Online Services Terms and Conditions
The User is a browser based online business management and accounting software service developed by Infusion Business Software Limited (“we”, “us” or “our”). These Terms and Conditions (Terms) govern your use of the Services. In these Terms, “you” and “your” means the individual or organisation registered to use the Services.
By registering for a Service Package you acknowledge you have read, understood and accept these Terms, including the requirement to pay the Fees. If you do not agree to these Terms, do not complete the registration process. We reserve the right to refuse registration to use the Available Services to any person.
You acknowledge that you are responsible for ensuring that the Account Administrator and all Registered Users access and use the Services in accordance with these Terms.
Where an individual is registering to use a Service Package on behalf of an organisation, that individual warrants that he or she has the authority to agree to these Terms on behalf of that organisation.
- In these Terms, unless the context otherwise requires:
Account Administrator means the person nominated by you and having the responsibilities described in clause 6.8;
Available Services means all of the online business management and accounting services that we make available on the Website through the use of the Software to any individuals and organisations, including any support we offer;
Compatible Device means a desktop computer, server, laptop, tablet, iPad, smartphone or any other device which has a browser capable of accessing the Website, such browser meeting any minimum requirements stated on the Website;
- any information or data (including personal information) that you or a Registered User input into the Software through the use of the Services, including any information or data that you generate through your or a Registered User’s use of the Services; and
- any information or data (including personal information) provided to you by a third party that is input into the Software through an interface, including via any electronic data interchange between you and that third party;
Documentation means all explanatory materials relating to the Services;
Fees has the meaning provided at clause 4.1;
Intellectual Property means all copyright, trademarks, designs, patents, domain names, concepts, know-how, trade secrets, logos and all other similar property and rights anywhere in the world, whether registered or unregistered;
Licence Connections means the number of separate instances of the Services to which your Registered Users may connect to on the Website through a Compatible Device at any point in time;
Price List means the schedule of Fees, which schedule is available on the Website and may be updated by us from time to time;
Registered User means a person who is authorised by the Account Administrator to access the Services, and includes the Account Administrator where they access the Services, and may include persons outside your organisation, if such a person is authorised by the Account Administrator;
Service Package means a package comprised of all or some of the Available Services and which may include optional add-on modules, each such package and optional add-on modules being as described on the Website;
Services means the online business management and accounting services of the Service Package (including any add-on modules) that you register for on the Website, including any support we provide to you;
Software means the object code version of the browser based business management and accounting software application developed by us, as patched, updated, upgraded, modified or replaced by us, and includes all versions of such software and any add-on modules available to you for use with the software;
Website means www.infusionsoftware.co.nz.
- Provision of the Software as a Service
- To access a Service Package you must follow the initial sign up process as set out on the Website. We offer different Service Packages, with varying functionality depending on your business needs. Full details of package prices and functionality, including any limitations, are set out on the Website. If you wish to change your Service Package at any time, you can do so through the process on the Website.
- Optional add-on modules, such as SMS and Xtracta, may be obtained with your Service Package at an additional cost, as set out in the Price List.
- All Intellectual Property rights relating to the Website, the Available Services or the Software, including its content, features and functionality are owned by us or our licensors. No right, title or interest in the Website, the Available Services or the Software or their content, features or functionality is transferred to you. Any use of the Software and the Available Services not expressly permitted by these Terms is a breach of these Terms and may also violate copyright laws.
- Subject to these Terms, you are permitted to use the Services, and we grant you a limited, non-exclusive and non-transferable licence to access and use the Software to the minimum extent necessary for you to use the Services. Your use of the Services is limited to use in respect of the business management and accounting functions of your own business only. All other rights are reserved to us. Your use of the Services includes use of the Services by Registered Users outside of your organisation where such use is for your benefit.
- You agree not to copy, reproduce, translate, adapt, vary, decompile, disassemble, reassemble, reverse engineer or modify the Software or the Available Services, nor to communicate it to any third party, without our prior written consent. To avoid doubt, any copying of the Software or the Services that occurs in the normal course of your use of the Services in accordance with these Terms is not a breach of this clause 3.3.
- Charges and Payments
- By registering for a Service Package, you agree to pay:
- all licencing and other fees associated with the Services as detailed in the Price List, including any volume based or usage fees for add-on modules, and any maintenance and hosting charges (Subscription Fees); and
- all fees for additional requested support, if applicable (Additional Support Fees),
(together the Fees).
- The Fees will be invoiced monthly in accordance with the provisions set out in the Price List.
- Payment of all amounts specified in an invoice must be paid in accordance with the provisions set out in the Price List.
- Without prejudice to any right of termination, in respect of any payment which has become due and remains unpaid, we reserve the right to charge interest on overdue payments calculated on a daily basis, based on the average non-penalty interest rate charged by our bank for overdraft facilities, plus 2%.
- We reserve the right to pass on all or any costs, disbursements or charges incurred by us in collecting any outstanding Fees or enforcing or attempting to enforce these Terms.
- Licence Connections
- The licence granted under clause 3.2 shall be limited to the number of Licence Connections you have purchased. Any number of Registered Users may use the Services, provided they are accessing the Services from a Compatible Device, and the number of Registered Users using the Services at the same time does not exceed your Licence Connections.
- The initial number of Licence Connections will be determined during the first registration to use the Services. You may increase or decrease the number of Licence Connections in accordance with the process made available on the Website. Increases or decreases take effect from the date for payment of the monthly Subscription Fee that next occurs 30 days after completing this process.
- Your Obligations
- Use of the Services by you is limited to the Account Administrator, your Registered Users and any person permitted by law to access the Services. You must not permit any other person to use the Services or otherwise access or use the Software or any of the Available Services that are not a part of the Service Package you have obtained.
- The Account Administrator and all Registered Users must have a separate log on and password. You must ensure that the Account Administrator and each Registered User choose a strong password, keep log on details and passwords secure and confidential and do not share them with any other person. You are responsible for all use of the Services by anyone using the log on of the Account Administrator or a Registered User.
- The Account Administrator and all Registered Users must only access the Services through Compatible Devices.
- When accessing the Website and using the Services you, the Account Administrator and each Registered User must not:
- exceed or attempt to exceed any applicable access permissions within the Services;
- violate the security of the Available Services, the Software and the Website, or interfere, damage or harm, or attempt to interfere, damage or harm the Available Services, the Software or the Website, or any system connected to the Software or the Website;
- use any automated system, including without limitation, robots, spiders, or offline readers to access, acquire, copy or otherwise monitor the Available Services, the Software and the Website;
- use the Services otherwise than in the manner in which the Services are designed to be used or use the Services if you have no legitimate reason to do so or in a way that violates any law; or
- input into the Services, any information or data in violation of any law.
- Where you have engaged any third party to provide information or data to you through any interface to the Software, you must ensure that they comply with clause 6.4 in providing that information or data to you. You will be responsible for the provision of that information or data as if you had input it into the Software.
- You must notify us of any actual, threatened or suspected infringement of any of our Intellectual Property rights and of any claim by any third party that any use of the Services, the Software or the Documentation infringes any rights of any other person, as soon as that infringement or claim comes to your notice. You shall (at our expense) do all such things as may reasonably be required by us to assist us in pursuing or defending any proceedings in relation to any such infringement or claim.
- You must use the Services in accordance with the Documentation and any other instructions provided on the Website or required by the Software. You must not permit any Registered User that is outside of your organisation to use the Services otherwise than for the benefit of your organisation.
- It is your responsibility to obtain and maintain a supported network connection appropriate to gain access to the Website and be able to use the Services.
- You must appoint an Account Administrator who:
- will determine who may be a Registered User, and will ensure each Registered User has a separate account;
- set the access permissions of a Registered User within the Services;
- must immediately notify us of any unauthorised use of any Registered User’s account, any other breach of security or if any other incident occurs in relation to a Compatible Device used to access the Website that compromises or threatens or may comprise or threaten the security and integrity of the Services, the Software or the Website.
- The Account Administrator must ensure that each Registered User is aware of the Registered User’s obligations under these Terms and will monitor each Registered User’s compliance with these Terms.
- If using any application programming interface (API) made available by us in conjunction with the Services, you must comply with the API specifications as set out in any related developer’s kit. You must also ensure any third party that interfaces with the Software through such an API in order to send or receive or otherwise exchange Data with you complies with those API specifications and these Terms when using the API. You will be responsible for the acts and omissions of such third parties using the API as if they were your own acts and omissions.
- You are responsible for complying with all applicable laws in using the Services, including without limitation all taxation and accounting laws relating to record keeping and storage of Data.
- Support for the Software is provided to Registered Users by our service desk. One hour of email support per month shall be included in the Subscription Fee. It is your responsibility to manage your use of this included support by Registered Users.
- Additional support may be requested, and shall be charged at the Additional Support Fee rates detailed in the Price List.
- You warrant that you and each Registered User have the right and authority to provide and deal with the Data in the manner contemplated by these Terms.
- The Data you provide in the course of using the Services is held on servers in a third party hosted environment.
- We will take reasonable care in holding the Data. The processes used by the third parties hosting the Data to reduce the risk of Data loss or corruption include replication activities and back up processes. However, a disaster could still occur. Should a disaster occur in relation to the Services and/or the Data we will use reasonable endeavours to restore the Services and (if necessary) the Data from the most recent back up available. However, it is possible that Data may still be lost or corrupted in such a case. Accordingly, it is your responsibility to maintain your own separate copy of the Data so you can re-input any Data that is lost or becomes corrupt. You acknowledge and agree that we are not responsible or liable to you for any loss or corruption of Data as a result of a disaster, including as a result of needing to restore the Services and/or the Data from a back up.
- We will notify you if we become aware of any unauthorised access to the Data.
- Nothing in these Terms transfers ownership of your Data to us or permits us to use your Data for our own purposes.
- Your right to access the Data is subject to the payment of the Subscription Fee. Such access may be suspended, disabled or terminated as set out in clause 13.3 if you do not pay the Subscription Fee.
- You grant us a licence to access, use, copy, transmit, store and back-up your information and the Data for the purpose of enabling us to provide and support the Services, the Software and the Website, and for any purpose related to the provision and support of the Services, the Software and the Website, and as otherwise necessary for us to perform our obligations under these Terms. You must ensure that you have all necessary rights to grant us such licence.
- Our rights in relation to the Data include the right to permit any third party that is providing services to us, including hosting services, to do any of the things set out in clause 8.6 on our behalf or in order to provide services to us, provided that doing so is within the scope of the rights you have granted to us.
- You will at all times comply with the Privacy Act 1993 and all relevant privacy codes in relation to your use of the Services.
- You indemnify us against any losses, costs, expenses, demands or liability whether direct, indirect, consequential or otherwise, and whether arising in contract, tort (including negligence), equity or otherwise, arising (whether directly or indirectly):
- out of or in connection with any claim by a third party in respect of your use of the Services, provided that this indemnity does not apply to the extent that the claim has arisen as a direct result of our negligence or breach of these Terms; or
- as a result of any act or omission by you or a Registered User in breach of these Terms.
- Subject to clause 11, we indemnify you against any claim made by any third party alleging that your use of the Services infringes the intellectual property rights of that third party. The indemnity under this clause 10.2 does not apply if:
- the third party claim arises:
- as a result of your use of the Services, the Software or the Website otherwise than in accordance with these Terms; or
- from or is based on your negligence, your own acts, your business processes, your Data, anything you provide in using the Services, or a failure by you to comply with these Terms; or
- you have not complied with clause 6.5.
- Limits to our Liability
- To the maximum extent permitted by law, we are not liable or responsible to you or any other person for any direct, indirect or consequential loss, or any exemplary, incidental, special or punitive damages or any loss of profits, revenues or business opportunities that you or any other person may suffer or incur as a result of your access of the Website or use of the Services. This exclusion applies regardless of whether such liability or responsibility arises in contract, tort (including negligence), equity, breach of statutory duty, or otherwise.
- To the maximum extent permitted by law, we will not be liable or responsible to you or any other person for any loss, damage, death or injury, suffered or incurred in connection with:
- the Website or the Services or any of its functionality being unavailable (in whole or in part) or performing slowly;
- any error in, or omission from, the Services; or
- any incorrect usage of the Services by you.
- If we are held liable to you, whether in contract, tort (including negligence) or otherwise, then our liability is limited, for all events in the aggregate, to an amount equal to such amount which you have paid to us under this Agreement in the three months prior to the date of the event giving rise to the claim.
- You are responsible for the security of each Compatible Device used to access the Website and use the Services, and for ensuring the manner by which it connects to the Internet protects you from viruses, malware, spyware or other malicious code. We do not accept any liability arising from any failure in the security of the Compatible Device used, or from any viruses, malware, spyware or other malicious code that affects the Compatible Device used to access the Website and use the Services.
- No Warranties
- Except as expressly provided in these Terms, all warranties (including, without limitation, warranties and conditions as to fitness for purpose, merchantability, quality, title and non-infringement), whether express or implied by statute, common law or otherwise, are excluded to the extent permitted by law.
- The availability of the Services is dependent on a third party hosting provider, your ability to access the Internet and other factors outside of our control. As such, we do not warrant that the use of the Services will be uninterrupted or error free. We are not responsible or liable for any failure by you to access the Internet or for a failure in third party communication systems that prevents you from accessing the Website and using the Services.
- You agree that the Services have been acquired for business purposes and accordingly the provisions of the Consumer Guarantees Act 1993 do not apply.
- Our Rights to Suspend or Disable Access, and Termination
- A breach of any of these Terms by a Registered User is deemed to be a breach of these Terms by you.
- We may suspend or disable a Registered User’s account or all of your accounts if you (or any Registered User) breach these Terms, or if we consider it necessary to protect the security or integrity of the Services or the Website or for any other reason.
- Without prejudice to any other remedy available to us, if you default in the payment of the Subscription Fee and if such default continues for a period of not less than thirty days after we have given written notice of such default then, without further notice, we shall be entitled after the expiration of such a notice period to disable the accounts of your Registered Users, terminate your Licence Connections, and prevent you from accessing any Data either by electronic or other means.
- We may otherwise terminate your right to use the Services if we decide to end the availability of the Services to all of our customers. We will provide at least six months notice of any decision to end availability of the Services to all of our customers.
- Your right to use the Services will terminate if you reduce your Licence Connections to zero.
- If your Licence Connections reduce to zero or your right to use the Services is terminated, the Account Administrator’s access will be removed and we may delete your Data. We are not required to provide you with access to any of the Data that has been deleted. In the event you wish to maintain ongoing access to the Data, you must maintain and pay a Subscription Fee for at least one Licence Connection.
- We shall not be liable to compensate you for any losses of revenue, profit or goodwill, damages, costs or any consequential losses which you may suffer from us suspending, disabling or terminating your access to the Services, the Website or the Data under clause 13.3.
- No reliance:
- You agree that you have entered these Terms solely in reliance on its own skill and judgment and not in reliance on any statement, representation or warranty made by us or on our behalf.
- You agree that you have had the opportunity to test the Services and have satisfied yourself that the Services suits the purposes of your organisation.
- Force majeure: We do not have any liability for any failure of the Website, the Services or Software, or any failure by us to comply with these Terms if such a failure is due to an act, event or cause which is beyond our reasonable control, including acts of God, war, sabotage, riot, national emergency, fire, lightening, flood, cyclone, earthquake, landslide, storm, explosion, power shortage, telecommunication outages, strike or other labour difficulty.
- Severance: If any provision of these Terms becomes invalid or unenforceable that provision shall be severed from the remaining Terms and the remaining Terms will continue in full force and effect.
- Updates to these Terms: We may amend these Terms at any time. Where we amend these Terms we will state on the Website that the Terms have been updated. The Terms as amended will apply to all use of the Services by you after the Terms are amended. You acknowledge that your continued use of the Services is your agreement to the amended Terms.
- Governing Law: These Terms, and your use of the Software, shall be governed by and construed in accordance with New Zealand law, and you agree that the Courts of New Zealand have the non-exclusive jurisdiction to hear and determine any proceedings brought in relation to these Terms, and your use of the Software.