Fooman: End User Agreement
1.1 You must accept this Agreement before accessing and using the Service or the Software.
1.2 By accessing the Service or the Software, you consent to be bound by the terms and conditions of, and are deemed to be a party to, this Agreement. If you do not agree with all of the terms and conditions of this Agreement, do not access the Service or the Software.
1.3 This Agreement is entered into by you as a user of the Service and/or Software. You confirm that you have the authority to act on behalf of any entity for whom you are using the Service and/or Software.
1.4 From time to time we may need to make changes to this Agreement. We will notify you of any changes to this Agreement by posting them on the Website and you agree by continuing to access or use the Service and/or Software to be bound by the updated terms and conditions.
2. Definitions and interpretation
2.1 In this Agreement unless the context otherwise requires:
Authorised User means any of the personnel of the Subscriber’s organisation that the Subscriber has authorised to access and use the Service and/or the Software on its behalf and, in the case of a Developer, includes the Developer’s merchant customer and the personnel of that customer’s organisation authorised to access and use the Service and/or the Software on the customer’s behalf.
Confidential information means all written and oral information provided by either party to the other (or an Authorised User) or to which the other party (including in the case of the Subscriber, its Authorised Users) gain access. It is acknowledged and agreed that all information regarding the Service and the Software is Confidential Information of Fooman.
Developer means any developer that subscribes for the Service and/or the Software under this Agreement, for or on behalf of a merchant customer.
Effective Date has the meaning given to it in clause 3.1.
Fees means the fees, costs and/or expenses payable by you to Fooman (from the Effective Date) in connection with the Service and the Software, as specified on the Website or as otherwise notified by Fooman from time to time throughout the term of this Agreement.
Subscriber Data means any and all data (including any text or images and personal information) relating to you and your Authorised Users that is entered into the Website, the Software or the Service directly by you, any Authorised User or any Third Party Partner or indirectly as a result of the application of any rules contained in the Software.
Service means the online Magento extension services or solutions made available by Fooman to you (including, as applicable, configuration services, and access to and use of the Support Services), as detailed on the Website (at https://fooman.com), but excludes any service or software provided by a Third Party Partner.
Software means the Magento extension software that is owned (or licensed) by Fooman and made available to you to access and use in connection with the Services by downloading from the Website.
Subscriber means the main person who registers to access and use the Service, and includes the entity for whom that person enters into this Agreement on behalf of.
Support Services means the standard access and support services provided by (or on behalf of) us in connection with the Service.
User Documentation means any printed or electronic documents supplied (or made available on the Website) by Fooman relating to the Service and the Software, as updated by Fooman from time to time.
Third Party Partner means any third party who provides software or services that integrate with, or are used by you (or your Authorised Users) in connection with, the Service, including Xero.
We, us, our or Fooman means Fooman Limited.
Website means https://fooman.com or such other site as notified by us from time to time.
you means either the Subscriber and as the context permits, includes the Authorised Users, and your has a corresponding meaning
3.1 This Agreement shall be in effect from the first time you access the Service (Effective Date), and shall remain in effect until terminated in accordance with this Agreement.
4.1 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 to access and use the Service and the Software during the Term solely:
(a) if you are a Developer, as necessary to enable your merchant customer to access and use the Service and Software for its internal business purposes through the domain name that you notify to us at the commencement of this Agreement (and any associated Developer domains used by you to achieve this purpose); and
(b) if you are not a Developer, for your internal business purposes and only through the domain name that you notify to us at the commencement of this Agreement (and any associated Developer domains used by you to achieve this purpose).
You will not sell or otherwise commercially exploit the Service or the Software.
4.2 We will provide the Support Services and the cost of such standard Support Services shall be included in the Fees. However, if you wish to request additional support from Fooman at any time throughout the Term and Fooman (in its sole discretion) agrees to provide such additional services, you agree to pay us the cost of providing such services (on a time and materials basis, as notified by us).
4.3 You warrant that all information supplied by you and your Authorised Users to Fooman for the purposes of registration and accessing and using the Service is true, correct and up to date.
4.4 Terminal equipment, communications links and systems compatibility (and all costs associated with such items) are your (or your Authorised Users, as applicable) sole responsibility. We accept no responsibility for any unavailability of, or defects in, the Website, the Software or the Service to the extent such unavailability or defects arise out of or in connection with terminal equipment, communications links or systems compatibility, or your (or your Authorised Users) failure to make payment of the costs for such items.
5. Authorised Users
5.1 You are responsible for keeping all access information, including email addresses and log-on credentials, secret and secure. Without limiting the foregoing, you agree:
(a) not to disclose and to ensure that Authorised Users do not disclose their user name or log-on credentials to any other person;
(b) to ensure that none of your Authorised Users (or any other person under your control) attempts to gain unauthorised access to the Service or Software, including but without limitation, through hacking or password mining;
(c) to inform us immediately of any known or suspected unauthorised access to and use of the Service or the Software; and
(d) you have sole responsibility for setting the administration privileges of each Authorised User and for monitoring whether those privileges are being adhered to.
5.2 You must notify each Authorised 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 Authorised User to comply with the terms of this Agreement (as if it were a breach by you of this Agreement).
6. Restrictions on use
6.1 In respect of your (and your Authorised Users) access to and use of the Service and the Software you will comply (and will ensure your Authorised Users comply) with, all User Documentation, applicable laws, rules and regulations, together with all instructions, guidelines, procedures and policies notified by Fooman from time to time.
6.2 You must not (and must ensure your Authorised Users do not):
(a) use the Service in a manner that may damage, disable, overburden or impair either the Service or the networks connected to the Service;
(b) translate, reverse engineer, decompile, disassemble or create derivative works of the Service or the Software (or any part of them) or otherwise attempt to: (i) defeat, avoid, by-pass, remove, deactivate or otherwise circumvent any software protection mechanisms in the Service or Software (or any part of them), including, without limitation, any such mechanism used to restrict or control the functionality of the Service or Software; or (ii) derive the source code or the underlying ideas, algorithms, structure or organisation form of the Service or Software (or any part of them); or
(c) distribute through the Service or Software any attachments, documents or files that: (i) infringe on any copyright, patent, trade secret, trademark or other third party proprietary rights; (ii) violate any law, statute, ordinance or regulation; (iii) are defamatory, libellous or obscene; or (iv) contain viruses, trojan horses, worms, time bombs, or similar harmful programming routines.
6.3 We may at our discretion use technology (including digital rights management protocols) or other means to protect the Service and the Software, protect its customers, or to prevent you from breaching this Agreement.
6.4 You may not access the Service or Software for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
7. Ownership and Intellectual Property Rights
7.1 Subject to clause 8.3, title and associated intellectual property rights in the Subscriber Data remain your (or, as applicable, the relevant Authorised User’s or third party’s) property.
7.2 Subject only to your rights in the Subscriber Data (as specified in clause 7.1):
(a) the Service, Website and Software are protected by copyright and other interests and are proprietary and confidential to us (or our third party licensors and/or suppliers); and
(b) all rights, title and interest in and to the Service, Website and Software, including associated intellectual property rights, are and will remain vested in us or our third party licensors or suppliers (as applicable).
7.3 Beyond the rights expressly granted in this Agreement, nothing contained in this Agreement confers on you any right or interest in, or licence or permit to use, any of the intellectual property rights in the Service, Website or Software.
7.4 You acknowledge and agree that:
(a) no obligation, warranty, undertaking or promise made by us in this Agreement shall apply in respect of any third party software or service accessed and used by you (or by us for the purposes of fulfilling our obligations under this Agreement); and
(b) you shall comply (in all respects) with any restrictions of use in any agreement entered into in respect of any third party software or service used in connection with (or incorporated into) the Service.
7.5 You will not remove any trade mark or copyright notice from any tangible item obtained via the Service or Software.
8. Subscriber Data
8.1 You acknowledge that we are not responsible for, and have no liability in respect of, the Subscriber Data, loss or corruption of the Subscriber Data, or how you or any of your Authorised Users use the Subscriber Data or the Service or Software. You are solely responsible for the Subscriber Data and we reserve the right to remove from our servers any content that may expose us to potential liability.
8.2 You grant a non-exclusive licence to us in respect of all Subscriber Data to the extent necessary to provide the Service, perform our obligations and exercise our rights under this Agreement.
8.3 You grant to us a non-exclusive royalty free world-wide and irrevocable license permitting us to copy, anonymize, aggregate, process and display Subscriber Data to derive anonymous statistical and usage data, and data about the functionality of the Service, provided such data cannot be used to identify you or your Authorised Users (Anonymous Data), for the purposes of combining or incorporating such Anonymous Data with or into other similar data and information available, derived or obtained from other clients, licensees, users, or otherwise (when so combined or incorporated, referred to as Aggregate Data), so as to permit us to provide services including the copying, publication, distribution, display licensing or sale of Aggregate Data and related or similar other statistics or data to third parties (and to you should you elect to subscribe for same) pursuant to a separate licensing or services arrangement or agreement. We will be the owners of all right, title and interest in and to the Aggregate Data.
8.4 You warrant and represent that:
(a) you have the right to grant the licence in clause 8.3 in respect of all Subscriber Data, and inputting the Subscriber Data in the manner anticipated by the Agreement and the Service; and
(b) use of the Subscriber Data by us, you or any Authorised User in connection with the Services and Software will not breach any laws or the intellectual property rights of any person.
8.5 You are solely responsible for maintaining a copy of all Subscriber Data. We have in place for our own purposes policies and procedures to prevent data loss (and recovery) but does not make any guarantee around loss of any Subscriber Data and, as such, we expressly exclude any liability for any loss or corruption of any Subscriber Data.
8.6 You acknowledge that the Service and the Software depends on the entry by you and your Authorised Users and Third Party Partner of accurate and up to date Subscriber Data. You undertake to ensure that all Subscriber Data inputted into the Service or Software is accurate and up to date and without material omission.
9. Third party websites and material
9.1 The Website and the Service may contain links to other third party services, websites or resources over which Fooman does not have control, including any Third Party Partner services and/or websites (External Resources). Such links do not constitute an endorsement by Fooman of those External Resources. You acknowledge that Fooman is providing these links to you as a convenience, and you further agree that Fooman is not responsible for the availability or content of any External Resources. Your (and your Authorised Users’) use of the External Resources is entirely at your own risk and is subject to the terms and conditions of use and privacy policies located on the External Resources.
10.1 In consideration of your (and your Authorised Users’) use of the Service and Software, you will pay us the Fees (together with any other costs and expenses payable by you in respect of the Service and/or Software).
10.2 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, excluding only taxes based solely on Fooman’s income. If Fooman is required to pay or collect any federal, state, local, or value-added tax on any fees charged under this Agreement, or any other Fooman’ net income, then such taxes and/or duties will be billed to and paid by you immediately upon receipt of Fooman’ invoice and supporting documentation for the taxes or duties charged.
10.3 We may increase the Fees on an annual basis and will provide you with no less than 30 days’ notice of the new Fees.
11. Payment of Fees
11.1 The Fees are payable in advance. Continuation of the Service and access to Software is strictly subject to payment by you of the Fees in accordance with this clause 11.
11.2 Fees shall be payable by you (without set-off or deduction, withholding or counterclaim).
11.3 If you default in payment of any amount payable under this Agreement, we may:
(a) suspend access to the Service and Software until such time as you have made payment in full of all amounts due and owing under this Agreement;
(b) 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
(c) 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.
12. Termination and suspension
12.1 Either party may terminate this Agreement on 30 days written notice to the other party.
12.2 We may immediately by notice in writing to you, terminate this Agreement (or, in our discretion, suspend your access to the Service and Software) where:
(a) you fail to comply with any material term of this Agreement;
(b) you fail to pay any applicable Fees or other amounts by the due date for payment and fail to remedy such failure within five days of such failure occurring;
(c) you (or any of your Authorised Users or personnel) breach, or attempt to breach, any of Fooman’s security protocols or systems on the Website, or access (or attempt to access) an account that does not belong to you;
(d) there is an appointment of any type of insolvency administrator in respect of your affairs;
(e) required by law; or
(f) we consider it necessary or desirable to do so to protect our interests or reputation or the interests of the Service, Software or any other person.
12.3 We may also suspend access to the Website, Services and Software at any time:
(a) for such time as is necessary to carry out maintenance determined by Fooman to be necessary or desirable;
(b) to reduce or prevent interference with the Website or the Service;
(c) if required to do so as a result of a direction by any Government, law enforcement or other authority.
12.4 You may by notice in writing to Fooman, terminate this Agreement where:
(a) we fail to comply with any material term of this Agreement; or
(b) there is an appointment of any type of insolvency administrator in respect of Fooman’s affairs.
12.5 Upon termination of this Agreement (for any reason):
(a) you must immediately cease (and ensure all Authorised Users’ cease) to access the Service and the Software;
(b) you acknowledge and agree that no Fees (paid in advance and which relate to the period following termination, if any) will be refunded to you;
(c) if requested by you, your Subscriber Data, other than Anonymous Data or Aggregate Data, shall be deleted from the Website, except where retention of certain data is required for legal compliance reasons. Otherwise, we shall endeavour to retain Subscriber Data on your account for you to access on an ongoing basis; and
(d) any termination will be without prejudice to any prior breaches by you (or any of your Authorised Users) of this Agreement.
13. Updates and new versions
13.1 We may provide updates to or new versions of the Software or Service (or any parts of them) and reserve the right to take down applicable servers hosting the Website, the Service and/or the Software to undertake such updates or install such new versions. You agree to comply with our instructions in relation to any update, new version or maintenance and we will not be held liable for any upgrade, update, maintenance or new version of the Software or Service (or any part of them).
14. Records and audit
14.1 You will maintain full, accurate and up to date records of all of your (and your Authorised Users’) access to and use of the Service and Software.
14.2 You will provide us with access to your records, personnel and Authorised Users and such other information as its reasonably requested by us to enable us to confirm your (and your Authorised Users’) compliance with this Agreement.
15.1 We will use our commercially reasonable efforts to ensure that the Service and Software is accessible by you and your Authorised Users in accordance with this Agreement.
15.2 In the event of any breach of clause 15.1 or any other term, condition or warranty that Fooman is unable to exclude by law, your sole remedy will be (at our option) the resupply of the non-conforming Service or Software (as applicable) within a commercially reasonable time or a refund of the Fees paid by you for such non-conforming Service or Software.
15.3 Fooman does not represent that the Service or any Software is error-free or will satisfy your requirements. Nor does Fooman provide any warranties in respect of the accuracy, completeness, timeliness or supply of information via the Website. The obligation of Fooman in clause 15.1 is in lieu of all other warranties in respect of the Website, the Service and the Software. To the maximum extent permitted under applicable law, all other warranties, condition and representations, whether express, implied or verbal, statutory or otherwise, and whether arising under this Agreement or otherwise, are excluded (including, without limitation, the implied warranties of merchantability, non-infringement and fitness for a particular purpose).
15.4 We use commercially available anti-virus software in the provision of the Service, but we cannot guarantee that
the Website, Service or Software will be free from viruses, trojan horses, worms, time bombs, or similar harmful programming routines.
15.5 You agree the Service and Software is acquired for the purposes of a business, and as such, the guarantees provided under the New Zealand Consumer Guarantees Act 1993 do not apply.
16. Liability and indemnity
16.1 To the extent we do become liable to you in connection with this Agreement, then all claims by you against us whether in contract, equity, tort (including negligence), breach of statutory duty or otherwise) or any other theory of liability are limited in aggregate to 50% of the Fees paid by you in the first year of the term of this Agreement.
16.2 Under no circumstances will we or our third party licensors, suppliers or resellers (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, liabilities or claims relating to your reliance on the output of the Service and/or Software; loss of data (including any Subscription Data), breach of security or privacy, loss of anticipating savings; or for any indirect, special or consequential loss whatsoever.
16.3 You will indemnify and hold us, our third party licensors, suppliers (and their directors, officers and employees), harmless from all claims, liabilities, damages, losses (including legal fees) and expenses, due to or arising out of your (or any of your customers’, personnel or Authorised Users’) use of the Services and/or Software, and/or any breach of any term of this Agreement by you or any of your Authorised Users.
17.1 This Agreement is personal to you and you will not license, assign, resell, share, pledge, rent or transfer any of your rights under this Agreement or any part of them without our prior written consent (which may be withheld in our absolute discretion). If you are not a natural person, any change of control in your corporate entity will be deemed an assignment.
17.2 We may assign this Agreement at any time by notice in writing to you.
18.1 We collect and process your personal information and personal information of your Authorised Users when you (or your Authorised Users, as applicable) access or use the Website, the Service and the Software. In order to provide you with the Service and Software (and improve on them), we may also collect certain information about the performance of the Website, the Service, the Software and your (and your Authorised Users’) use of the Website, the Service and the Software.
18.4 You must comply with all applicable privacy laws (including the NZ Privacy Act 2020 and, to the extent applicable, the European Union General Data Protection Regulation) in connection with your collection and use of any personal information of any person. You will not (and will ensure your Authorised Users do not) use the Website, the Services or the Software: (i) to collect personal information about third parties, including without limitation, e-mail addresses; or (ii) in a way that violates (or may be considered inconsistent with) the privacy, rights or civil liberties of any person (including in a way that prevents the exercise of them).
19.1 Unless otherwise consented in writing by one party to the other, each party will maintain the confidentiality of all Confidential Information of the other obtained pursuant to this Agreement. The provisions of clause 19.1 do not apply to any information which:
(a) is public knowledge other than breach of this clause 19;
(b) is received from a third party who is in lawful receipt of the information and is able to disclose it to the recipient without restriction;
(c) is required by law to be disclosed; or
(d) in the case of Fooman, is necessary for Fooman to disclose in order to provide the Service and/or the Software.
20. Force majeure
20.1 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:
(a) notify the other party as soon as practicable of the events; and
(b) use all reasonable endeavours to continue to perform its obligations and mitigate the effects of the event.
21.1 You will not commence any court or arbitration proceedings relating to a question, difference or dispute relating to this Agreement, the Service or the Software (Dispute) unless you have first complied with this section.
21.2 Where any Dispute arises, you (or your representative) and Fooman will negotiate in good faith in an attempt to resolve the Dispute amicably.
21.3 Where the Dispute cannot be resolved by way of good faith negotiations within 14 days (or such longer period agreed by you and us) of negotiations commencing, either you or we can elect to mediate any dispute in terms of the New Zealand Resolution Institute standard mediation agreement.
21.4 If the Dispute cannot be resolved by way of mediation then either party may initiate arbitration or litigation in New Zealand.
21.5 Nothing in this section will preclude a party from taking immediate steps to seek urgent injunctive relief before an appropriate court.
22.1 Any problems that occur whilst accessing the Website, the Service or Software (or any other correspondence with us) should be notified in writing to email@example.com at your earliest convenience.
22.2 Any notices to be provided by us to you pursuant to this Agreement shall be made by either posting such notice on the Website or emailing you at the email address you supplied to us for the purposes of opening your account on the Website.
22.3 This Agreement and the provision of the Service and Software provided hereunder will be governed by New Zealand law and you agree to submit to the exclusive jurisdiction of the New Zealand courts in respect of any disputes or claims arising out of or in connection with the Service. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
22.4 Nothing express or implied in this Agreement shall be construed as constituting either party as the partner, agent, employee, office or representative of, or as a joint venture with, the other party, and neither party will make any contrary representation to any other person.
22.5 If any of provision of this Agreement is determined to be illegal, invalid or otherwise unenforceable, then to the extent, it shall be severed and deleted from these terms and the remaining terms shall survive and continue to be binding and enforceable.
22.6 This Agreement constitutes the entire agreement between the parties with respect to the use of the Services and supersedes all prior or contemporaneous understandings regarding such subject matter.
23. Any provision that by its nature should survive the termination of this Agreement (or is necessary for the interpretation or enforcement of this Agreement) shall survive any termination.