FERGUS SOFTWARE TERMS OF SERVICE
This website is owned by Fergus Software Limited. These terms and conditions govern your access to and use of all Fergus Software Limited owned and operated websites, software programs, and any mobile applications made available by Fergus Software Limited for download.
By accessing this website or by downloading and/or using a Fergus Software Limited program and/or mobile app you agree to be bound by these terms and conditions. If you do not agree to these terms and conditions then you should not use this website or programs or download and/or use our mobile applications.
- 1.2 “Content” has the meaning given to that term in section 4.
- 1.3 “Fergus”, “we”, “our” or “us” means Fergus Software Limited (NZBN 9429031078085) and its subsidiaries and holding companies for the time being (including but not limited to Fergus Software Pty Limited (ACN 605 226 417)).
- 1.4 “Fergus Software” or “Software” means all and any software as developed by Fergus, including but not limited to the Site, its customer retention management and work management software, and its mobile applications.
- 1.5 “Fees” means all fees payable to Fergus including but not limited to subscription fees, training fees, licensing fees, or service based fees.
- 1.6 “Users”, “you” or “your” means any person who makes use of any Fergus Software or the Fergus Site.
- 1.7 “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 excluding:
- 1.7.1 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
- 1.7.2 information developed independently by a party.
- 1.8 “Documentation” means any and all proprietary documentation made available to you by Fergus for use with the Software, including any documentation available online.
- 1.9 “Force Majeure Event” means any event beyond the control of the relevant party.
- 1.10 “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.
- 1.11 “Moral Rights” has the meaning given under the Copyright Act 1994 and includes any similar rights existing in other countries.
- 1.12 “Site” or “Fergus Site” means the Fergus website, fergus.com, or any other such website that may supersede it in the future.
- Unless the context requires otherwise –
- a) a reference to a person includes a corporation or any other legal entity;
- b) the singular includes the plural and vice versa;
- c) headings are for convenience and do not form part of this Agreement or otherwise affect the interpretation of this Agreement;
- d) the term “includes” (or any similar term) means “includes without limitation”; and
- e) a reference to any statute includes references to any subsequently amended, consolidated or re-enacted version of that statute and all delegated legislation or other statutory instruments made under it.
- Unless the context requires otherwise –
2. Acknowledge and Acceptance of Terms of Service
If you do not agree to this Agreement then you should not access or use the Fergus Site or the Software.
Fergus reserves the right to amend this Agreement at any time. We will endeavour to give you reasonable notice of material changes to this Agreement before they become effective, unless immediate changes are required for reasons beyond our control. When we notify you, we will do it by email, or by posting a notice through the Software or on the Fergus Site. If a change to this Agreement is not material, we may not notify you. Accordingly, we recommend that you review the terms of this Agreement periodically and before giving or confirming to Fergus any personal information.
3. Account Fees
It is the User’s responsibility to make payments for Fees in a timely manner. All Fees are invoiced on the first day of the month, and payment must be made within 14 days of receiving each invoice. Fees are subject to change, provided that Users will be given advance notice of any impending Fee changes in accordance with this Agreement. Fergus recommends setting up a recurring payment method.
If you do not pay the Fees within 14 days of being invoiced, we may immediately suspend your access to the Software. Suspended accounts may be reactivated upon payment of all outstanding Fees on the account.
4. Ownership of Content on the Fergus Site
The material displayed on the Fergus Site, 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 on the Fergus Site (“Content”) are protected by intellectual property laws unless expressly indicated otherwise in writing. All Intellectual Property Rights, title and interest in and to the Content are owned, licensed or controlled by Fergus or the party credited.
5. Access To and Use Of Content of the Fergus Software
You agree not to access or use the Software in any manner that could damage, disable, overburden, or impair the Software or any Fergus accounts, programs, computer systems or networks. You agree not to attempt to gain unauthorised access to any parts of the Software or any Fergus accounts, programs, computer systems or networks. You agree not to interfere or attempt to interfere with the proper working of the Software or any Fergus accounts, programs, computer systems or networks. You agree not to use any robot, spider, scraper or other automated means to access the Software or any Fergus accounts, programs computer systems or networks without express written permission from Fergus.
It is prohibited to link directly to individual resources on Fergus servers without prior written consent. You agree not to copy, distribute, modify or make derivative works of the Software or any Content available through the Site (including by linking or framing any Content to a third party website) without Fergus’ prior written consent. 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 Site.
Access to and use of password protected or secure areas of the Software is restricted to authorised Users only. You agree not to share your password(s), account information, or access to the Software. You are responsible for maintaining the confidentiality of password(s) and account information, and you are responsible for all activities that occur under your password(s) or account(s) or as a result of your access to Software. You agree to notify Fergus immediately of any unauthorized use of your password(s) or account(s).
This Agreement does not grant you a licence under any patent, trademark or copyright of Fergus or any third party. You may only access and use the Software within the limits set out in this Agreement.
6. Third Party Websites, Content, Products and Services
The Site provides links to websites and access to content, products and services of third parties, including other Users, advertisers, affiliates and sponsors of the Site. Fergus is not responsible for third party content provided on or through the Site and you bear all risks associated with the access and use of such websites and third party content, products and services.
7. No Unlawful or Prohibited Use
You agree not to:
- a) use the Fergus Software or Content provided on or through the Site or Software for any purpose that is unlawful or fraudulent or otherwise prohibited by this Agreement;
- b) share anything that may be offensive or infringes the rights of any person;
- c) modify, copy, adapt, reproduce, disassemble, decompile, reverse engineer or extract the source code of any part of the Software; or
- d) resell, lease, or sublicense the Software or Content in any way not expressly permitted by us.
8. Termination of Use
Your access to the Software continues for the period covered by the Fees paid or payable. At the end of each billing period, this Agreement automatically continues for a further period of the same duration as the previous one, provided you continue to pay the Fees. You may choose to terminate this Agreement at any time by providing us with one month’s written notice. You will still need to pay all applicable Fees up to and including the day of termination.
Fergus may, in its sole discretion, at any time, discontinue providing or limit access to certain features of the Software, or any areas of the Software or Content provided on or through the Site. Where this occurs, we will endeavour to provide you with reasonable notice in accordance with this Agreement. You agree that Fergus may, in its sole discretion, at any time, terminate this Agreement or limit your access to or use of the Software or any Content by providing you with one month’s written notice. Fergus may also terminate this Agreement or limit your access to or use of the Software or any Content immediately if:
- a) you breach any term of this Agreement and do not remedy the breach within 14 days after receiving notice of the breach;
- b) you breach any term of this Agreement and the breach cannot be remedied;
- c) you fail to pay any Fees; or
- d) 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 agree that Fergus shall not be liable to you or any third-party for any consequence arising from the termination or limitation of your access to or use of the Software or any Content in accordance with this Agreement.
Fergus warrants the Fergus Software and Content will comply in all material respects in accordance with [insert reference].
Other than as expressly provided above, the Fergus Software, and all Content provided on or through the Software, 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 the Software and all Content provided on or through the Site.
Fergus makes no warranty that: the Fergus Software or Content will meet your requirements; the Software will be available on an uninterrupted error-free basis; the quality of any purchases or transactions made through the Software will meet your expectations.
Any content accessed, downloaded or otherwise obtained on or through the use of the Fergus Software, and any Content accessed, downloaded or otherwise obtained on or through the Site, is used at your own discretion and risk. Fergus shall have no responsibility for any damage to your computer system or loss of data that results from the download or use of the Software, the Site, or any Content, unless such damage results solely and directly from a material breach of this Agreement by Fergus or the negligence of Fergus.
Fergus reserves the right to monitor your use of the Fergus Software and Content provided on or through the Site at any time without notice.
10. Limitation of Liability
To the full extent permitted by law, Fergus excludes all liability in respect of any direct, indirect, incidental, special or consequential damages, or damages for loss of profits, revenue, data or use, incurred by you or any third party, whether in action in contract or tort, arising from your access to, or use of, the Fergus Software or any Content provided on or through the Site, except to the extent such liability arises solely and directly from a material breach of this Agreement by Fergus or the negligence of Fergus.
Fergus’ total aggregate liability for all claims relating to this Agreement is limited to the Fees payable by you under this Agreement.
Either party’s liability for any claim relating to this Agreement will be reduced to the extent to which the other party’s negligence or material breach of this Agreement contributed to the damage arising from the claim.
This Agreement is to be read subject to any legislation which prohibits or restricts the exclusion, restriction or modification of any implied warranties, conditions, guarantees or obligations. If such legislation applies, to the extent possible, Fergus limits its liability in respect of any claim to, at Fergus’ option -
- a) the supply of the relevant services again; or
- b) the payment of the cost of having the relevant services supplied again.
11. Intellectual Property Rights
Nothing in this Agreement constitutes a transfer of any Intellectual Property Rights in the Software, the Site, or any of the Content, to you.
You acknowledge that Fergus owns all Intellectual Property Rights in the Software.
You must not directly or indirectly do anything that would or might invalidate or put in dispute Fergus’ Intellectual Property Rights in the Software, the Site, or any of 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 Software, the Site and the Content as notified to you from time to time.
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 –
a) use the Confidential Information of the other party solely for the purposes of complying with its obligations and exercising its rights under this Agreement;
b) disclose the Confidential Information 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;
c) each party must implement and maintain effective security measures to prevent unauthorised use and disclosure of the other party’s Confidential Information whilst it is in the receiving party’s possession or control; and
d) each party must return, or at the other party’s option destroy, all Confidential Information of the disclosing party in the receiving party’s possession or control, on the earlier of Fergus’ request or on termination of this Agreement for any reason.
13. Governing Law and Jurisdiction
The use of the Fergus Software and this Agreement shall be governed by the laws of New Zealand and Users submit to the exclusive jurisdiction of the courts of New Zealand.
14. Media Content Ownership
Between us and you, you own all of the content and information you add to your Fergus account. In addition:
For content that is covered by your Intellectual Property Rights, such as but not limited to documents, photos and videos (IP Content), you specifically grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use, copy, transmit, store, analyse, and back up any IP Content, and any other information that you upload, add or include on your Fergus account, to: enable you to use the Software; allow us to improve, develop and protect the Software; communicate with you about your Fergus account; and send you information that may be of interest to you based on your marketing preferences. This license ends when you delete your IP Content or close your account with Fergus.
When you delete IP Content, you understand that removed content may persist in backup copies for a reasonable period of time (but will not be available to others).
15. Payment Terms
Advertised prices are in New Zealand dollars excluding GST for Users residing in New Zealand, unless otherwise noted. For Users residing in Australia, advertised prices are in Australian dollars excluding any applicable taxes, unless otherwise noted. For Users not residing within New Zealand or Australia, the advertised prices are in United States dollars excluding any applicable taxes, unless otherwise noted.
16. Charging and Subscriptions
Unless otherwise stated in your billing plan, Fergus charges the Fees on a per User basis with a package pricing base. We reserve the right to cancel the continued availability of any subscription package, in part or whole at any time, in accordance with this Agreement.
The Fees will be automatically charged to the payment method you provide on a monthly basis via a secure credit card payment system. The name that will appear on your statement will be Fergus Software Ltd. The monthly payments will be based on the usage of the previous month as per the billing plan.
17. Refunds and Returns
Fergus charges per active User, and it is solely up to the account holder to maintain their own User levels and types.
Refunds may be given at the discretion of Fergus. Please notify us in writing to email@example.com for accidental additional Users. Any credit purchased in advance will be applied to your Fees and is non-refundable and non-transferable.
Fergus may provide an export of your data on request.
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.
Nothing contained in this Agreement creates any relationship of partnership or agency between the parties.
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.
Each party must at its own expense do everything reasonably necessary to give full effect to this Agreement and the events contemplated by it.
A party will not be responsible for a failure to comply with its obligations under this Agreement to the extent that failure is caused by a Force Majeure Event, provided that the party keeps the other closely informed in such circumstances and uses reasonable endeavours to rectify the situation.
Without limiting any other right to terminate under this Agreement, if a Force Majeure Event affects a party’s performance under this Agreement for more than thirty (30) consecutive days, the other party may immediately terminate this Agreement by written notice.
You agree to Fergus processing your data in order to provide its service to you.
19. Fergus Pay
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.
You can contact Fergus via email at firstname.lastname@example.org
or via phone or post:
Australia: +61 3 9873 1079 Level 5, 134 William St Woolloomooloo NSW 2011
New Zealand: +64 9 972 9942 65 New North Road Eden Terrace Auckland 1021
United Kingdom: +44 161 676 1866 First Floor, Swan Buildings, 20 Swan St Manchester M4 5JW