You must accept this End User Agreement before accessing and using the Services provided by us.
By accessing the Services, you agree to the terms of, and are deemed to be a party to this, End User Agreement. If you do not agree to the terms of this End User Agreement, do not access the Services.
You enter into this End User Agreement as end user of the Services. In doing so, you confirm that:
- where you are using the Services on behalf of an entity, that you have the authority to act on behalf of that entity; and/or
- an accountant, rural professional, financial adviser or some other service provider to the Service user cannot be the subscriber for the Services. If your accountant, rural professional or service provider has entered into this End User Agreement on your behalf, they simply do so as your agent only.
We reserve the right to make changes to this End User Agreement. We will notify you of any changes to this End User Agreement and by accessing or using the Services after that notification you agree to be bound by those changed terms.
Commonly used terms and interpretation
In this End User Agreement unless the context otherwise requires:
Aggregate Data has the meaning given to it in clause 6.8.
Anonymous Data has the meaning given to it in clause 6.7.
Authorised Users means:
- the personnel of your organisation that access and use the Services; and
- those third parties authorised by you,
in each instance, who access the Services on your behalf purely for your internal business needs.
Applications mean any Farm Focus Applications or Third Party Applications.
Beta Services means any of our services generally not publicly available to customers (and which may or may not subsequently become generally available).
Contracted Services means any services provided by us to assist you in implementing or using the Services, including any Data migration, Data restoration or support services (outside of the Support Terms).
Farm Focus Applications means any software applications owned by us that we make available to you to install whether through the Website or otherwise (and includes any releases or updates to them).
Data means any data inputted by you (or on your behalf) or for which you grant access to through the Services (including via Applications or Third Party Data Feeds) but for clarity, does not include any Subscription Data, Anonymous Data or Aggregate Data.
Demo Farm means any demo farm that you are provided with access to when you subscribe for the Services, and as further described in clause 8.6.
Documentation means any documentation or information we make available to you through the Website in and around access to and use of the Services (but does not include any marketing or promotional material).
Fair Use means a policy of fair usage which is not in our reasonable opinion excessive or out of the ordinary (when compared with the usage requirements of our other users).
Scheduled Maintenance means routine maintenance that is carried out at set intervals for the purpose of releasing or updating versions of the Software (or Applications) or undertaking work to the Website and/or Farm Focus Applications.
Services means the services offered in New Zealand delivered through the Website and/or Farm Focus Applications (including, as applicable, access to and use of the Software, Documentation, Subscription Data, Support Services and the Applications) and any Contracted Services.
Software means the financial management software (and any related software) that enables Service users to manage their cashflow, financial performance and forward planning and to collaborate on financial matters with their stakeholders and that is owned (or licensed) by us and made available through the Website and/or Farm Focus Applications.
Software Options means additional features of functions of the Software that are made available from time to time as optional extras for additional fees.
Subscription Data means all data created as a result of the provision of the Services to you, and as applicable, other subscribers of the Services.
Support Services means all access, support and maintenance services provided by us in connection with the Services as detailed in our Support Terms.
Support Terms means the terms relating to our Support Services contained on our Website (and as updated from time to time) which are at all times subject to Fair Use.
Third Party Applications means any software applications owned by a third party but made available to you for use in conjunction with the Services and installed through the Website or elsewhere (and includes any releases or updates to them).
Third Party Data Feeds means any of your data provided by a third party for use in the Services.
we means Farm Focus Limited and us and our have a corresponding meaning.
Website means http://www.farmfocus.co.nz or such other site as notified by us from time to time.
you means the subscriber for the Services and, as the context permits, includes the Authorised Users, and your has a corresponding meaning.
Where the word “including” (or an expression with a similar intention) is used in this Agreement, it will be deemed to be followed by the words “without limitation”.
Where we provide Contracted Services, we will do with the care, experience and skill as would reasonably be expected from a suitably skilled, trained and experienced person. All Contracted Services will be charged at the rates provided at the time of agreeing the Contracted Services, and as otherwise varied from time to time in accordance with the terms of this Agreement.
Subject to your compliance with this End User Agreement:
- you subscribe for the Services; and
- we grant you a non-exclusive, non-transferable and non-assignable right to access and use the Services for your own internal business purposes. Internal business purposes specifically excludes any commercialisation or exploitation of information technology products or services; and
Where applicable, you will grant us appropriate access and usage rights in respect of the relevant Third Party Applications and Third Party Data Feeds to enable us to properly provide the Services to you and comply with any agreement entered into between us and the relevant third party provider.
Ownership and Intellectual Property Rights
The Services (and each part of them) are protected by copyright and other interests and are proprietary and confidential to us (or our third party licensors or suppliers, as applicable). We (or our third party licensors or suppliers, as applicable) will retain all rights, title and interest in and to the Services (and each part of them), including all intellectual property rights.
Beyond the rights expressly granted to you, nothing contained in this End User Agreement grants you any right or interest in, or licence to use, any of the intellectual property rights in the Services (or any part of them) or any other intellectual property rights owned by us or any of our third party licensors or suppliers.
You acknowledge and agree that, despite any other term of this End User Agreement:
- no warranty or promise made by us in this End User Agreement applies in respect of any third party software (including Third Party Applications) and/or any Third Party Data Feeds accessed and used by you (or us for the purposes of fulfilling our obligations under this End User Agreement); and
- you will comply (in all respects) with any restrictions of use in this agreement or any other agreement entered into in respect of any third party software (including Third Party Applications) and/or any Third Party Data Feeds used in connection with (or incorporated into) the Services.
Restrictions on use
You may not transfer or share any of your rights under this End User Agreement in relation to the Services or any part of them.
Except as expressly permitted by relevant copyright laws, no copying, redistribution, displaying, performing, reproducing, licensing, transferring or publication of the Services (or any part of them) is permitted without our express written permission (which may be withheld at our sole discretion). Any copy made remains subject to the provisions of this End User Agreement, and all titles, trademarks, copyright notices and other legends shall be reproduced on such copy.
You may not modify, translate, reverse engineer, decompile, disassemble or create derivative works of the Services (or any part of them) or otherwise attempt to:
- circumvent any software protection mechanisms in the Services (or any part of them), including, any such mechanism (including the Website and/or Farm Focus Application) used to restrict or control the functionality of the Services (or any part of them); or
- derive the source code or the underlying ideas, algorithms, structure or organisation form of the Services (or any part of them).
We may modify, amend or cease to offer the Services (or any part of them) upon providing you with five (5) days’ prior written notice (or, in the case a Service incorporating Third Party Data Feeds, with immediate effect upon notice in writing to you).
In connection with the Services, you agree:
- you will comply with all applicable laws and regulations in relation to your access to and use of the Services, as well as all guidelines, procedures and policies notified by us from time to time.
- only the Authorised Users may access and use the Services;
- you will notify each Authorised User of the terms of this End User Agreement and ensure that each of them strictly comply with the terms;
- you will at all times, including after the term of this End User Agreement, keep the Services, and the content associated with them, together with all access details, including passwords and codes, confidential;
- you are solely responsible for the Data, the contents of your e-mail messages, attachments and stored files and we reserve the right to remove from our servers any content that may expose us to potential liability (but for the avoidance of doubt a failure by us to do so does not relieve you from responsibility);
- you may not distribute through the Services any attachments, documents or files that do or may:
- infringe any third party proprietary rights;
- violate any law or regulation; and
- contain viruses, trojan horses, worms, time bombs, or similar harmful programming routines;
- you may not use the Services in a manner that may damage, disable, overburden or impair either the Services or the networks connected to the Services;
- you may not attempt to gain unauthorised access to the Services, including but without limitation, through hacking or password mining; and
- you may not use the Services to collect personal information about third parties.
We may use technology (including digital rights management protocols) or other means to protect the Services, protect our customers, or to prevent you from breaching this Agreement.
You may not access the Services if you are a direct competitor of ours, except with our prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
Access by Authorised Users
You are responsible for keeping all access information, including email addresses and log-on credentials, secret and secure. Without limiting this requirement, you agree:
- not to allow any person other than Authorised Users to access and use the Services;
- to ensure that Authorised Users do not permit any other person to use their user name or log-on credentials;
- not to disclose, or permit any Account User to disclose, log-on credentials or any other information (such as security tokens or codes) that may allow any person (other than an Authorised User) to gain access to the Services;
- to inform us immediately of any known or suspected unauthorised access to or use of the Services; and
- you have sole responsibility for setting the administration privileges of each Authorised User and for monitoring whether those privileges are being adhered to.
We may assist you with administrative privileges as part of our Support Services but will only do so if asked by you and will only access your information for these purposes if requested by you.
Privacy and Data
You acknowledge that we are not responsible for, and have no liability in respect of, the Data or how you use the Services. For the avoidance of doubt this includes the accuracy, completeness or quality of Data, the way in which you choose to input or code the Data, how you configure the Services to obtain Data and how you extract, use, store and access Data (including in meeting your statutory obligations).
You acknowledge and agree that we may access or disclose information about you (including Data) in order to:
- comply with the law or legal proceedings served on us;
- enforce and investigate potential breaches of this End User Agreement or any other unauthorised use of the Services; or
- protect our rights, property, or the safety of our employees, customers or the public.
You consent to the access and disclosures outlined in this clause 6.
If you enable Third Party Data Feeds or Third Party Applications in using the Services, you acknowledge that we may allow those third party providers access to your Data to the extent needed to make them work. We are not responsible for any disclosure, modification or deletion of your Data resulting from any such access by third party providers.
In order to provide you with the Services (and improve on them), we may also collect certain information about the performance of the Services and your use of the Services. We may make use of such information to track usage and to better understand the use of the Services, improve and revise the Services based on such usage, publish industry level statistics (whether to you or other subscribers) and for customer support services.
Subject to clauses 7 to 6.10, title and associated intellectual property rights in the Data remain your property. Access to and use of your Data is subject to you not being in breach of this End User Agreement. To the extent necessary to perform the Services you grant a non-exclusive licence to us in respect of your Data. Such licence extends to allowing us access to the Data to any Third Party Applications that you may enable for use in conjunction with the Services, however we shall not be responsible for any such access or use of the Data by any such Third Party Application provider.
You are solely responsible for maintaining a copy of all Data. We have in place for our own purposes policies and procedures to prevent data loss (and recovery) but we do not make any guarantee around loss of your Data and as such we expressly exclude any liability for any loss of Data. No Data will be stored post-termination of this End User Agreement. Where we agree to store your Data post-termination we do so on a no-obligations basis.
You grant to us a non-exclusive royalty-free worldwide and irrevocable license permitting us to copy, anonymize, aggregate, process and display 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 Authorised Users (Anonymous Data).
We may adapt or modify Anonymous Data or combine Anonymous Data with or into other similar data and information available, derived or obtained from other clients, licensees, users, or otherwise (when so adapted, modified, combined or incorporated, referred to as Aggregate Data).
We may use Anonymous Data and/or Aggregate Data to provide services including the copying, publication, distribution, display, licensing or sale of Anonymous Data or 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 Anonymous Data and Aggregate Data.
We may also use Anonymous Data and Aggregate Data to enable us to inform you of any products, software, services or information that we believe you may be interested in.
Payment of fees
You agree to pay us in advance the annual/monthly fee applicable to the Services option you have subscribed to, as notified to you at the time of subscribing to the Services (as amended from time to time by notice to you), together with any other costs and expenses payable by you in respect of the Services (including any Implementation Services).
Where you have provided credit or debit card details to us, we are authorised to deduct any fees from that card as and when due under this End User Agreement, including on an auto-renewal basis as described in clause 3.
If you select to add Software Options specified you agree to pay to us fees based on your usage of the Software Options in advance at the beginning of the next month or billing period (at our election).
The term of the End User Agreement begins the first time you access the Services, and expires when this End User Agreement is terminated.
Either party may terminate this End User Agreement by giving the other at least 30 days’ written notice, however where a minimum term applies, you cannot exercise this right except as set out in clause 3.
If you agree to a minimum term at the time of subscribing then you agree that you will not terminate under this clause 2 until that minimum term has expired. You also agree that on expiry of the minimum term, your subscription will be automatically renewed for another period equal to the minimum term (and that this will occur on a perpetual basis) unless you exercise your rights to terminate under clause 8.2 within 30 days of the expiry of the minimum term or the renewed term (as applicable).
We may immediately by notice in writing to you, terminate this End User Agreement where:
- you fail to comply with any term of this End User Agreement, including failure to pay any applicable fees or charges;
- required by law; or
- we consider it necessary or desirable to do so in the context of compliance with and/or the mitigation of liability under any agreement we have with any provider of Third Party Applications or Third Party Data Feeds;
- we consider it necessary or desirable to do so to protect our interests or the interests of anyone else.
You agree upon expiration or termination of this End User Agreement to immediately cease to access or use the Services and to destroy all access codes or passwords related to the Services and Confidential Information in your possession or under your control.
You will be provided with free access to a Demo Farm when you commit to a 12 month or more paid subscription for the Services. The Demo Farm will contain a set of pre-populated data that you may change and experiment with. However, all changes made by you to the pre-populated data in a Demo Farm will be reset by us weekly. Your access to and use of a Demo Farm is subject to the terms of this End User Agreement, except that access is provided to Demo Farms on an “as is – where is” basis, and as such the warranties given by us in clause 10 do not apply..
Updates, new versions and Beta Services
We may provide updates to, or new versions of, the Services (or any part of it) and reserve the right to take down applicable servers hosting the Website, Software and Applications, to conduct Scheduled Maintenance, or any other urgent maintenance. We will use commercially reasonable efforts to perform Scheduled Maintenance outside of standard business hours and provide prior notification to you.
You must comply with our instructions in relation to any update or new version and notify us of any material defects in accordance with clause 1.
To the maximum extent allowed by law we are not liable for any adverse effect to your use of the Services as a result of an upgrade, update, or new version of the Services (or any part of them).
From time to time, we may invite you to try Beta Services at no charge. You may accept or decline any such trial in your sole discretion. Beta Services will be clearly designated as such, for example as beta, pilot, limited release, preview, evaluation release or similar description. Beta Services are:
- for evaluation purposes only;
- not to be considered as Services;
- unsupported; and
- not guaranteed of ultimate release as Services, or if released, may be subject to additional terms.
Any Beta Services trialled may be withdrawn by us at any time. Beta Services are supplied on an “as is – where is” basis, and as such the warranties given by us in clause 10 do not apply.
We warrant the Services will be provided in accordance with generally prevailing industry standards. You must report any material deficiencies in the Services to us in writing within thirty (30) days of discovery of that defect.
We warrant that the then current, unmodified version of the Software provided by us through the Services will operate in all material respects in conformity with the specifications stated in the Documentation.
In the event of any breach of the warranties in clauses 1 and 10.2 or any other defect or deficiency in the Software, your sole remedy will be (at our option) the repair or replacement of the non-conforming Software within a commercially reasonable time or a refund of the fee paid by you for such non-conforming Software.
In the event of any breach of clause 1, your remedies will be limited to us resupplying the relevant Contracted Services.
We use commercially available anti-virus software in the provision of the Services, but we cannot guarantee that the Services will be free from viruses, trojan horses, worms, time bombs, or similar harmful programming routines.
Specific service disclaimers
As part of the Services, certain pre-coded transactions may be made available to you. These transactions may not have been correctly coded and we are not liable in any way if that has happened. It is your sole responsibility to ensure that transactions are correctly coded.
We are not your accountant and the Services and Applications are not a substitute for taking professional accounting advice.
Any indication of pricing, estimates or comparable examples generated by using the Services are indicative only and not intended to be relied upon by you. You should make your own independent enquiries of any pricing, estimates or comparable information made available through use of the Services.
We are not responsible for the accuracy or adequacy of any third party information sourced by us in providing the Services.
Exclusion of warranties
Beyond clause 10, the Services are provided, to the extent permitted by law, on an “as is” basis without any warranty or condition of any kind, either express or implied. Use of the Services (and any part of them) is at your own risk.
We do not represent that the Services (or any part of them) are error-free or will satisfy all of your requirements. Nor do we provide any warranties in respect of the accuracy, completeness, timeliness or supply of information via the Website (or data storage centres) and/or Farm Focus Applications.
Without limitation, to the fullest extent allowable by law, the disclaimers in this clause 12 extend to implied warranties or conditions of merchantable quality or fitness for a particular purpose or warranties arising by statute or otherwise in law or from a course of dealing or usage of trade.
Without limiting clause 3, you agree that you are acquiring the Services for the purposes of a business, and as such, the guarantees provided under the New Zealand Consumer Guarantees Act 1993 do not apply.
Limitation of Liability
If you suffer loss or damage as a result of any act or omission by us arising out of or in connection with this End User 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 the fees paid by you in the minimum sign-on period, or if no minimum period applies, the fees for the 12 months immediately prior to the act or omission giving rise to such claim.
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 loss, liability, cost, damage or claim suffered or incurred by you in connection with your access to or use of any Third Party Data Feed or Third Party Application.
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, loss of data (including the Data), breach of security or privacy, loss of anticipated savings; or for any indirect, special or consequential loss whatsoever.
You agree to indemnify and hold us, our third party licensors, resellers, 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 use of the Services and/or any breach of this End User Agreement by you. We will not be liable to you or to any other person arising directly or indirectly out of or in connection with the Services, the implementation, maintenance, operation or use of the Services or otherwise in connection with this End User Agreement.
This End User Agreement is personal to you and may not be assigned by you or otherwise dealt with by you 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.
We may assign this End User Agreement at any time by notice in writing to you.
Neither party shall be liable for any delay or failure to fulfil its obligations under this End User Agreement arising directly or indirectly from any circumstance beyond the reasonable control of the affected party (including acts of God, flood, earthquake, storm, fire, epidemic, war, embargoes, riot or civil disturbance), provided that the affected party shall:
- notify the other party as soon as practicable of the event causing the failure; and
- use all reasonable endeavours to continue to perform its obligations and mitigate the effects of the event.
Each party will maintain the confidentiality of all Confidential Information of the other obtained pursuant to this End User Agreement. The provisions of clause 1 do not apply to any information which:
- is public knowledge other than breach of this clause 17;
- 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;
- is required by law to be disclosed; and
- a party designates (by prior written consent) is not subject to these restrictions.
This End User Agreement and the provision of the Services 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 Services.
If any of provision of this End User Agreement is determined to be illegal, invalid or otherwise unenforceable, then to the extent necessary, it shall be severed and deleted from these terms and the remaining terms shall survive and continue to be binding and enforceable.
Any delay, or failure on the part of either party in enforcing any term or condition of the End User Agreement against the other party shall is not a waiver of any right of that party under the End User Agreement.
This End User Agreement is the entire agreement between the parties with respect to the use of the Services and supersedes all prior understandings regarding such subject matter.
Any provision necessary for the interpretation or enforcement of this End User Agreement shall survive any expiry or termination.