Last Updated 10 June 2024 

1. Binding Agreement

These Support Plan Services Terms and Conditions (the “Terms”) govern the provision of Services (defined below) by InnoCraft Limited, a New Zealand registered company (Reg. No. 6106769), creators of Matomo Analytics (“InnoCraft”, “us”) to you (the “Client”, “you”). 

When you accept an Order Form that includes a Support Plan or purchase Support Plan on Matomo Marketplace, you agree to be bound by these Terms and acknowledge that the Terms represent a binding agreement between you and InnoCraft in relation to the Services (“Agreement”).  

If you are agreeing to these Terms on behalf of a company or other organisation, you represent that you have the authority to bind that company or organisation to these Terms, and the terms “you” and “your” will refer to that company or organisation. If you do not have the authority to bind the company or organisation, or if you do not agree with these Terms, do not order the Services or request an authorised person to purchase the Services on behalf of the company or organisation. 

2. Definitions 

In this Agreement, unless the context otherwise requires: 

“Business Day” means any day other than: a Saturday, a Sunday or a statutory public holiday in Wellington, New Zealand. 

“Commencement Date” means the earliest of the completion of Support Plan Services purchase on Matomo Marketplace, or date on which Order Form or another agreement incorporating these Terms becomes effective.  

“Confidential Information” of a party means any and all information disclosed by the party (disclosing party) to the other (receiving party), whether orally, in writing, electronically, or in any other form, which is designated as confidential or which, under the circumstances surrounding disclosure, ought to be treated as confidential, including without limitation, any business or financial information, Intellectual Property, software, data, personal data, customers, suppliers, or any other information of any nature, technical or otherwise, relating to any product or process of the disclosing party or persons associated the disclosing party. “Confidential Information” specifically excludes information which: 

  • was rightfully in the possession of the receiving party prior to the commencement of negotiations leading to this Agreement; 
  • is already public knowledge or becomes so at a future date (otherwise than as a result of a breach of confidentiality by the receiving party); 
  • is independently developed by the receiving party without use of the disclosing party’s Confidential Information; 
  • is required to be disclosed by law or regulatory authority, provided that the disclosing party is given reasonable notice of such requirement. 

“Force Majeure Event” means an event or circumstance beyond the reasonable control of either party which makes it impossible or illegal to perform, or prevents compliance with, or the performance of, a party’s obligations under this Agreement, including: war (military or civil), acts or threats of terrorism, invasion, embargo, rebellion, revolution, insurrection, strikes, loss of mains power or network connectivity, epidemics, localised disease outbreak, governmental action, civil disorder, fire, flood, hurricane, typhoon, earthquake, lightning, drought, tidal waves, floods, cyber-attacks, denial of service attacks, virus or other malicious software attacks, operating system failure, or infections. 

“Intellectual Property” means the following industrial and intellectual property rights, whether registered or unregistered, and includes copyright, all rights in relation to inventions (including patents), registered and unregistered trade marks and designs, circuit layouts, data and databases, Confidential Information, know-how, and all other similar rights resulting from intellectual activity, existing anywhere in the world, conferred under statute, common law or equity.  

“Representative” means for the Client, the nominated representative who has the authority to represent the Client, and for InnoCraft, a Director. 

“Services” or “Support Plan Services” mean collectively the following in-scope services to be provided by InnoCraft to the Client: 

  1. Support for a single instance of Matomo (an instance is regarded as a single ‘logical’ server running Matomo either as a single server setup or in a load balanced multi-server setup connecting to the same Matomo database); 
  2. Email support with guaranteed answers; 
  3. Assist you by email to set up Matomo and keep it running on your own infrastructure; 
  4. Help to upgrade Matomo to the latest release; 
  5. Help in understanding specific features in Matomo; 
  6. Help in using all features of Matomo such as tracking pages, custom events, storing custom dimensions, tracking objectives and funnels, creating segments, tracking forms and media players, and much more; 
  7. Integration of Matomo into your corporate infrastructure (for example via LDAP or SAML authentication); 
  8. Help in answering questions about specific details of procedures, and to discuss available features, options and limitations; and 
  9. Working with the Matomo software engineering team to isolate, document, and find circumventions for reported software defects; 

up to the selected number of actions per year purchased by the Client. 

For avoidance of doubt, the following items are out of scope of Services: 

  1. Support in relation to alterations or revisions to the Matomo software made by the customer; 
  2. Support in relation to operating systems, third-party applications and custom Matomo plugins, or another vendor’s software; or 
  3. Adding or modifying features of Matomo.  

“Taxes” means any and all taxes (including GST, VAT, income tax and withholding taxes), duties and levies imposed by any competent authority in any jurisdiction. 

3. Obligations of the parties 

  1. Each party agrees to co-operate and work with the other in good faith to enable the effective performance of the required Services by InnoCraft.  
  2. InnoCraft will provide the Services in accordance with this Agreement. 
  3. The Client will make available personnel, information, decisions and processes as may reasonably be required to facilitate InnoCraft’s delivery of the Services in accordance with this Agreement. 

4. Term and Termination 

  1. Term. Services are only available on annual contracts, subject to automatic renewal, unless earlier cancelled or terminated.  
  2. Cancelling Support Plan. You can cancel the Services at any time either by logging into your “My Account” on shop.matomo.org, selecting “Subscriptions” and cancelling the Support Plan or by sending us a cancellation request.  Once cancelled the subscription is set to “Pending Cancellation” and will continue to be active till the end of the paid period.  
  3. Termination. This Agreement is terminated by any one or more of the following: 
    • both parties agree in writing; 
    • if either party is in breach of this Agreement and either: 
      • the breach is not capable of being remedied, or 
      • the party in breach does not remedy the breach within 20 (twenty) Business Days of receiving a notice from the other party stating the details of the breach and what is required to remedy the breach; 
    • at the election of a party if the other party becomes insolvent, goes into liquidation or bankruptcy, has a receiver appointed in relation to its business assets, or enters into any arrangements with its creditors; and 
    • by reason of a Force Majeure Event according to clause 8(c). 
  4. Surviving clauses. Clauses which, by their nature are intended to survive expiry or termination, including clauses 4, 5, 6, 7 and 9, continue in force.  
  5. Effect on Pre-existing Rights. If this Agreement is terminated for any cause, all existing claims and remedies remain enforceable and may be pursued by either party subject to clause 6. 

5. Intellectual Property and Confidentiality 

  1. Pre-existing Intellectual Property: InnoCraft owns and retains all rights, title and interest in and to all Intellectual Property that may subsist in any materials, programs, documentation, data and information owned by InnoCraft prior to the commencement of this Agreement and used by InnoCraft to provide Services.  
  2. Improvements. The Services provided hereunder do not include the creation of any Intellectual Property for Client. InnoCraft retains ownership of any improvements to its products and services that are created, conceived, or reduced to practice in connection with such Services (“Improvements”). InnoCraft does not claim ownership of any Improvements incorporating the Client’s Confidential Information or otherwise violating InnoCraft’s confidentiality obligations. Consistent with Open Source principles, and subject to clause 12(e) InnoCraft may release the Improvements back to the open source software development community, where applicable.  
  3. Licence.  
    • Any software provided to the Client by InnoCraft in connection with the Services shall be governed by the specific license terms accompanying such software. This may include, but is not limited to, open source licenses, the InnoCraft End User License Agreement (EULA), or other proprietary software license agreements. The applicable licensing terms will be communicated to the Client at the time of software delivery. The Client agrees to abide by all such license terms as a condition of using the provided software. 
    • All other support-related documentation and information provided to the Client by InnoCraft is furnished under a worldwide, royalty-free, perpetual, non-sublicensable, and non-transferable license. This license grants the Client the right to use these materials solely in connection with the Services and to facilitate Client’s use of Matomo Analytics. 
  4. Confidentiality and Non-Disclosure. Each party agrees to at all times keep secure and not use or disclose to any third party any Confidential Information of the other party, except as required for the purpose of performing their obligations under this Agreement and subject to the conditions below. InnoCraft will only use Client’s Confidential Information to deliver the Services.  
  5. Access. Each party undertakes to ensure that its employees, agents and sub-contractors who need to know the Confidential Information will adhere to these confidentiality obligations. 
  6. Return or Destruction. Upon the expiry or earlier termination of this Agreement or if and when requested by the disclosing party to do so, the receiving party will return to the disclosing party or destroy any Confidential Information of the disclosing party.  If deleting digital Confidential Information is impractical, the receiving party must inform the disclosing party and continue to protect the confidentiality of any retained Confidential Information. 

6. Liability 

  1. Excluded liability: Neither party shall be liable to the other party for any loss of actual or anticipated business profits, loss of revenue, loss of contract, wasted expenditure or anticipated savings, loss of opportunity, business interruption, loss of business information, loss of or damage to or corruption of data, loss of goodwill or other non-pecuniary loss, or for any indirect, special, incidental, or consequential loss or damage of any kind, arising out of or in connection with this Agreement or the provision of the Services (whether arising from tort (including negligence), contract, equity, statute or otherwise). 
  2. Maximum liability: To the extent permitted by law, InnoCraft’s total aggregate liability arising out of or in connection with this Agreement (whether arising from tort (including negligence), contract, equity, statute, or otherwise) shall be the lesser of the total Fees paid to us by the Client during the 12 months before the claim is made or 10,000 US Dollars. 
  3. Nothing in this clause 6 will exclude or limit InnoCraft’s liability to the extent that it cannot be excluded or limited under applicable law. 
  4. No party is liable to the extent the failure to perform its obligations under the Agreement or otherwise, to the extent the failure is directly caused by other party’s non-compliance with its obligations, or negligence or misconduct of the other party or its personnel.  
  5. Limitation.  No claim against InnoCraft may be filed after 6 (six) months from the date of the act or omission on which the claim is based.  

7. Warranties and disclaimers 

  1. Warranty disclaimer. InnoCraft makes no representations and gives no warranties, guarantees or undertakings concerning its performance of the Services, except as expressly set out in this Agreement. All other warranties, express or implied, by statute or otherwise (including but not limited to the warranties of merchantability, fitness for a particular purpose, and satisfactory quality) are excluded from this Agreement to the fullest extent permitted by law. 
  2. Business to business. The Client agrees that the Services are provided for the purposes of use in a business only. This means that laws designed to protect consumers acquiring goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption, including (but not limited to) the Consumer Guarantees Act 1993 in New Zealand, are expressly excluded from this Agreement to the full extent permitted by law. 

8. Force majeure 

  1. No liability. Neither party will be liable for any act, omission, or failure to fulfil its obligations under this Agreement in relation to any Force Majeure Event. 
  2. Notice. The party unable to fulfil its obligations will immediately: 
    • notify the other party in writing of the reasons for its failure to fulfil its obligations; and 
    • use all reasonable endeavours to avoid or remove the cause of its failure to perform its obligations. 
  3. Termination. If a party is unable to perform any of its obligations under this Agreement due to a Force Majeure Event for a period of at least thirty (30) days, either party may terminate this Agreement by giving thirty (30) days’ written notice to the other provided that if the Client terminates this Agreement InnoCraft shall reimburse the Client the pro-rata portion of the total service costs due from the date of termination.  

9. Disputes and remedies 

  1. Good faith. The parties agree to use their best efforts to resolve any dispute that may arise under this Agreement through good faith negotiations.  
  2. Notice of dispute. A party claiming that a dispute has arisen must give written notice to the other party specifying the nature of the dispute (notice of dispute).  
  3. Escalation. If within ten (10) Business Days of receipt of a notice of dispute, the parties have not resolved the dispute, the dispute must be escalated in writing to the chief executive or equivalent of the Client and a Director for InnoCraft. If within thirty (30) days of from the date it is escalated the dispute cannot be settled and the parties have not reached a written agreement to refer the dispute to alternative dispute resolution method, the parties are entitled to pursue their claim under clause 9(d).  
  4. Law and venue. This Agreement is governed by New Zealand laws. The Parties submit to the exclusive jurisdiction of the Courts of New Zealand in relation to all disputes and issues arising under the Terms or this Agreement.   
  5. Relief. Nothing in this clause 9 prevents either party from seeking urgent interlocutory or injunctive relief.   

10. Notices and variations 

  1. Any notice required to be given under this Agreement may be sent by email to the Representative’s email address or posted via registered post to the address set out below. 
  2. Notices will only be deemed to be received: 
    • in the case of personal delivery, when delivered; 
    • if sent by email, upon receipt; and 
    • five (5) Business Days after they have been posted via registered post. 
  3. The contact details for each party’s Representative are: 
    • For the Client, the details as notified by the Client to InnoCraft; 
    • For InnoCraft: 

11. Payment for Services 

  1. Fee. By purchasing a Support Plan, you authorise InnoCraft to charge you the applicable Support Plan fee (“Fee”), to your selected payment method immediately and on a pre-pay basis for 12 (twelve) months in advance. If you are purchasing Support Plan via an Order Form, InnoCraft will invoice the total Fees due prior to the Commencement Date and prior to providing Services. Invoices are payable within 30 (thirty) days of the date of the invoice, unless the Order Form or invoice state otherwise (in case of a conflict, due date stated on the invoice prevails).  InnoCraft will start providing Services after the full Fee has been paid. 
  2. Automatic renewal. To avoid potential disruption to your Support Plan, we offer automatic annual renewal until the Support Plan is cancelled. Unless you notify InnoCraft before the end of the applicable Support Plan period that you want to cancel, your Support Plan will automatically renew and you authorise InnoCraft to collect the then-applicable annual fee (which may change) for such Support Plan (as well as any taxes that InnoCraft has the legal obligation to collect or pay) using any credit card or other payment mechanism we have on record for you.  If you have chosen Manual Payment as the payment method, we will send a renewal invoice 30 (thirty) days before your Support Plan will expire. 
  3. Late payment. In the event the Fee or renewal Fee remains unpaid after the due date, InnoCraft will notify Client of its intention to stop providing Services to the Client (“Late Payment Notice”). If within 7 (seven) days of the date of the Late Payment Notice the invoice has not been paid, InnoCraft will be entitled to cease providing the Services until payment of the Fee or renewal Fee, without liability or penalty. 
  4. No refunds. No refunds of Fees are available for Support Plan cancelled or terminated before the expiry of their applicable Support Plan period, except as set out in clause 8(c).  
  5. Taxes. Unless otherwise specified, all prices, quotes and estimates are exclusive of Taxes. The Client will pay Taxes in respect of all fees and charges payable by the Client under this Agreement. If the Client is required by law to make any deductions or withholdings, the Client must pay the required amount to the relevant authority, provide InnoCraft with documentation evidencing the payment, and pay InnoCraft any additional amounts necessary to ensure that the net amount InnoCraft actually receives equals the full amount that InnoCraft would have received, had no deduction or withholding been required. 

12. General 

  1. Relationship. InnoCraft is an independent contractor of the Client and no other relationship (e.g., agency, partnership, employment, joint venture) exists between the Parties in relation to this Agreement.  
  2. Severability: If a provision of this Agreement is illegal, invalid, unenforceable or void, it is: (1) deemed modified to the extent necessary to remedy the illegality, unenforceability or invalidity, and (2) where it is not possible, the provision is severed from the Agreement and the remainder of this Agreement has full force and effect.  
  3. Amendment:  We reserve the right to amend these Terms from time to time at our discretion. Unless expressly agreed with you in writing, any updated Terms will take effect from the date we publish them on our website. 
  4. Variation. Any changes to the scope of Services must be mutually agreed by the parties in writing and signed by their authorised representative. InnoCraft has no obligation to accept variation requests. 
  5. Rights of third parties. No person or entity other than InnoCraft and the Client has any right to benefit from or enforce this Agreement.  
  6. Assignment. The Client agrees not to assign its rights and obligations under this Agreement without InnoCraft’s prior written consent.   
  7. Waiver: No waiver of rights under this Agreement is valid unless it is in writing and signed by the authorised Representative of the waiving party.  
  8. Entire agreement: This Agreement sets out the entire understanding between the parties and supersedes all prior agreements or discussions, if any, with respect to the Services. The parties have not relied on any representation, warranty or agreement relating to the subject matter of the Agreement that is not expressly set out in the Agreement, and no such representation, warranty or agreement has any effect from the date the Terms are accepted by the Client.  Without limiting the previous sentence, the parties agree to contract out of sections 9, 12A, and13 of the Fair Trading Act 1986, and it is fair and reasonable that the parties are bound by this clause 12(g).