of the affected party (including, without limitation, acts of God, flood, earthquake, storm, fire, epidemic, pandemic, war, embargoes, riot or civil disturbance), provided that the affected party shall notify the other party as soon as practicable of the events and use its reasonable endeavours to continue to perform its obligations and mitigate the effects of the event. 

19.3    You must not assign, sub-licence or otherwise deal in any similar way with any of your rights under this Agreement without the prior written consent of Fergus. 

19.4    Nothing contained in this Agreement creates any relationship of partnership or agency between the parties. 

19.5    If a provision of this Agreement is invalid or unenforceable it is to be read down or severed to the extent necessary, without affecting the validity or enforceability of the remaining provisions. 

Contacting Fergus 

20.1    You can contact Fergus via email at support@fergus.com  

FERGUS: TERMS OF SERVICE 

By accessing any Fergus Site or the App, you agree to be bound by these terms and conditions, which together with our Privacy Policy, form a binding agreement between you and us (Agreement). If you do not agree to these terms and conditions then you should not access the Fergus Site or download the App. 

If you are accessing the Service on behalf of a Customer, you confirm that you have the authority to act on behalf of that entity. 

From time to time we may need to make changes to these terms of service. We will notify you of any by posting them on the Fergus Site or by emailing you, and you agree by continuing to access or use the Fergus Site and/or the App to be bound by the updated terms. 

1. Definitions 

1. Unless the context requires otherwise: 

“Account” means an account registered by a Customer through the Fergus Site or the App, which enables the Customer (and its Users) to access and use the Service. 

“App” means the Fergus online application (available via the Apple Store or Google Play Store) through which the Service may be accessed. 

“Confidential Information” means all information provided by one party to the other in connection with this Agreement where such information is identified as confidential at the time of its disclosure or ought reasonably be considered confidential based on its content, nature or the manner of its disclosure, but excludes: 

1. information that enters the public domain or is disclosed to a party by a third party, other than through a breach of this Agreement, and 

1. information developed independently by a party. 

“Content” has the meaning given to it in clause 7.1. 

“Customer”, “you” or “your” means any person who registers to access and use the Service, and in whose name the Account is created.  

“Data Privacy Laws” means the privacy laws that either you or we are legally obliged to comply with, including (as applicable), the NZ Privacy Act 2020, the Australian Privacy Act 1988, General Data Protection Regulation (EU) 2016/679 (EU GDPR) and/or the United Kingdom Data Protection Regulation (UK GDPR). 

“Fees” means all fees payable by you to Fergus (including but not limited to, subscription fees, training fees, licensing fees and service based fees), as specified on the Website or as otherwise agreed in writing by Fergus with you. 

“Fergus”, “we”, “our” or “us” means the Fergus entity that you contract with pursuant to these terms of service. This will be: 

1. if you are located (or a company registered) in Australia; Fergus Software Pty Limited (ACN 605 226 417)); or 

1. if you are located (or a company registered) in the United Kingdom, Fergus Software Systems (UK) Limited; or 

1. if you are located (or a company registered) elsewhere, Fergus Software Limited in New Zealand (NZBN 9429031078085). 

 

“Fergus Site” means the Fergus website (www.fergus.com), or any other such website that supersedes it in the future. 

“Intellectual Property Rights” means all intellectual property rights, including all copyright, moral rights, patents, trademarks, design rights, trade secrets, domain names, know how and other rights of a similar nature, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application. 

“Privacy Policy” means the Fergus Privacy Policy (as updated from time to time), available at https://fergus.com/privacy-policy/. 

“Service” means the job management Service made available by Fergus through the Fergus Site and/or the App, including but not limited to its customer retention management and work management software and its mobile applications.   

“Software” means the Fergus software and other third party software (including artificial intelligence systems) used by Fergus to provide the Service. 

“User” means any of your personnel, contractors (or other third parties) that access and use the Service on your behalf or otherwise input User Materials into the Service in connection with your Account. 

“User Materials” means: 

1. any and all information, data, documents, images, photos and videos (including Account registration information and your customer information) that you or your Users input into the Service or otherwise make available to Fergus (including via the Website or the App); and 

1. any and all data that relates to you or your Users that a third party (for example, a supplier of trade materials) inputs into the Service for you in connection with your Account, 

but for clarity, excludes any Content. 

1. Service 

1. Subject to compliance by you with this Agreement we grant to you and you accept from us, a non-exclusive, non-transferable and non-assignable right for you (and your Users) to access and use the Service during the Term in accordance with this Agreement. 

1. If you wish to access and use the App and the Service, you must become a registered user and activate an Account via the Fergus Site. 

1. You warrant that all User Materials you (or your Users or other third parties) supply to us or input into the Service is accurate, complete and up to date. You acknowledge that the Service (and the accuracy, completeness and reliability of the outputs you receive from it) depends entirely on the accuracy and completeness of all User Materials inputted into the Service.   

1. Users 

1. Access to and use of password protected or secure areas of the Fergus Site, App and Service are restricted to you and your Users only. You are responsible for keeping all your access information for the App and the Service, including email addresses and log-on credentials, secret and secure, and agree: 

1. to ensure that each User only accesses and used the Service in accordance with the relevant licence granted to that User; 

1. not to disclose and to ensure that Users do not disclose their user name or log-on credentials to any other person; 

1. to ensure that none of your Users (or any other person under your control) attempts to gain unauthorised access to the App, Service or Content; and 

1. to inform us immediately of any known or suspected unauthorised access to and use of the App, Service or Content. 

1. You must notify each User of the terms of this Agreement and ensure that each of them strictly comply with these terms.  You shall be responsible (and liable) for any failure of any User to comply with the terms of this Agreement (as if it were a breach by you of this Agreement). 

1. Fees 

1. In consideration of your (and your Users’) use of the Service, you will pay us the Fees.  

1. Our Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties. If we are required to pay or collect any goods and services or value-added tax on any Fees charged under this Agreement, then such taxes and/or duties will be billed to and paid by you. 

1. Unless otherwise stated in your billing plan, Fergus charges the Fees on a per user basis with a plan type base. It solely up to you to maintain your own plan, type, user levels and other Fergus products used via the Fergus software. 

1. We may, from time to time, cancel the continued availability of any subscription package. However, we will provide you with advance notice of any such cancellation.  

1. Fees are subject to change, provided that you will be given advance notice of any impending Fee changes in accordance with this Agreement.' 

1. Payment 

1. Fees shall be payable by credit card. Credit card transactions are securely processed by third-party providers indicated when your credit card is entered, and are subject to the third-party providers terms of service available on their website. The third-party providers are solely responsible for such transactions and we exclude all liability for such transactions to the extent not restricted by law. The third-party providers maintain administrative, technical, and physical procedures to protect information stored on its servers, as outlined within its own privacy policy.   

1. If you do not pay the Fees on the due date for payment (including where your payment has been dishonoured), we: 

1. will suspend access to the Service if payment is not made in full of all amounts due and owing to us within 14 days of invoice date; 

1. may charge interest on the unpaid amount from the due date until the date of actual payment at 2% per annum over the base overdraft facility rate charged by our bankers from time to time, compounded monthly until paid; and  

1. may charge you all costs incurred by us in connection with the recovery of the unpaid amounts, including the charges from debt recovery services and legal fees on a solicitor and own client basis. 

1. Restrictions  

1. You agree not to (and to ensure that your Users do not): 

1. use the Fergus Site, App, Service or Content for any purpose that is not authorised by this Agreement or the subscription plan that you have subscribed for, or is otherwise unlawful or fraudulent; 

1. share anything through the Fergus Site, App or the Service that may be offensive or infringes the rights of any person; 

1. use the Fergus Site, App or Service to send outbound emails for marketing purposes; 

1. access or use the Fergus Site, App or Service in any manner that could damage, disable, overburden, or impair the Fergus Site, App or Service, or any Software, accounts, programs, computer systems or networks; 

1. gain unauthorised access to any parts of the Service or any Software, accounts, programs, computer systems or networks; 

1. interfere or attempt to interfere with the proper working of the Fergus Site, App, Service or any Software, accounts, programs, computer systems or networks; 

1. use any robot, spider, scraper or other automated means to access the Service or any Software, accounts, programs computer systems or networks; 

1. modify, copy, adapt, reproduce, disassemble, decompile, reverse engineer or extract the source code of any part of the Fergus Site, App, Service or Content or make derivative works of any Content (including by linking or framing any Content to a third party website); or 

1. resell, lease, or sublicense the Service or Content in any way not expressly permitted by us. 

1. Fergus reserves the right to disable any unauthorised links or frames and disclaims any responsibility for the content available on any other website reached by links to or from the Fergus Site. 

1. Content  

1. The material displayed on, and all content and data accessed, downloaded or otherwise obtained on or through the Fergus Site, the App and/or the Service, including without limitation, all real time or other information, text, materials, graphics, software, tools, results derived from the use of software and tools, advertisements, names, logos and trademarks, but excluding any User Materials (Content) are protected by intellectual property laws. All Intellectual Property Rights, title and interest in and to the Content are owned by Fergus or its third party suppliers or licensors. 

1. User Materials 

1. All User Materials will be (and will remain) owned by you (or your Users or customers, as applicable). However, you grant to us a licence to access, use and disclose your User Materials for the purposes of providing the Service, exercising our rights and performing our obligations under this Agreement, analysing and improving the Fergus Site, App, Service and Content and communicating with you about the Service, your Agreement and any other matters that may be of interest.  We may also disclose your User Materials in connection with a proposed purchase or acquisition of our business or assets, where required by applicable law or any court, or in response to a request by a legitimate law enforcement agency or regulatory body. 

1. You grant to us a non-exclusive royalty free world-wide and irrevocable licence permitting us to copy, anonymize, aggregate, process and display User Materials to derive anonymous statistical and usage data, and data about the Fergus Site, App, Service, Content and your use of them, provided such data cannot be used to identify your Users or any other individual (Anonymous Data). We may combine or incorporate such Anonymous Data with or into other similar data and information available, derived or obtained from other clients, licensees, users, or otherwise e (when so combined or incorporated, referred to as Aggregate Data). We will be the owners of all rights, title and interest in and to the Anonymous Data and Aggregate Data. 

1. You warrant and represent that: 

1. you have the right to grant the rights in clauses 8.1 and 8.2 in respect of all User Materials, and input the User Materials into the Fergus Site or the App in the manner anticipated by the Agreement and the Service; and 

1. use of the User Materials by us, you or any of your Users in the manner anticipated by this Agreement and the Service will not breach any laws or the rights of any person (including the privacy or intellectual property rights of any person). 

1. You are solely responsible for maintaining a copy of all User Materials. We do not make any guarantees around loss or corruption of any User Materials. 

1. We reserve the right to remove or replace, any Content or User Materials from the Fergus Site, App or Service that may expose us to potential liability, if we lose our right to access and use any third party data or if we consider that your continued access to the relevant Content or data may place us in breach of any law or any third party contract. 

1. Free trial 

1. We may offer you a free trial of the Service. Any free trial offered by us will commence on the day that we make the trial service available to you and will end on the last day of the trial period specified on the Fergus Site. You may not register for (or allow any other person to register on your behalf for) any more than one free trial of the Service. If it is determined that you have directly or indirectly obtained access to more than one free trial, we may charge you the relevant fees applicable to the Service provided during your additional trial(s). 

1. At the end of a trial period, we will disable your access to the Service (and will remove your User Material from the Service within 30 days), unless you become a registered user of the Service on a paid basis.  The Fergus Site, App and Service are supplied on an “as is – where is” basis during any trial period, and as such any warranties given by us in these terms of service do not apply. 

1. Third Party Websites, Content, Products and Services 

1. The Fergus Site provides links to websites and access to content, products and services of third parties, including other users, advertisers, affiliates and sponsors of the Fergus Site and App. Fergus is not responsible for third party content provided on or through the Fergus Site or the App and you bear all risks associated with the access and use of such websites and third party content, products and services. 

1. Term and Termination  

1. The term of your Agreement with us commences on the first day you access the Service and continues until either Fergus or you terminate this Agreement in accordance with these terms of service. 

1. We may terminate this Agreement (and the plan you have subscribed for) at any time by providing you with written notice (by email).  

1. You may terminate this Agreement (and cancel the plan you have subscribed for) at any time by providing us with written notice (by email). You will still need to pay all applicable Fees up to and including the  end of the month in which you terminate this Agreement. 

1. We may terminate this Agreement (and cancel the plan you have subscribed for) or limit your access to or use of the App, Service or any Content immediately, by notice to you, if: 

1. you (or any of your Users) breach any term of this Agreement; 

1. you fail to pay any Fees by the due date for payment; or 

1. you become insolvent, make any arrangement with your creditors, go into liquidation, have a receiver appointed over any of your assets, or are subject to any similar insolvency event in any jurisdiction. 

1. You may terminate this Agreement (and cancel the plan you have subscribed for), by notice in writing to us, immediately if: 

1. we fail to comply with any material term of this Agreement and do not remedy the breach within 20 days of receiving notice of the breach from you; or 

1. we become insolvent, make any arrangement with our creditors, go into liquidation, have a receiver appointed over any of our assets, or are subject to any similar insolvency event in any jurisdiction. 

1. If we terminate under clause 11.2 or you terminate under clause 11.5, we may provide you with a refund of any Fees paid you in advance that relate to the period after termination. Otherwise, no refunds of Fees will be available on termination of this Agreement. 

1. We may also suspend or limit your access to the Fergus Site or the App at any time for such time as is necessary to carry out maintenance. 

1. Upon termination of this Agreement between us (for any reason), you must (and must ensure your Users) immediately cease to access or use the Service and Fergus may remove all of your User Material from the Service.  

1. Disclaimers 

1. We will use our commercially reasonable efforts to ensure that the Service is accessible by you and your Users in accordance with this Agreement. 

1. In the event of any breach of clause 12.1 or any other term, condition or warranty that Fergus is unable to exclude by law, your sole remedy will be (at our option) the resupply of the non-conforming Service within a commercially reasonable time or a refund of the Fees paid by you for such non-conforming Service. 

1. Other than as expressly provided in clause 12.1 above, the Fergus Site, the App, the Service and all Content provided on or through the Service, are provided on an “as is” and “as available” basis. Fergus expressly disclaims all warranties or terms of any kind, whether express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose and non-infringement with respect to all Content provided on or through the Fergus Site. Fergus makes no warranty that the Service will meet your requirements or will be available on an uninterrupted error-free basis. As the Service uses artificial intelligence to assist in preparing the Content, we do not provide any warranties in respect of the accuracy, completeness, timeliness or supply of any Content. 

1. Despite any other provision to the contrary in this Agreement, we will not under any circumstances be liable to you, any User or any third party in respect of the accuracy of any Content or your use or reliance on any Content created by or derived from the Service, including any decisions you make in respect of your business or employees arising from the use of the Service or Content, which remains your sole responsibility. In particular, you acknowledge that Fergus uses artificial intelligence systems to assist in providing the Service and the Content that you receive from the Service. Given the nature of artificial intelligence and machine learning systems and reliance on third parties to input accurate and complete information into the Service, use of the Service may result in incorrect or incomplete data being included in the Service or the Content. 

1. You acknowledge and agree that you shall comply (in all respects) with any restrictions of use in any agreement entered into in respect of any third party software (including any artificial intelligence software) used in connection with (or incorporated into) the Service, as notified by us. 

1. Fergus reserves the right to monitor your use of the Fergus Site, App, Service and Content at any time without notice. 

1. Limitation of Liability 

1. To the extent we do become liable to you in connection with this Agreement and/or the Service, then all claims by you against us are, to the extent permitted by law, limited in aggregate to the Fees paid by you in the first year of the term of this Agreement, unless such liability has arisen as a sole and direct result of our  fraud. 

1. You will indemnify us for any loss, damage or costs incurred by us from any claim (including a claim by any of our suppliers, partners or licensors), where the relevant claim arises from: (i) your (or any of your Users) unauthorised use or disclosure of the Service or Content; (ii) any inaccuracy in, or incompleteness of, any User Materials; or (iii) any breach by you (or any of your Users) of clause 6.1 or the warranties in clause 8.3. 

1. Except in respect of any liability under the indemnity in clause 13.2, under no circumstances will either you or we (or any of our third party licensors or suppliers), or any of their directors, officers or employees, be liable, whether in contract, equity, tort (including negligence, breach of statutory duty or otherwise) or any other theory of liability for any direct or indirect loss of profits, loss of revenue, loss of User Materials, loss of anticipated savings; or for any indirect, special or consequential loss whatsoever. 

1. Privacy 

1. We collect and process the Personal Information of your Users and customer when you (or your Users, as applicable) access or use the Website, the App and/or the Service. We may also collect certain information about the performance of the Website, App and Service and your (and your Users’) use of the Website, App, Services and/or Content.  

1. You must ensure that your Users are aware of and read the Privacy Policy. 

1. Our access to and use of all such Personal Information is governed by our Privacy Policy. By agreeing to this Agreement, you agree to the way we handle your (and your Users’ and customers) personal information, as specified in (and anticipated by) these terms of use and our Privacy Policy.  

1. You must comply with all Data Privacy Laws in connection with your collection, use and disclosure of the personal information of any person. You will not (and will ensure your Users do not) use the Service: (i) to collect personal information about third parties other than as anticipated by the Service; or (ii) in a way that violates (or may be considered inconsistent with) the privacy of any person. This includes, if you are located (or a company registered) in the United Kingdom, complying with the data processing addendum (in the form available at [link), which shall form part of your Agreement with us) 

1. You warrant that you have obtained all necessary consents and approvals from all individuals (including your Users) to ensure that we are able to lawfully process all personal information of such persons in the manner specified in (and anticipated by) this Agreement and the Service. 

1. You will, upon becoming aware of a Security incident, or any other breach, or suspected breach, of your security safeguards, notify us without undue delay and shall provide timely information relating to the Security Incident as it becomes known or as is reasonably requested by us. 

1. Intellectual Property Rights 

1. You acknowledge that Fergus owns all Intellectual Property Rights in the Fergus Site, the App, the Service, the Software and the Content, and nothing in this Agreement constitutes a transfer of any such Intellectual Property Rights to you. 

1. You must not directly or indirectly do anything that would or might invalidate or put in dispute Fergus' Intellectual Property Rights in the Fergus Site, the App, the Service, the Software and the Content (including any of the Fergus registered or unregistered trademarks). 

1. You must comply with Fergus' reasonable usage guidelines and directions with respect to the Fergus Site, the App, the Service, the Software and the Content as notified to you from time to time. 

1. If, you or any of your Users send us any comment, feedback, submission, creative idea, suggestion, proposal, plan, or other material, by any means (Comment), you agree that we may use any Comment for any purpose, without restriction, and shall be under no obligation to maintain any Comment in confidence or respond to any Comment. 

1. Confidentiality 

1. A party must not, without the prior written consent of the other, use or disclose the other party’s Confidential Information unless expressly permitted by this Agreement or required to do so by law or any regulatory authority. 

1. A party may: 

1. use the Confidential Information of the other party solely for the purposes of complying with its obligations and exercising its rights under this Agreement; and 

1. disclose the Confidential Information of the other party to its personnel or advisers to the extent necessary for them to know the information for purposes related to this Agreement, but only if reasonable steps are taken to ensure that the confidentiality of the information is retained. 

1. Apple and Google terms 

1. For the purposes of this clause 17.1: 

Apple means Apple Inc and other companies within its group. 

Apple Store means the store/platform operated by Apple making the App available to iOS devices.  

Google means Alphabet Inc and other companies within its group. 

Google Play Store means the store/platform operated by Google making the App available to Android devices. 

1. You acknowledge and agree that: 

1. where the App is downloaded from the Apple Store: 

1. your rights to install and use the App are subject to these Terms of Use and the relevant terms in the Apple Store terms of service; 

1. Apple is not responsible for the App in any way, including for any maintenance or support of the App; 

1. to the maximum extent permitted by law, Apple has no warranty obligations with respect to the App; 

1. we (and not Apple) are responsible for addressing any claims by you or a third party in connection with the App (including any claims by a third party that the App breaches that persons intellectual property rights); and 

1. though this agreement is entered into between us and you, Apple, as a third party beneficiary under this agreement, will have the right to enforce these Terms of Use against you. 

1. Where the App is downloaded from the Google Play Store: 

1. your rights to install and use the App are subject to these Terms of Use and the relevant terms in the Google Play Store terms of service; 

1. Google is not responsible for the App in any way, including any maintenance or support of the App; and 

1. we (and not Google) are responsible for addressing any claims by you or a third party in connection with the App (including any claims by a third party that the App breaches that persons intellectual property rights). 

1. For the benefit of each of us, Apple and Google, you represent and warrant that you are not, and will not, be located in any country that is the subject of a US Government embargo or that has been designated by the US Government as a “terrorist supporting” country and that you are not listed on any US Government list of prohibited or restricted parties. 

1. Fergus Pay 

18.1 We have arranged for Stripe to collect any funds due to you from the selling of your goods and services via Fergus Pay. By using Fergus Pay and accepting the funds collected on your behalf by Stripe, you agree to the terms of the Fergus Pay Agreement, a copy of which can be obtained here. 

1. General 

19.1 The use of the Fergus Site, App and Service and this Agreement shall be governed by the laws of the country in which the Fergus entity that you are contracting with is registered and you agree to submit to the exclusive jurisdiction of the courts of that country in respect of any disputes or claims arising out of or in connection with this agreement or the Service.  

19.2 Neither party shall be liable for any delay or failure to fulfil its obligations under this Agreement arising directly or indirectly from any circumstance beyond the reasonable control of the affected party (including, without limitation, acts of God, flood, earthquake, storm, fire, epidemic, pandemic, war, embargoes, riot or civil disturbance), provided that the affected party shall notify the other party as soon as practicable of the events and use its reasonable endeavours to continue to perform its obligations and mitigate the effects of the event. 

19.3 You must not assign, sub-licence or otherwise deal in any similar way with any of your rights under this Agreement without the prior written consent of Fergus. 

19.4 Nothing contained in this Agreement creates any relationship of partnership or agency between the parties. 

19.5 If a provision of this Agreement is invalid or unenforceable it is to be read down or severed to the extent necessary, without affecting the validity or enforceability of the remaining provisions. 

1. Contacting Fergus 

20.1 You can contact Fergus via email at support@fergus.com  

FERGUS: TERMS OF SERVICE 

By accessing any Fergus Site or the App, you agree to be bound by these terms and conditions, which together with our Privacy Policy, form a binding agreement between you and us (Agreement). If you do not agree to these terms and conditions then you should not access the Fergus Site or download the App. 

If you are accessing the Service on behalf of a Customer, you confirm that you have the authority to act on behalf of that entity. 

From time to time we may need to make changes to these terms of service. We will notify you of any by posting them on the Fergus Site or by emailing you, and you agree by continuing to access or use the Fergus Site and/or the App to be bound by the updated terms. 

1. Definitions 

1. Unless the context requires otherwise: 

“Account” means an account registered by a Customer through the Fergus Site or the App, which enables the Customer (and its Users) to access and use the Service. 

“App” means the Fergus online application (available via the Apple Store or Google Play Store) through which the Service may be accessed. 

“Confidential Information” means all information provided by one party to the other in connection with this Agreement where such information is identified as confidential at the time of its disclosure or ought reasonably be considered confidential based on its content, nature or the manner of its disclosure, but excludes: 

1. information that enters the public domain or is disclosed to a party by a third party, other than through a breach of this Agreement, and 

1. information developed independently by a party. 

“Content” has the meaning given to it in clause 7.1. 

“Customer”, “you” or “your” means any person who registers to access and use the Service, and in whose name the Account is created.  

“Data Privacy Laws” means the privacy laws that either you or we are legally obliged to comply with, including (as applicable), the NZ Privacy Act 2020, the Australian Privacy Act 1988, General Data Protection Regulation (EU) 2016/679 (EU GDPR) and/or the United Kingdom Data Protection Regulation (UK GDPR). 

“Fees” means all fees payable by you to Fergus (including but not limited to, subscription fees, training fees, licensing fees and service based fees), as specified on the Website or as otherwise agreed in writing by Fergus with you. 

“Fergus”, “we”, “our” or “us” means the Fergus entity that you contract with pursuant to these terms of service. This will be: 

1. if you are located (or a company registered) in Australia; Fergus Software Pty Limited (ACN 605 226 417)); or 

1. if you are located (or a company registered) in the United Kingdom, Fergus Software Systems (UK) Limited; or 

1. if you are located (or a company registered) elsewhere, Fergus Software Limited in New Zealand (NZBN 9429031078085). 

 

“Fergus Site” means the Fergus website (www.fergus.com), or any other such website that supersedes it in the future. 

“Intellectual Property Rights” means all intellectual property rights, including all copyright, moral rights, patents, trademarks, design rights, trade secrets, domain names, know how and other rights of a similar nature, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application. 

“Privacy Policy” means the Fergus Privacy Policy (as updated from time to time), available at https://fergus.com/privacy-policy/. 

“Service” means the job management Service made available by Fergus through the Fergus Site and/or the App, including but not limited to its customer retention management and work management software and its mobile applications.   

“Software” means the Fergus software and other third party software (including artificial intelligence systems) used by Fergus to provide the Service. 

“User” means any of your personnel, contractors (or other third parties) that access and use the Service on your behalf or otherwise input User Materials into the Service in connection with your Account. 

“User Materials” means: 

1. any and all information, data, documents, images, photos and videos (including Account registration information and your customer information) that you or your Users input into the Service or otherwise make available to Fergus (including via the Website or the App); and 

1. any and all data that relates to you or your Users that a third party (for example, a supplier of trade materials) inputs into the Service for you in connection with your Account, 

but for clarity, excludes any Content. 

1. Service 

1. Subject to compliance by you with this Agreement we grant to you and you accept from us, a non-exclusive, non-transferable and non-assignable right for you (and your Users) to access and use the Service during the Term in accordance with this Agreement. 

1. If you wish to access and use the App and the Service, you must become a registered user and activate an Account via the Fergus Site. 

1. You warrant that all User Materials you (or your Users or other third parties) supply to us or input into the Service is accurate, complete and up to date. You acknowledge that the Service (and the accuracy, completeness and reliability of the outputs you receive from it) depends entirely on the accuracy and completeness of all User Materials inputted into the Service.   

1. Users 

1. Access to and use of password protected or secure areas of the Fergus Site, App and Service are restricted to you and your Users only. You are responsible for keeping all your access information for the App and the Service, including email addresses and log-on credentials, secret and secure, and agree: 

1. to ensure that each User only accesses and used the Service in accordance with the relevant licence granted to that User; 

1. not to disclose and to ensure that Users do not disclose their user name or log-on credentials to any other person; 

1. to ensure that none of your Users (or any other person under your control) attempts to gain unauthorised access to the App, Service or Content; and 

1. to inform us immediately of any known or suspected unauthorised access to and use of the App, Service or Content. 

1. You must notify each User of the terms of this Agreement and ensure that each of them strictly comply with these terms.  You shall be responsible (and liable) for any failure of any User to comply with the terms of this Agreement (as if it were a breach by you of this Agreement). 

1. Fees 

1. In consideration of your (and your Users’) use of the Service, you will pay us the Fees.  

1. Our Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties. If we are required to pay or collect any goods and services or value-added tax on any Fees charged under this Agreement, then such taxes and/or duties will be billed to and paid by you. 

1. Unless otherwise stated in your billing plan, Fergus charges the Fees on a per user basis with a plan type base. It solely up to you to maintain your own plan, type, user levels and other Fergus products used via the Fergus software. 

1. We may, from time to time, cancel the continued availability of any subscription package. However, we will provide you with advance notice of any such cancellation.  

1. Fees are subject to change, provided that you will be given advance notice of any impending Fee changes in accordance with this Agreement.' 

1. Payment 

1. Fees shall be payable by credit card. Credit card transactions are securely processed by third-party providers indicated when your credit card is entered, and are subject to the third-party providers terms of service available on their website. The third-party providers are solely responsible for such transactions and we exclude all liability for such transactions to the extent not restricted by law. The third-party providers maintain administrative, technical, and physical procedures to protect information stored on its servers, as outlined within its own privacy policy.   

1. If you do not pay the Fees on the due date for payment (including where your payment has been dishonoured), we: 

1. will suspend access to the Service if payment is not made in full of all amounts due and owing to us within 14 days of invoice date; 

1. may charge interest on the unpaid amount from the due date until the date of actual payment at 2% per annum over the base overdraft facility rate charged by our bankers from time to time, compounded monthly until paid; and  

1. may charge you all costs incurred by us in connection with the recovery of the unpaid amounts, including the charges from debt recovery services and legal fees on a solicitor and own client basis. 

1. Restrictions  

1. You agree not to (and to ensure that your Users do not): 

1. use the Fergus Site, App, Service or Content for any purpose that is not authorised by this Agreement or the subscription plan that you have subscribed for, or is otherwise unlawful or fraudulent; 

1. share anything through the Fergus Site, App or the Service that may be offensive or infringes the rights of any person; 

1. use the Fergus Site, App or Service to send outbound emails for marketing purposes; 

1. access or use the Fergus Site, App or Service in any manner that could damage, disable, overburden, or impair the Fergus Site, App or Service, or any Software, accounts, programs, computer systems or networks; 

1. gain unauthorised access to any parts of the Service or any Software, accounts, programs, computer systems or networks; 

1. interfere or attempt to interfere with the proper working of the Fergus Site, App, Service or any Software, accounts, programs, computer systems or networks; 

1. use any robot, spider, scraper or other automated means to access the Service or any Software, accounts, programs computer systems or networks; 

1. modify, copy, adapt, reproduce, disassemble, decompile, reverse engineer or extract the source code of any part of the Fergus Site, App, Service or Content or make derivative works of any Content (including by linking or framing any Content to a third party website); or 

1. resell, lease, or sublicense the Service or Content in any way not expressly permitted by us. 

1. Fergus reserves the right to disable any unauthorised links or frames and disclaims any responsibility for the content available on any other website reached by links to or from the Fergus Site. 

1. Content  

1. The material displayed on, and all content and data accessed, downloaded or otherwise obtained on or through the Fergus Site, the App and/or the Service, including without limitation, all real time or other information, text, materials, graphics, software, tools, results derived from the use of software and tools, advertisements, names, logos and trademarks, but excluding any User Materials (Content) are protected by intellectual property laws. All Intellectual Property Rights, title and interest in and to the Content are owned by Fergus or its third party suppliers or licensors. 

1. User Materials 

1. All User Materials will be (and will remain) owned by you (or your Users or customers, as applicable). However, you grant to us a licence to access, use and disclose your User Materials for the purposes of providing the Service, exercising our rights and performing our obligations under this Agreement, analysing and improving the Fergus Site, App, Service and Content and communicating with you about the Service, your Agreement and any other matters that may be of interest.  We may also disclose your User Materials in connection with a proposed purchase or acquisition of our business or assets, where required by applicable law or any court, or in response to a request by a legitimate law enforcement agency or regulatory body. 

1. You grant to us a non-exclusive royalty free world-wide and irrevocable licence permitting us to copy, anonymize, aggregate, process and display User Materials to derive anonymous statistical and usage data, and data about the Fergus Site, App, Service, Content and your use of them, provided such data cannot be used to identify your Users or any other individual (Anonymous Data). We may combine or incorporate such Anonymous Data with or into other similar data and information available, derived or obtained from other clients, licensees, users, or otherwise e (when so combined or incorporated, referred to as Aggregate Data). We will be the owners of all rights, title and interest in and to the Anonymous Data and Aggregate Data. 

1. You warrant and represent that: 

1. you have the right to grant the rights in clauses 8.1 and 8.2 in respect of all User Materials, and input the User Materials into the Fergus Site or the App in the manner anticipated by the Agreement and the Service; and 

1. use of the User Materials by us, you or any of your Users in the manner anticipated by this Agreement and the Service will not breach any laws or the rights of any person (including the privacy or intellectual property rights of any person). 

1. You are solely responsible for maintaining a copy of all User Materials. We do not make any guarantees around loss or corruption of any User Materials. 

1. We reserve the right to remove or replace, any Content or User Materials from the Fergus Site, App or Service that may expose us to potential liability, if we lose our right to access and use any third party data or if we consider that your continued access to the relevant Content or data may place us in breach of any law or any third party contract. 

1. Free trial 

1. We may offer you a free trial of the Service. Any free trial offered by us will commence on the day that we make the trial service available to you and will end on the last day of the trial period specified on the Fergus Site. You may not register for (or allow any other person to register on your behalf for) any more than one free trial of the Service. If it is determined that you have directly or indirectly obtained access to more than one free trial, we may charge you the relevant fees applicable to the Service provided during your additional trial(s). 

1. At the end of a trial period, we will disable your access to the Service (and will remove your User Material from the Service within 30 days), unless you become a registered user of the Service on a paid basis.  The Fergus Site, App and Service are supplied on an “as is – where is” basis during any trial period, and as such any warranties given by us in these terms of service do not apply. 

1. Third Party Websites, Content, Products and Services 

1. The Fergus Site provides links to websites and access to content, products and services of third parties, including other users, advertisers, affiliates and sponsors of the Fergus Site and App. Fergus is not responsible for third party content provided on or through the Fergus Site or the App and you bear all risks associated with the access and use of such websites and third party content, products and services. 

1. Term and Termination  

1. The term of your Agreement with us commences on the first day you access the Service and continues until either Fergus or you terminate this Agreement in accordance with these terms of service. 

1. We may terminate this Agreement (and the plan you have subscribed for) at any time by providing you with written notice (by email).  

1. You may terminate this Agreement (and cancel the plan you have subscribed for) at any time by providing us with written notice (by email). You will still need to pay all applicable Fees up to and including the  end of the month in which you terminate this Agreement. 

1. We may terminate this Agreement (and cancel the plan you have subscribed for) or limit your access to or use of the App, Service or any Content immediately, by notice to you, if: 

1. you (or any of your Users) breach any term of this Agreement; 

1. you fail to pay any Fees by the due date for payment; or 

1. you become insolvent, make any arrangement with your creditors, go into liquidation, have a receiver appointed over any of your assets, or are subject to any similar insolvency event in any jurisdiction. 

1. You may terminate this Agreement (and cancel the plan you have subscribed for), by notice in writing to us, immediately if: 

1. we fail to comply with any material term of this Agreement and do not remedy the breach within 20 days of receiving notice of the breach from you; or 

1. we become insolvent, make any arrangement with our creditors, go into liquidation, have a receiver appointed over any of our assets, or are subject to any similar insolvency event in any jurisdiction. 

1. If we terminate under clause 11.2 or you terminate under clause 11.5, we may provide you with a refund of any Fees paid you in advance that relate to the period after termination. Otherwise, no refunds of Fees will be available on termination of this Agreement. 

1. We may also suspend or limit your access to the Fergus Site or the App at any time for such time as is necessary to carry out maintenance. 

1. Upon termination of this Agreement between us (for any reason), you must (and must ensure your Users) immediately cease to access or use the Service and Fergus may remove all of your User Material from the Service.  

1. Disclaimers 

1. We will use our commercially reasonable efforts to ensure that the Service is accessible by you and your Users in accordance with this Agreement. 

1. In the event of any breach of clause 12.1 or any other term, condition or warranty that Fergus is unable to exclude by law, your sole remedy will be (at our option) the resupply of the non-conforming Service within a commercially reasonable time or a refund of the Fees paid by you for such non-conforming Service. 

1. Other than as expressly provided in clause 12.1 above, the Fergus Site, the App, the Service and all Content provided on or through the Service, are provided on an “as is” and “as available” basis. Fergus expressly disclaims all warranties or terms of any kind, whether express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose and non-infringement with respect to all Content provided on or through the Fergus Site. Fergus makes no warranty that the Service will meet your requirements or will be available on an uninterrupted error-free basis. As the Service uses artificial intelligence to assist in preparing the Content, we do not provide any warranties in respect of the accuracy, completeness, timeliness or supply of any Content. 

1. Despite any other provision to the contrary in this Agreement, we will not under any circumstances be liable to you, any User or any third party in respect of the accuracy of any Content or your use or reliance on any Content created by or derived from the Service, including any decisions you make in respect of your business or employees arising from the use of the Service or Content, which remains your sole responsibility. In particular, you acknowledge that Fergus uses artificial intelligence systems to assist in providing the Service and the Content that you receive from the Service. Given the nature of artificial intelligence and machine learning systems and reliance on third parties to input accurate and complete information into the Service, use of the Service may result in incorrect or incomplete data being included in the Service or the Content. 

1. You acknowledge and agree that you shall comply (in all respects) with any restrictions of use in any agreement entered into in respect of any third party software (including any artificial intelligence software) used in connection with (or incorporated into) the Service, as notified by us. 

1. Fergus reserves the right to monitor your use of the Fergus Site, App, Service and Content at any time without notice. 

1. Limitation of Liability 

1. To the extent we do become liable to you in connection with this Agreement and/or the Service, then all claims by you against us are, to the extent permitted by law, limited in aggregate to the Fees paid by you in the first year of the term of this Agreement, unless such liability has arisen as a sole and direct result of our  fraud. 

1. You will indemnify us for any loss, damage or costs incurred by us from any claim (including a claim by any of our suppliers, partners or licensors), where the relevant claim arises from: (i) your (or any of your Users) unauthorised use or disclosure of the Service or Content; (ii) any inaccuracy in, or incompleteness of, any User Materials; or (iii) any breach by you (or any of your Users) of clause 6.1 or the warranties in clause 8.3. 

1. Except in respect of any liability under the indemnity in clause 13.2, under no circumstances will either you or we (or any of our third party licensors or suppliers), or any of their directors, officers or employees, be liable, whether in contract, equity, tort (including negligence, breach of statutory duty or otherwise) or any other theory of liability for any direct or indirect loss of profits, loss of revenue, loss of User Materials, loss of anticipated savings; or for any indirect, special or consequential loss whatsoever. 

1. Privacy 

1. We collect and process the Personal Information of your Users and customer when you (or your Users, as applicable) access or use the Website, the App and/or the Service. We may also collect certain information about the performance of the Website, App and Service and your (and your Users’) use of the Website, App, Services and/or Content.  

1. You must ensure that your Users are aware of and read the Privacy Policy. 

1. Our access to and use of all such Personal Information is governed by our Privacy Policy. By agreeing to this Agreement, you agree to the way we handle your (and your Users’ and customers) personal information, as specified in (and anticipated by) these terms of use and our Privacy Policy.  

1. You must comply with all Data Privacy Laws in connection with your collection, use and disclosure of the personal information of any person. You will not (and will ensure your Users do not) use the Service: (i) to collect personal information about third parties other than as anticipated by the Service; or (ii) in a way that violates (or may be considered inconsistent with) the privacy of any person. This includes, if you are located (or a company registered) in the United Kingdom, complying with the data processing addendum (in the form available at [link), which shall form part of your Agreement with us) 

1. You warrant that you have obtained all necessary consents and approvals from all individuals (including your Users) to ensure that we are able to lawfully process all personal information of such persons in the manner specified in (and anticipated by) this Agreement and the Service. 

1. You will, upon becoming aware of a Security incident, or any other breach, or suspected breach, of your security safeguards, notify us without undue delay and shall provide timely information relating to the Security Incident as it becomes known or as is reasonably requested by us. 

1. Intellectual Property Rights 

1. You acknowledge that Fergus owns all Intellectual Property Rights in the Fergus Site, the App, the Service, the Software and the Content, and nothing in this Agreement constitutes a transfer of any such Intellectual Property Rights to you. 

1. You must not directly or indirectly do anything that would or might invalidate or put in dispute Fergus' Intellectual Property Rights in the Fergus Site, the App, the Service, the Software and the Content (including any of the Fergus registered or unregistered trademarks). 

1. You must comply with Fergus' reasonable usage guidelines and directions with respect to the Fergus Site, the App, the Service, the Software and the Content as notified to you from time to time. 

1. If, you or any of your Users send us any comment, feedback, submission, creative idea, suggestion, proposal, plan, or other material, by any means (Comment), you agree that we may use any Comment for any purpose, without restriction, and shall be under no obligation to maintain any Comment in confidence or respond to any Comment. 

1. Confidentiality 

1. A party must not, without the prior written consent of the other, use or disclose the other party’s Confidential Information unless expressly permitted by this Agreement or required to do so by law or any regulatory authority. 

1. A party may: 

1. use the Confidential Information of the other party solely for the purposes of complying with its obligations and exercising its rights under this Agreement; and 

1. disclose the Confidential Information of the other party to its personnel or advisers to the extent necessary for them to know the information for purposes related to this Agreement, but only if reasonable steps are taken to ensure that the confidentiality of the information is retained. 

1. Apple and Google terms 

1. For the purposes of this clause 17.1: 

Apple means Apple Inc and other companies within its group. 

Apple Store means the store/platform operated by Apple making the App available to iOS devices.  

Google means Alphabet Inc and other companies within its group. 

Google Play Store means the store/platform operated by Google making the App available to Android devices. 

1. You acknowledge and agree that: 

1. where the App is downloaded from the Apple Store: 

1. your rights to install and use the App are subject to these Terms of Use and the relevant terms in the Apple Store terms of service; 

1. Apple is not responsible for the App in any way, including for any maintenance or support of the App; 

1. to the maximum extent permitted by law, Apple has no warranty obligations with respect to the App; 

1. we (and not Apple) are responsible for addressing any claims by you or a third party in connection with the App (including any claims by a third party that the App breaches that persons intellectual property rights); and 

1. though this agreement is entered into between us and you, Apple, as a third party beneficiary under this agreement, will have the right to enforce these Terms of Use against you. 

1. Where the App is downloaded from the Google Play Store: 

1. your rights to install and use the App are subject to these Terms of Use and the relevant terms in the Google Play Store terms of service; 

1. Google is not responsible for the App in any way, including any maintenance or support of the App; and 

1. we (and not Google) are responsible for addressing any claims by you or a third party in connection with the App (including any claims by a third party that the App breaches that persons intellectual property rights). 

1. For the benefit of each of us, Apple and Google, you represent and warrant that you are not, and will not, be located in any country that is the subject of a US Government embargo or that has been designated by the US Government as a “terrorist supporting” country and that you are not listed on any US Government list of prohibited or restricted parties. 

1. Fergus Pay 

18.1 We have arranged for Stripe to collect any funds due to you from the selling of your goods and services via Fergus Pay. By using Fergus Pay and accepting the funds collected on your behalf by Stripe, you agree to the terms of the Fergus Pay Agreement, a copy of which can be obtained here. 

1. General 

19.1 The use of the Fergus Site, App and Service and this Agreement shall be governed by the laws of the country in which the Fergus entity that you are contracting with is registered and you agree to submit to the exclusive jurisdiction of the courts of that country in respect of any disputes or claims arising out of or in connection with this agreement or the Service.  

19.2 Neither party shall be liable for any delay or failure to fulfil its obligations under this Agreement arising directly or indirectly from any circumstance beyond the reasonable control of the affected party (including, without limitation, acts of God, flood, earthquake, storm, fire, epidemic, pandemic, war, embargoes, riot or civil disturbance), provided that the affected party shall notify the other party as soon as practicable of the events and use its reasonable endeavours to continue to perform its obligations and mitigate the effects of the event. 

19.3 You must not assign, sub-licence or otherwise deal in any similar way with any of your rights under this Agreement without the prior written consent of Fergus. 

19.4 Nothing contained in this Agreement creates any relationship of partnership or agency between the parties. 

19.5 If a provision of this Agreement is invalid or unenforceable it is to be read down or severed to the extent necessary, without affecting the validity or enforceability of the remaining provisions. 

1. Contacting Fergus 

20.1 You can contact Fergus via email at support@fergus.com  

FERGUS: TERMS OF SERVICE 

By accessing any Fergus Site or the App, you agree to be bound by these terms and conditions, which together with our Privacy Policy, form a binding agreement between you and us (Agreement). If you do not agree to these terms and conditions then you should not access the Fergus Site or download the App. 

If you are accessing the Service on behalf of a Customer, you confirm that you have the authority to act on behalf of that entity. 

From time to time we may need to make changes to these terms of service. We will notify you of any by posting them on the Fergus Site or by emailing you, and you agree by continuing to access or use the Fergus Site and/or the App to be bound by the updated terms. 

1. Definitions 

1. Unless the context requires otherwise: 

“Account” means an account registered by a Customer through the Fergus Site or the App, which enables the Customer (and its Users) to access and use the Service. 

“App” means the Fergus online application (available via the Apple Store or Google Play Store) through which the Service may be accessed. 

“Confidential Information” means all information provided by one party to the other in connection with this Agreement where such information is identified as confidential at the time of its disclosure or ought reasonably be considered confidential based on its content, nature or the manner of its disclosure, but excludes: 

1. information that enters the public domain or is disclosed to a party by a third party, other than through a breach of this Agreement, and 

1. information developed independently by a party. 

“Content” has the meaning given to it in clause 7.1. 

“Customer”, “you” or “your” means any person who registers to access and use the Service, and in whose name the Account is created.  

“Data Privacy Laws” means the privacy laws that either you or we are legally obliged to comply with, including (as applicable), the NZ Privacy Act 2020, the Australian Privacy Act 1988, General Data Protection Regulation (EU) 2016/679 (EU GDPR) and/or the United Kingdom Data Protection Regulation (UK GDPR). 

“Fees” means all fees payable by you to Fergus (including but not limited to, subscription fees, training fees, licensing fees and service based fees), as specified on the Website or as otherwise agreed in writing by Fergus with you. 

“Fergus”, “we”, “our” or “us” means the Fergus entity that you contract with pursuant to these terms of service. This will be: 

1. if you are located (or a company registered) in Australia; Fergus Software Pty Limited (ACN 605 226 417)); or 

1. if you are located (or a company registered) in the United Kingdom, Fergus Software Systems (UK) Limited; or 

1. if you are located (or a company registered) elsewhere, Fergus Software Limited in New Zealand (NZBN 9429031078085). 

 

“Fergus Site” means the Fergus website (www.fergus.com), or any other such website that supersedes it in the future. 

“Intellectual Property Rights” means all intellectual property rights, including all copyright, moral rights, patents, trademarks, design rights, trade secrets, domain names, know how and other rights of a similar nature, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application. 

“Privacy Policy” means the Fergus Privacy Policy (as updated from time to time), available at https://fergus.com/privacy-policy/. 

“Service” means the job management Service made available by Fergus through the Fergus Site and/or the App, including but not limited to its customer retention management and work management software and its mobile applications.   

“Software” means the Fergus software and other third party software (including artificial intelligence systems) used by Fergus to provide the Service. 

“User” means any of your personnel, contractors (or other third parties) that access and use the Service on your behalf or otherwise input User Materials into the Service in connection with your Account. 

“User Materials” means: 

1. any and all information, data, documents, images, photos and videos (including Account registration information and your customer information) that you or your Users input into the Service or otherwise make available to Fergus (including via the Website or the App); and 

1. any and all data that relates to you or your Users that a third party (for example, a supplier of trade materials) inputs into the Service for you in connection with your Account, 

but for clarity, excludes any Content. 

1. Service 

1. Subject to compliance by you with this Agreement we grant to you and you accept from us, a non-exclusive, non-transferable and non-assignable right for you (and your Users) to access and use the Service during the Term in accordance with this Agreement. 

1. If you wish to access and use the App and the Service, you must become a registered user and activate an Account via the Fergus Site. 

1. You warrant that all User Materials you (or your Users or other third parties) supply to us or input into the Service is accurate, complete and up to date. You acknowledge that the Service (and the accuracy, completeness and reliability of the outputs you receive from it) depends entirely on the accuracy and completeness of all User Materials inputted into the Service.   

1. Users 

1. Access to and use of password protected or secure areas of the Fergus Site, App and Service are restricted to you and your Users only. You are responsible for keeping all your access information for the App and the Service, including email addresses and log-on credentials, secret and secure, and agree: 

1. to ensure that each User only accesses and used the Service in accordance with the relevant licence granted to that User; 

1. not to disclose and to ensure that Users do not disclose their user name or log-on credentials to any other person; 

1. to ensure that none of your Users (or any other person under your control) attempts to gain unauthorised access to the App, Service or Content; and 

1. to inform us immediately of any known or suspected unauthorised access to and use of the App, Service or Content. 

1. You must notify each User of the terms of this Agreement and ensure that each of them strictly comply with these terms.  You shall be responsible (and liable) for any failure of any User to comply with the terms of this Agreement (as if it were a breach by you of this Agreement). 

1. Fees 

1. In consideration of your (and your Users’) use of the Service, you will pay us the Fees.  

1. Our Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties. If we are required to pay or collect any goods and services or value-added tax on any Fees charged under this Agreement, then such taxes and/or duties will be billed to and paid by you. 

1. Unless otherwise stated in your billing plan, Fergus charges the Fees on a per user basis with a plan type base. It solely up to you to maintain your own plan, type, user levels and other Fergus products used via the Fergus software. 

1. We may, from time to time, cancel the continued availability of any subscription package. However, we will provide you with advance notice of any such cancellation.  

1. Fees are subject to change, provided that you will be given advance notice of any impending Fee changes in accordance with this Agreement.' 

1. Payment 

1. Fees shall be payable by credit card. Credit card transactions are securely processed by third-party providers indicated when your credit card is entered, and are subject to the third-party providers terms of service available on their website. The third-party providers are solely responsible for such transactions and we exclude all liability for such transactions to the extent not restricted by law. The third-party providers maintain administrative, technical, and physical procedures to protect information stored on its servers, as outlined within its own privacy policy.   

1. If you do not pay the Fees on the due date for payment (including where your payment has been dishonoured), we: 

1. will suspend access to the Service if payment is not made in full of all amounts due and owing to us within 14 days of invoice date; 

1. may charge interest on the unpaid amount from the due date until the date of actual payment at 2% per annum over the base overdraft facility rate charged by our bankers from time to time, compounded monthly until paid; and  

1. may charge you all costs incurred by us in connection with the recovery of the unpaid amounts, including the charges from debt recovery services and legal fees on a solicitor and own client basis. 

1. Restrictions  

1. You agree not to (and to ensure that your Users do not): 

1. use the Fergus Site, App, Service or Content for any purpose that is not authorised by this Agreement or the subscription plan that you have subscribed for, or is otherwise unlawful or fraudulent; 

1. share anything through the Fergus Site, App or the Service that may be offensive or infringes the rights of any person; 

1. use the Fergus Site, App or Service to send outbound emails for marketing purposes; 

1. access or use the Fergus Site, App or Service in any manner that could damage, disable, overburden, or impair the Fergus Site, App or Service, or any Software, accounts, programs, computer systems or networks; 

1. gain unauthorised access to any parts of the Service or any Software, accounts, programs, computer systems or networks; 

1. interfere or attempt to interfere with the proper working of the Fergus Site, App, Service or any Software, accounts, programs, computer systems or networks; 

1. use any robot, spider, scraper or other automated means to access the Service or any Software, accounts, programs computer systems or networks; 

1. modify, copy, adapt, reproduce, disassemble, decompile, reverse engineer or extract the source code of any part of the Fergus Site, App, Service or Content or make derivative works of any Content (including by linking or framing any Content to a third party website); or 

1. resell, lease, or sublicense the Service or Content in any way not expressly permitted by us. 

1. Fergus reserves the right to disable any unauthorised links or frames and disclaims any responsibility for the content available on any other website reached by links to or from the Fergus Site. 

1. Content  

1. The material displayed on, and all content and data accessed, downloaded or otherwise obtained on or through the Fergus Site, the App and/or the Service, including without limitation, all real time or other information, text, materials, graphics, software, tools, results derived from the use of software and tools, advertisements, names, logos and trademarks, but excluding any User Materials (Content) are protected by intellectual property laws. All Intellectual Property Rights, title and interest in and to the Content are owned by Fergus or its third party suppliers or licensors. 

1. User Materials 

1. All User Materials will be (and will remain) owned by you (or your Users or customers, as applicable). However, you grant to us a licence to access, use and disclose your User Materials for the purposes of providing the Service, exercising our rights and performing our obligations under this Agreement, analysing and improving the Fergus Site, App, Service and Content and communicating with you about the Service, your Agreement and any other matters that may be of interest.  We may also disclose your User Materials in connection with a proposed purchase or acquisition of our business or assets, where required by applicable law or any court, or in response to a request by a legitimate law enforcement agency or regulatory body. 

1. You grant to us a non-exclusive royalty free world-wide and irrevocable licence permitting us to copy, anonymize, aggregate, process and display User Materials to derive anonymous statistical and usage data, and data about the Fergus Site, App, Service, Content and your use of them, provided such data cannot be used to identify your Users or any other individual (Anonymous Data). We may combine or incorporate such Anonymous Data with or into other similar data and information available, derived or obtained from other clients, licensees, users, or otherwise e (when so combined or incorporated, referred to as Aggregate Data). We will be the owners of all rights, title and interest in and to the Anonymous Data and Aggregate Data. 

1. You warrant and represent that: 

1. you have the right to grant the rights in clauses 8.1 and 8.2 in respect of all User Materials, and input the User Materials into the Fergus Site or the App in the manner anticipated by the Agreement and the Service; and 

1. use of the User Materials by us, you or any of your Users in the manner anticipated by this Agreement and the Service will not breach any laws or the rights of any person (including the privacy or intellectual property rights of any person). 

1. You are solely responsible for maintaining a copy of all User Materials. We do not make any guarantees around loss or corruption of any User Materials. 

1. We reserve the right to remove or replace, any Content or User Materials from the Fergus Site, App or Service that may expose us to potential liability, if we lose our right to access and use any third party data or if we consider that your continued access to the relevant Content or data may place us in breach of any law or any third party contract. 

1. Free trial 

1. We may offer you a free trial of the Service. Any free trial offered by us will commence on the day that we make the trial service available to you and will end on the last day of the trial period specified on the Fergus Site. You may not register for (or allow any other person to register on your behalf for) any more than one free trial of the Service. If it is determined that you have directly or indirectly obtained access to more than one free trial, we may charge you the relevant fees applicable to the Service provided during your additional trial(s). 

1. At the end of a trial period, we will disable your access to the Service (and will remove your User Material from the Service within 30 days), unless you become a registered user of the Service on a paid basis.  The Fergus Site, App and Service are supplied on an “as is – where is” basis during any trial period, and as such any warranties given by us in these terms of service do not apply. 

1. Third Party Websites, Content, Products and Services 

1. The Fergus Site provides links to websites and access to content, products and services of third parties, including other users, advertisers, affiliates and sponsors of the Fergus Site and App. Fergus is not responsible for third party content provided on or through the Fergus Site or the App and you bear all risks associated with the access and use of such websites and third party content, products and services. 

1. Term and Termination  

1. The term of your Agreement with us commences on the first day you access the Service and continues until either Fergus or you terminate this Agreement in accordance with these terms of service. 

1. We may terminate this Agreement (and the plan you have subscribed for) at any time by providing you with written notice (by email).  

1. You may terminate this Agreement (and cancel the plan you have subscribed for) at any time by providing us with written notice (by email). You will still need to pay all applicable Fees up to and including the  end of the month in which you terminate this Agreement. 

1. We may terminate this Agreement (and cancel the plan you have subscribed for) or limit your access to or use of the App, Service or any Content immediately, by notice to you, if: 

1. you (or any of your Users) breach any term of this Agreement; 

1. you fail to pay any Fees by the due date for payment; or 

1. you become insolvent, make any arrangement with your creditors, go into liquidation, have a receiver appointed over any of your assets, or are subject to any similar insolvency event in any jurisdiction. 

1. You may terminate this Agreement (and cancel the plan you have subscribed for), by notice in writing to us, immediately if: 

1. we fail to comply with any material term of this Agreement and do not remedy the breach within 20 days of receiving notice of the breach from you; or 

1. we become insolvent, make any arrangement with our creditors, go into liquidation, have a receiver appointed over any of our assets, or are subject to any similar insolvency event in any jurisdiction. 

1. If we terminate under clause 11.2 or you terminate under clause 11.5, we may provide you with a refund of any Fees paid you in advance that relate to the period after termination. Otherwise, no refunds of Fees will be available on termination of this Agreement. 

1. We may also suspend or limit your access to the Fergus Site or the App at any time for such time as is necessary to carry out maintenance. 

1. Upon termination of this Agreement between us (for any reason), you must (and must ensure your Users) immediately cease to access or use the Service and Fergus may remove all of your User Material from the Service.  

1. Disclaimers 

1. We will use our commercially reasonable efforts to ensure that the Service is accessible by you and your Users in accordance with this Agreement. 

1. In the event of any breach of clause 12.1 or any other term, condition or warranty that Fergus is unable to exclude by law, your sole remedy will be (at our option) the resupply of the non-conforming Service within a commercially reasonable time or a refund of the Fees paid by you for such non-conforming Service. 

1. Other than as expressly provided in clause 12.1 above, the Fergus Site, the App, the Service and all Content provided on or through the Service, are provided on an “as is” and “as available” basis. Fergus expressly disclaims all warranties or terms of any kind, whether express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose and non-infringement with respect to all Content provided on or through the Fergus Site. Fergus makes no warranty that the Service will meet your requirements or will be available on an uninterrupted error-free basis. As the Service uses artificial intelligence to assist in preparing the Content, we do not provide any warranties in respect of the accuracy, completeness, timeliness or supply of any Content. 

1. Despite any other provision to the contrary in this Agreement, we will not under any circumstances be liable to you, any User or any third party in respect of the accuracy of any Content or your use or reliance on any Content created by or derived from the Service, including any decisions you make in respect of your business or employees arising from the use of the Service or Content, which remains your sole responsibility. In particular, you acknowledge that Fergus uses artificial intelligence systems to assist in providing the Service and the Content that you receive from the Service. Given the nature of artificial intelligence and machine learning systems and reliance on third parties to input accurate and complete information into the Service, use of the Service may result in incorrect or incomplete data being included in the Service or the Content. 

1. You acknowledge and agree that you shall comply (in all respects) with any restrictions of use in any agreement entered into in respect of any third party software (including any artificial intelligence software) used in connection with (or incorporated into) the Service, as notified by us. 

1. Fergus reserves the right to monitor your use of the Fergus Site, App, Service and Content at any time without notice. 

1. Limitation of Liability 

1. To the extent we do become liable to you in connection with this Agreement and/or the Service, then all claims by you against us are, to the extent permitted by law, limited in aggregate to the Fees paid by you in the first year of the term of this Agreement, unless such liability has arisen as a sole and direct result of our  fraud. 

1. You will indemnify us for any loss, damage or costs incurred by us from any claim (including a claim by any of our suppliers, partners or licensors), where the relevant claim arises from: (i) your (or any of your Users) unauthorised use or disclosure of the Service or Content; (ii) any inaccuracy in, or incompleteness of, any User Materials; or (iii) any breach by you (or any of your Users) of clause 6.1 or the warranties in clause 8.3. 

1. Except in respect of any liability under the indemnity in clause 13.2, under no circumstances will either you or we (or any of our third party licensors or suppliers), or any of their directors, officers or employees, be liable, whether in contract, equity, tort (including negligence, breach of statutory duty or otherwise) or any other theory of liability for any direct or indirect loss of profits, loss of revenue, loss of User Materials, loss of anticipated savings; or for any indirect, special or consequential loss whatsoever. 

1. Privacy 

1. We collect and process the Personal Information of your Users and customer when you (or your Users, as applicable) access or use the Website, the App and/or the Service. We may also collect certain information about the performance of the Website, App and Service and your (and your Users’) use of the Website, App, Services and/or Content.  

1. You must ensure that your Users are aware of and read the Privacy Policy. 

1. Our access to and use of all such Personal Information is governed by our Privacy Policy. By agreeing to this Agreement, you agree to the way we handle your (and your Users’ and customers) personal information, as specified in (and anticipated by) these terms of use and our Privacy Policy.  

1. You must comply with all Data Privacy Laws in connection with your collection, use and disclosure of the personal information of any person. You will not (and will ensure your Users do not) use the Service: (i) to collect personal information about third parties other than as anticipated by the Service; or (ii) in a way that violates (or may be considered inconsistent with) the privacy of any person. This includes, if you are located (or a company registered) in the United Kingdom, complying with the data processing addendum (in the form available at [link), which shall form part of your Agreement with us) 

1. You warrant that you have obtained all necessary consents and approvals from all individuals (including your Users) to ensure that we are able to lawfully process all personal information of such persons in the manner specified in (and anticipated by) this Agreement and the Service. 

1. You will, upon becoming aware of a Security incident, or any other breach, or suspected breach, of your security safeguards, notify us without undue delay and shall provide timely information relating to the Security Incident as it becomes known or as is reasonably requested by us. 

1. Intellectual Property Rights 

1. You acknowledge that Fergus owns all Intellectual Property Rights in the Fergus Site, the App, the Service, the Software and the Content, and nothing in this Agreement constitutes a transfer of any such Intellectual Property Rights to you. 

1. You must not directly or indirectly do anything that would or might invalidate or put in dispute Fergus' Intellectual Property Rights in the Fergus Site, the App, the Service, the Software and the Content (including any of the Fergus registered or unregistered trademarks). 

1. You must comply with Fergus' reasonable usage guidelines and directions with respect to the Fergus Site, the App, the Service, the Software and the Content as notified to you from time to time. 

1. If, you or any of your Users send us any comment, feedback, submission, creative idea, suggestion, proposal, plan, or other material, by any means (Comment), you agree that we may use any Comment for any purpose, without restriction, and shall be under no obligation to maintain any Comment in confidence or respond to any Comment. 

1. Confidentiality 

1. A party must not, without the prior written consent of the other, use or disclose the other party’s Confidential Information unless expressly permitted by this Agreement or required to do so by law or any regulatory authority. 

1. A party may: 

1. use the Confidential Information of the other party solely for the purposes of complying with its obligations and exercising its rights under this Agreement; and 

1. disclose the Confidential Information of the other party to its personnel or advisers to the extent necessary for them to know the information for purposes related to this Agreement, but only if reasonable steps are taken to ensure that the confidentiality of the information is retained. 

1. Apple and Google terms 

1. For the purposes of this clause 17.1: 

Apple means Apple Inc and other companies within its group. 

Apple Store means the store/platform operated by Apple making the App available to iOS devices.  

Google means Alphabet Inc and other companies within its group. 

Google Play Store means the store/platform operated by Google making the App available to Android devices. 

1. You acknowledge and agree that: 

1. where the App is downloaded from the Apple Store: 

1. your rights to install and use the App are subject to these Terms of Use and the relevant terms in the Apple Store terms of service; 

1. Apple is not responsible for the App in any way, including for any maintenance or support of the App; 

1. to the maximum extent permitted by law, Apple has no warranty obligations with respect to the App; 

1. we (and not Apple) are responsible for addressing any claims by you or a third party in connection with the App (including any claims by a third party that the App breaches that persons intellectual property rights); and 

1. though this agreement is entered into between us and you, Apple, as a third party beneficiary under this agreement, will have the right to enforce these Terms of Use against you. 

1. Where the App is downloaded from the Google Play Store: 

1. your rights to install and use the App are subject to these Terms of Use and the relevant terms in the Google Play Store terms of service; 

1. Google is not responsible for the App in any way, including any maintenance or support of the App; and 

1. we (and not Google) are responsible for addressing any claims by you or a third party in connection with the App (including any claims by a third party that the App breaches that persons intellectual property rights). 

1. For the benefit of each of us, Apple and Google, you represent and warrant that you are not, and will not, be located in any country that is the subject of a US Government embargo or that has been designated by the US Government as a “terrorist supporting” country and that you are not listed on any US Government list of prohibited or restricted parties. 

1. Fergus Pay 

18.1 We have arranged for Stripe to collect any funds due to you from the selling of your goods and services via Fergus Pay. By using Fergus Pay and accepting the funds collected on your behalf by Stripe, you agree to the terms of the Fergus Pay Agreement, a copy of which can be obtained here. 

1. General 

19.1 The use of the Fergus Site, App and Service and this Agreement shall be governed by the laws of the country in which the Fergus entity that you are contracting with is registered and you agree to submit to the exclusive jurisdiction of the courts of that country in respect of any disputes or claims arising out of or in connection with this agreement or the Service.  

19.2 Neither party shall be liable for any delay or failure to fulfil its obligations under this Agreement arising directly or indirectly from any circumstance beyond the reasonable control of the affected party (including, without limitation, acts of God, flood, earthquake, storm, fire, epidemic, pandemic, war, embargoes, riot or civil disturbance), provided that the affected party shall notify the other party as soon as practicable of the events and use its reasonable endeavours to continue to perform its obligations and mitigate the effects of the event. 

19.3 You must not assign, sub-licence or otherwise deal in any similar way with any of your rights under this Agreement without the prior written consent of Fergus. 

19.4 Nothing contained in this Agreement creates any relationship of partnership or agency between the parties. 

19.5 If a provision of this Agreement is invalid or unenforceable it is to be read down or severed to the extent necessary, without affecting the validity or enforceability of the remaining provisions. 

1. Contacting Fergus 

20.1 You can contact Fergus via email at support@fergus.com