Terms and Conditions of Use.

9 Spokes Terms and Conditions of Use

Last updates: Monday 14 May 2018

9 Spokes Services
Licenses
Responsibilities and Restrictions
About the Data Content, Access & Confidentiality
Termination
Other Legal Stuff

9 Spokes Services


1.1          These Terms and Conditions of Use (“Terms”) state the terms that govern use of the software-as-a-service application known as the 9 Spokes Platform (“9S Platform”).  The 9S Platform provides a consolidated point of access to business intelligence data sourced from a range of online software applications (“Apps”) operated by third party suppliers ("App Providers").

1.2          These Terms may be amended or modified at any time by posting the updated Terms and a notice of the changes at www.9spokes.com

2.             The Customer and Registration

2.1          In these Terms, "Customer" means the person (who may be a natural person, company or other legal entity capable of being a party to a contract) that registers for the right to access and use the 9S Platform.

2.2          In these terms "9 Spokes" means the entity that makes the 9S Platform available for use in the Customer's country of residence for taxation purposes, which may be 9 Spokes International Limited (“9 Spokes International”), a New Zealand registered company (Company number 3538758), 9 Spokes Australia Pty Limited, an Australian registered company (ABN 23 169 029 001), 9 Spokes UK Limited, a company registered in England and Wales, or any current or future company related to any of these entities.

2.3          Registration by a Customer to access and use the 9S Platform must be performed by:

(a)           if the Customer is an individual, the Customer personally, or by a person authorised to enter into this contract on the Customer's behalf (such as an employee of the Customer, or the Customer's accountant or other professional service provider acting for the Customer), in which case, that person warrants to 9 Spokes that they have and hold all authority necessary to execute this contract on behalf the Customer; or

(b)           if the Customer is a company or other legal entity, a person authorised to enter into this contract on the Company's behalf (such as a company director or secretary, a duly authorised employee, or a duly authorised third party service provider), in which case, that person warrants to 9 Spokes that they have and hold all authority necessary to execute this contract on behalf the Customer.

2.4          Following registration, the Customer will be provided with an account on the 9S Platform ("9S Account") which may be customised for the Customer, 

3.             Users

3.1          In these Terms, "User" means a person who is authorised by the Customer to access and use the 9S Account.  Unless otherwise stated in these Terms, a User may be any person acting on behalf of the Customer, including any employee, contractor or any provider of professional or other services (such as an accountant, consultant, bookkeeper or IT services supplier).  For the avoidance of doubt, the person who completes the registration of the Customer is typically also the first User of the Customer's 9S Account.

3.2          The Customer (or duly authorised representative of the Customer) may authorise any person to be a User.

3.3          The Customer acknowledges that by its Users using the 9S Platform after registration, the Customer verifies its ongoing agreement to these Terms. For the avoidance of doubt, if the Customer's registration for access and use of the 9S Platform was performed on the Customer's behalf by another person, the Customer will be deemed to be bound by these Terms if its Users use the 9S Platform after registration, even if the person who performed the Customer's original registration was not fully authorised to bind the Customer to these Terms.

3.4          If a User does not accept these Terms, they must immediately stop their use of the 9S Platform and advise the Customer that they have done so. 

4.             Fees and invoicing

4.1          Prior to the Customer acquiring any part of the 9S Platform in respect of which fees are payable, 9 Spokes will give notice to the Customer that invoices will be issued.

4.2          9 Spokes may issue to Customer invoices for any fees payable arising from the use of Apps with the 9S Platform.

4.3          All issued invoices must be paid on the invoice due date.

4.4          Customer must pay all taxes applicable to the supply of the 9S Platform to Customer (such as GST, VAT or other sales tax).  The applicable tax will be clearly shown on the Customer's invoice.

4.5          The Customer and all Users acknowledge that access to the 9S Platform may be terminated or suspended if invoices are not paid by the due date. 

5.             Support services

5.1          9 Spokes will make reasonable commercial efforts to resolve any problem with the 9S Platform of which it becomes aware within a reasonable time.

5.2          The Customer and all Users acknowledge that 9 Spokes has no responsibility for any maintenance or support of any App.  Any problems, defects or issues with an App are the sole responsibility of the App Provider. 

Licences and Apps 

6.             Licence to use 9S Platform

6.1          The Customer and each User acknowledges that all intellectual property rights (including copyright, trademarks and patents) in respect of the 9S Platform are owned by 9 Spokes or its licensees.

6.2          9 Spokes grants to the Customer and each User a non-transferable and non-exclusive licence to use the 9S Platform in accordance with these Terms strictly for the Customer's normal business purposes.

6.3          The Customer and each User acknowledge that the 9S Platform is supplied on a software-as-a-service basis, and nothing in these Terms grants to them any right to receive a copy of any of the software comprising the 9S Platform, or to deal with the 9S Platform in any way, except and only to the extent implied by the means of access to the 9S Platform provided by 9 Spokes (for example, through a web browser accessing the 9 Spokes website or a mobile device app published by 9 Spokes).

6.4          Other than as explicitly stated in this clause, these Terms do not grant to the Customer or any User any right to distribute, rent, loan, lease, sell, sublicense, or otherwise transfer all or part of the 9S Platform or any rights granted by these Terms to any other person. 

7.             License and terms and conditions for Apps

7.1          Each App is licensed in accordance with the terms and conditions specified by each App Provider, and 9 Spokes has no liability or responsibility to the Customer or any User in connection with any breach or alleged breach, claim or action arising from any such terms and conditions or the use of an App.

7.2          The Customer may terminate access to any App at any time in accordance with the terms and conditions specified by the relevant App Provider, but the Customer and each User acknowledge that certain Apps integrate or communicate with other Apps and the 9S Platform, and by terminating an App, such integration or communication may be interrupted, degraded or permanently disabled, and 9 Spokes has no obligation to notify the Customer or any User of the consequences of terminating any App, nor will 9 Spokes have any liability to the Customer or any User for any loss or damage suffered as a consequence of termination of access to any App. 

Responsibilities and Restrictions 

8.             Actions of Users

8.1          The Customer acknowledges that any engagement between the Customer and a User (including any accountant or other professional service provider) is independent of 9 Spokes and will be subject to terms and conditions agreed between the Customer and the User, which are unrelated to these terms.

8.2          The Customer acknowledges that 9 Spokes will have no liability or responsibility to the Customer or any User in connection with any breach or alleged breach, claim or action arising from the terms and conditions agreed between the Customer and any User.

8.3          The Customer indemnifies 9 Spokes against any claim, cost, loss or liability suffered by the Customer, any User or any other person arising from any use of the 9S Platform by any User, except and to the extent such claim, cost, loss or liability arises as a direct result of a negligent or deliberate act or omission of 9 Spokes. 

9.             Accurate Information

9.1          The Customer must provide 9 Spokes with accurate information about the Customer when registering to use the 9S Platform.

9.2          Each User must provide 9 Spokes with accurate information about themselves and their use of the 9 Spokes Platform.

9.3          Each User acknowledges that they must not impersonate any other person, or represent that they hold any authority to act on behalf of any other person (including the Customer) unless they are duly authorised to do so.

9.4          If 9 Spokes determines, in its sole discretion, that a Customer or User has failed to comply with the conditions of this clause, 9 Spokes may terminate the Customer or User's licence to use and access the 9S Platform. 

9.5          9 Spokes will co-operate with relevant authorities in the investigation of any illegal, or suspected illegal, activity associated with any person’s use of the 9 Spokes Service. 

About the Data Content, Access & Confidentiality 

10.          No reliance

10.1        The Customer and each User acknowledge that although 9 Spokes will use its reasonable endeavours and due care and skill to make and keep the 9S Platform and all data displayed on the 9S Platform accurate and up-to-date, 9 Spokes does not warrant that such content will be complete, uninterrupted or error free.

10.2        The Customer and each User acknowledge and agree that:

(a)           the Customer is solely liable and responsible for its business and other activities, and its performance and compliance with relevant laws;

(b)           the 9S Platform is prepared on a general basis and may not be appropriate or complete for the Customer's specific circumstances or requirements;

(c)           the 9S Platform is designed to assist the Customer in the conduct of its business activities, which may include the Customer using the 9S Platform as a reference source for legal, regulatory and policy compliance obligations, but the 9S Platform is not designed nor intended to guarantee such compliance; and

(d)           the legal obligations applicable to the Customer and its business will vary depending on factors pertinent to the Customer's business, including without limitation the Customer's business activities, geographic location and relevant laws, regulations and industry guidelines applicable in a relevant trading jurisdiction, and the 9S Platform has not been designed to account for any such factors. 

11.          Customer Data and Anonymous Data

11.1        The Customer acknowledges that in order for the Customer and Users to enjoy the benefit of the 9S Platform, the 9S Platform will collect, process and store data about the business operations of the Customer, which may include Personal Data (as defined below in clause 13.2. Confidentiality and Data Protection).  This data is known as "Customer Data", and may be collected from a range of sources, including by the:

(a)           manual entry of such data into the 9S Platform by Users; and

(b)           automatic extraction of data from Apps, provided that a User has explicitly requested that 9 Spokes or an App Provider make such data available to the 9S Platform.

11.2        To the extent any intellectual property rights are vested in any Customer Data, the Customer grants to 9 Spokes a perpetual, irrevocable, royalty free, sub-licensable, transferable license to use, reproduce, modify and adapt the Customer Data for the purpose of supplying the 9S Platform to the Customer and each User.

11.3        In addition to the licence granted by clause 11.2, the Customer agrees that 9 Spokes may create new data from Customer Data by modifying Customer Data in such a way that neither the Customer nor any User may be identified or reasonably identifiable from such resultant data (“Anonymous Data”), and 9 Spokes may then manipulate, process, deal, reproduce, distribute and permanently retain such Anonymous Data for any purpose permitted by law without further notice to the Customer.  For clarity, the purposes Anonymous Data may be used for include statistical analysis, aggregation with other data, supply to third parties (including in exchange for payment or other commercial benefit to 9 Spokes), benchmarking, publication and for the display through widgets to any user of the 9S Platform (including users unrelated to the Customer).

12.          Usage Restrictions and Availability

12.1        The Customer and each User acknowledge that:   

(a)           the internet is a public communications network that cannot be controlled by 9 Spokes or any App Provider, and interruptions or disruptions to the operation of any part of the internet may cause the supply of the 9S Platform to be delayed or not to be delivered;

(b)           access and use of the 9S Platform may be interrupted at any time for any reason and without notice;

(c)           while 9 Spokes will attempt to provide reasonable notice of any planned maintenance or other event that is expected to disrupt or interrupt the 9S Platform, 9 Spokes is not required to provide such notice;

(d)           9 Spokes will have no liability for any delay, failure or error in any part of the 9S Platform; and

(e)           they use the 9S Platform at their own risk, and 9 Spokes will have no liability to them arising from any loss or damage caused by any reliance upon the 9S Platform. 

13.          Confidentiality and Data Protection

13.1        9 Spokes will maintain the confidentiality of Customer Data (including Personal Data as defined in clause 13.2 below), and will make reasonable efforts to prevent any unauthorised use, disclosure, copying, publication or dissemination of Customer Data, except and only to the extent necessary to properly supply the 9S Platform.

13.2        In these Terms, "Personal Data" means any information relating to an identifiable person who can be directly or indirectly identified in particular by reference to an identifier.

13.3        In the course of providing the 9 Spokes Service to the Customer via the 9S Platform, 9 Spokes may process Personal Data on behalf of, or relating to the Customer (or where the Customer is not a natural person, its directors, employees, contractors, suppliers or other personnel), or those of the Customer’s affiliates or relevant third parties.

13.4        Wherever 9 Spokes determines the means and purposes of the processing of Personal Data relating to the Customer or any other person, 9 Spokes will be the ‘data controller’ (as such term is understood under applicable data protection laws) of such Personal Data, and the terms of 9 Spokes’ Privacy Notice shall apply to such processing. The privacy of all individuals for which 9 Spokes is a data controller is of great importance to 9 Spokes, and the Customer, and/or any of its impacted personnel who provide Personal Data to 9 Spokes must carefully read the terms of 9 Spokes’ Privacy Notice which will apply wherever the Customer uses 9 Spokes’ services.

13.5        Where 9 Spokes processes any Personal Data on the Customer’s behalf or instruction, 9 Spokes will be a data processor over such Personal Data. Where we do so, a Data Protection Addendum to these Terms will set out the terms applicable to 9 Spokes’ processing activities as a data processor as well as the: types of Personal Data; the categories of data subject which will be processed; the nature and purpose of processing; and the duration of processing.

13.6        The Customer acknowledges that the 9S Platform relies on systems and services supplied by third parties, and, in accordance with the 9 Spokes’ Privacy Notice and Data Protection Addendum (as applicable), 9 Spokes may supply Customer Data (in the case of Personal Data in accordance with clause 13.2) to these third party suppliers to the extent necessary to properly supply the 9S Platform.

13.7        9 Spokes will in accordance with the 9 Spokes’ Privacy Notice 9 Spokes Privacy Notice (where 9 Spokes is a data controller) and the Data Protection Addendum (where 9 Spokes is a data processor):

(a)           comply at all times with applicable privacy and data protection laws;

(b)           take all reasonable steps to protect the security and integrity of (i) information that can be used to establish the identity of an individual, (ii) sensitive information about an individual and (iii) Customer Data; and

(c)           take reasonable steps to notify the Customer if 9 Spokes becomes aware of any disclosure of: (i) Customer Data or other data that can be used to establish the identity of an individual, or (ii) sensitive information about an individual that is associated with the Customer.

14.          Google Analytics and advertising

14.1        9 Spokes use Google Analytics remarketing codes to log when Users view specific pages or take specific actions on a website. This allows Google to provide targeted advertising in the future. If you do not wish to receive this type of advertising in the future you can opt out using the DoubleClick opt-out page https://www.google.com/settings/ads/onweb#display_optout or the Network Advertising Initiative opt-out page http://www.networkadvertising.org/managing/opt_out.asp.

14.2        For further information on our usage of cookies, please click here to see the 9 Spokes’ Privacy Notice

Termination 

15.          Termination

 15.1        9 Spokes may terminate access to, or the availability of, the 9S Platform, or any part of the 9S Platform (including access to any one or more Apps), at any time.  9 Spokes will use commercially reasonable endeavours to provide the Customer with reasonable notice of the termination of the 9S Platform or access to any App (which notice may be provided by any means, including by means of the 9S Platform). 

15.2        The Customer and each User acknowledge that 9 Spokes’ sole liability for termination of access to, or the availability of the 9S Platform (except where such termination arises from a breach of these Terms by the Customer) will be to provide the Customer with access to Customer Data for a period of 30 days after termination. 

16.          Suspension

16.1        9 Spokes may temporarily suspend access by the Customer or any User to the 9S Platform if 9 Spokes reasonably determines that:

(a)           any validly invoiced amounts remain unpaid after the due date;

(b)           there has been a breach of any of these Terms; or

(c)           there is a threat or attack on the 9S Platform or other event that may create a risk to the proper operation of the 9S Platform, any App, or any customer or user of the 9S Platform.

16.2        9 Spokes will make reasonable efforts to provide information to the Customer and Users about the reasons for any suspension, and updates regarding resumption of access to the 9S Platform following any suspension.  

16.3        9 Spokes is not liable for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that a Customer or User may incur as a result of any suspension of the 9S Platform.

Other Legal stuff 

17.          Limitation of Liability

17.1        Other than warranties, conditions, rights or guarantees implied by relevant legislation, the exclusion of which from an agreement would contravene a statute or cause part or all of this agreement to be void (“Non-Excludable Rights”), 9 Spokes disclaims all representations, warranties and conditions of any kind, whether express, implied or written, oral, contractual or statutory.  The Customer and each User agrees that 9 Spokes provides the 9S Platform “as is”, and 9 Spokes does not warrant uninterrupted use or error-free operation of the 9S Platform. Except for any Non-Excludable Rights,

17.2        Except for liability in relation to breach of any Non-Excludable Rights and liability referred to in clause 17.3, 9 Spokes’ maximum aggregate liability to the Customer and any User in contract, including for one or more breaches of any express term or terms of these Terms, tort (including negligence), statute or otherwise, is limited to NZD500.  For liability in relation to breach of any Non-Excludable Rights, to the extent permitted by applicable law, 9 Spokes’ liability is limited, at its option, to the cost of repairing or replacing any defective goods, or supplying again or paying the cost of having supplied again any defective services. 

17.3        Except for Non-Excludable Rights, in no event will 9 Spokes or its suppliers be liable to the Customer or any User for any special, incidental, indirect, punitive or consequential damages whatsoever, including, but not limited to, damages for loss of profits or revenues, loss of confidential or other information, business interruption, personal injury, loss of privacy, corruption or loss of data, failures to transmit or receive data or any other pecuniary loss whatsoever arising out of or in any way related to the use of or inability to use the 9S Platform or any App or otherwise in connection with any provision of these Terms, even if 9 Spokes has been advised of the possibility of such damages. 

18.          Notices from 9 Spokes

18.1        The Customer and each User agrees that they will receive all notices required under these Terms electronically, by any means reasonably nominated by 9 Spokes from time to time, including without limitation by email, by posting on the 9 Spokes website or by means of the 9S Platform. The continued use of the 9S Platform after any such changes have been notified in accordance with this clause constitutes agreement to the terms and conditions of the updated Terms. 

19.          Assignment

19.1        Subject to the next sentence, no party may assign any of its rights or obligations under these Terms, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Without notice to the Customer or any User, 9 Spokes may assign or novate these Terms in their entirety to its related bodies corporate or in connection with a merger, acquisition, corporate reorganisation, or sale of all or substantially all of its assets, and the Customer and each User hereby give consent to any such assignment or novation. 

20.          Miscellaneous

20.1        These Terms are the entire agreement between the parties relating to the 9S Platform and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the 9S Platform, any App, or any other subject matter covered by these Terms.

20.2        Any part or all of any clause of these Terms that is illegal or unenforceable must be severed from these Terms and will not affect the continued operation of the remaining provisions of this agreement.

20.3        Waiver of any power or right under these Terms must be in writing signed by the party entitled to the benefit of that power or right and is effective only to the extent set out in that written waiver. 

21.          Governing Law and Forum for Disputes

21.1        For the purposes of this clause 21, if the Customer is a person whose normal place of residence for taxation purposes is:

(a)           New Zealand, "Agreement Jurisdiction" means New Zealand;

(b)           Australia, "Agreement Jurisdiction" means the State of New South Wales;

(c)           the United Kingdom, "Agreement Jurisdiction" means England; or

(d)           any other jurisdiction, means New Zealand.

21.2        This Agreement, and the Customer and each User's relationship with 9 Spokes, is governed by the laws of the Agreement Jurisdiction.  Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of the Agreement Jurisdiction, and any dispute resolution procedure or legal proceedings in connection with these Terms or the 9 Spokes Service must be conducted in the Agreement Jurisdiction.