FERGUS SOFTWARE TERMS OF SERVICE

1.0 Definitions

  • 1.1“Site” or “Fergus Site” means the Fergus website, gofergus.com, or any other such website that may supersede it in the future.
  • 1.2“Fergus” means Fergus Software Limited.
  • 1.3“Fergus Software” or “Software” means all and any software as developed by Fergus, including but not limited to the Site, the Customer Retention Management and the Work management software.
  • 1.4“Fees” means all fees payable to Fergus including but not limited to subscription fees, training fees, licensing fees, or service based fees.
  • 1.5“Users” means any person who makes use of any Fergus Software or the Fergus Site.
  • 1.6“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:
    • 1.6.1information that enters the public domain or is disclosed to a party by a third party, other than through a breach of this Agreement, and
    • 1.6.2information developed independently by a party.
  • 1.7“Documentation” means any and all proprietary documentation made available to you by Fergus for use with the Licensed Software, including any documentation available online.
  • 1.8“Force Majeure Event” means any event beyond the control of the relevant party.
  • 1.9“Intellectual Property Rights” means all intellectual property rights, including all copyright, patents, trade marks, 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.
  • 1.10“Moral Rights” has the meaning given under the Copyright Act 1994 and includes any similar rights existing in other countries.
    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.

2.0 Acknowledge and Acceptance of Terms of Service

Your access to, use of, linking to the Fergus Site, use of Software or use of content on the Site is confirmation that you have understood these general terms and conditions of access and use and constitutes your agreement to be bound by them.

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.

Fergus reserves the right to amend the Terms at any time and users are deemed to be aware of and bound by the amendments to the Terms upon publication on the Fergus Site. Accordingly, we recommend that you review the Terms periodically and before giving or confirming to Fergus any personal information.

3.0 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 should be made within 30 days. Fees are subject to change, Users will be given advanced notice of any impending fee changes. Fergus recommends setting up via a recurring payment method.

Accounts that are not paid for within 30 days of being invoiced are subject to account suspension. Suspended accounts may be reactivated upon payment of all outstanding Fees on the account.

4.0 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 trade marks on the Fergus Site (“Content”) are protected by intellectual property laws unless expressly indicated otherwise. All rights, title and interest in and to the Content are owned, licensed or controlled by Fergus or the party credited.

5.0 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 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. Framing of any Content available through the Site without Fergus’ prior written consent is also prohibited. Fergus reserves the right to disable any unauthorised links or frames and disclaims any responsibility for the content available on any other web site reached by links to or from the NZX 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).

These Terms do not grant you a licence under any patent, trademark or copyright of Fergus or any third party.

6.0 Third Party Websites, Content, Products and Services

The Site provides links to Web sites and access to Content, products and services of third parties, including 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 Web sites and third party Content, products and services.

7.0 No Unlawful or Prohibited Use

You agree not to use the Fergus Software or Content provided on or through the Site or Software for any purpose that is unlawful or prohibited by these Terms of Service.

8.0 Termination of Use

Fergus may, in its sole discretion, at any time discontinue providing or limit access to the Software, any areas of the Software or Content provided on or through the Site. You agree that Fergus may, in its sole discretion, at any time, terminate or limit your access to or use of the Software or any Content. You agree that Fergus shall not be liable to you or any third-party for any termination or limitation of your access to or use of the Software or any Content.

9.0 Disclaimer

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 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 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 content.

Fergus reserves the right to make changes or updates to, and monitor the use of the Fergus Software and Content provided on or through the Site at any time without notice.

10.0 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 Software.

To the full extent permitted by law, Fergus excludes all representations, warranties or terms (whether express or implied) other than those expressly set out in this Agreement.

Fergus’ total aggregate liability for all claims relating to this Agreement is limited to the Fees payable 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 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)in the case of services -
    • (i)the supply of the services again; or
    • (ii)the payment of the cost of having the services supplied again.

11.0 Indemnity

You agree to indemnify and hold harmless Fergus, its officers, directors, employees and agents from and against any and all claims, liabilities, damages, losses or expenses, including reasonable legal fees and costs, due to or arising out of your use or misuse of the Software.

12.0 Intellectual Property Rights

Nothing in this Agreement constitutes a transfer of any Intellectual Property Rights.

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 the Fergus title in the Software or any of the Fergus registered or unregistered Trade Marks.

You must comply with the Fergus reasonable usage guidelines and directions with respect to the Licensed Software and the Trade Marks as notified to you from time to time.

13.0 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 –

  • (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; and
  • (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.
  • (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.

14.0 Governing Law and Jurisdiction

The use of the Fergus Software and these Terms shall be governed by the laws of New Zealand and users submit to the exclusive jurisdiction of the courts of New Zealand.

15.0 Media Content Ownership

You own all of the content and information you add to your Fergus account. In addition:
For content that is covered by 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 any IP Content that you upload, add or include on your account. This grant 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).

16.0 Payment Terms

Advertised prices are in New Zealand dollars excluding GST for companies residing in New Zealand, unless otherwise noted. For companies residing in Australia, advertised prices are in Australian dollars excluding any applicable taxes, unless otherwise noted. For companies not residing within New Zealand or Australia, the advertised prices are in United States dollars excluding any applicable taxes, unless otherwise noted.

17.0 Charging and Subscriptions

Fergus charges on a per user basis with a package pricing base. We reserve the right to cancel any subscription in part or whole at any time.

Paying subscribers to the Fergus Software will be charged monthly automatically 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. It is the cardholder’s responsibility to cancel the service.

Terms of Payment are the sole discretion of Fergus unless otherwise agreed to in writing by Fergus.

Payment must be made within 30 days of the invoice date. Invoice amounts are due and payable within the period noted on the invoice. If payment is not made within the payment period Fergus has the right to suspend service until full payment on all outstanding Fees has been made.

Fergus is not responsible for pricing, typographical or other errors in any offer by Fergus and we reserve the unilateral right to cancel any orders resulting from such errors.

Fergus is a New Zealand business and all transactions will be billed in New Zealand dollars unless otherwise stated.

18.0 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 toaccounts@gofergus.comfor accidental additional users.

All overcharges, mis-charges and or credit bought in advance will not be refunded but used as credits for future Fergus services. Any credit purchased is non-transferable.

All accounts will have consistent access via the Master User to their data even if service is suspended. Fergus will provide an export of your data on request.

19.0 General

You must not assign, sublicence or otherwise deal in any other way with any of its 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 with 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.

This Agreement (and any documents executed in connection with it) is the entire Agreement of the parties about its subject matter and supersedes all other representations, arrangements or agreement. Other than as expressly set out in this Agreement, no party has relied on any representation made by or on behalf of the other.

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.

20.0 Contacting Fergus

You can contact Fergus internationally via email atsupport@gofergus.com

or via phone:
New Zealand: +64 9 972 9942
37 Virginia Avenue East
Eden Terrace
Auckland 1024

or Australia: +61 476 114 962
Suite 4C&D, 329 Mitcham Road
Mitcham
Victoria 3132

or via post:
37 Virginia Avenue East
Eden Terrace
Auckland 1024
New Zealand