Terms and Conditions ofUse.

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

9 Spokes Services

1. Terms and purpose

1.1 9 Spokes provide a service (“9 Spokes Service”) that allows a consolidated point of access to a range of online software applications (“Apps”) from a range of software developers known as “Online Software Partners” (“OSP”) through a Software as a Service application portal.   

1.2  “9 Spokes “ means the entity that makes the 9 Spokes Service available for use in your normal country of residence for taxation purposes, which may be 9 Spokes International Limited (“9 Spokes International ”), a New Zealand registered company (Company number 3538758) with registered offices and principal place of business at Level 4, 8 Mahuhu Crescent, Auckland, Auckland, 1010, New Zealand or any current or future subsidiaries of 9 Spokes International including without limitation 9 Spokes Australia Pty Limited, an Australian registered company (ABN 23 169 029 001) with registered office at MLC Centre, Level 22, 19-29 Martin Place, Sydney, NSW, 2000 Australia and 9 Spokes UK Limited, a company registered in England and Wales.

1.3 These Terms and Conditions of Use (“Terms”) state the terms that govern use of the 9 Spokes Services by any person. The terms “you” or “your” refer to the person using the 9 Spokes Service, Apps, Dashboard and any other services. By using these services, you verify your agreement to these Terms. 

1.4 You may also appoint third party professional advisors, such as accountants and IT service professionals, to have access to your instance of the 9 Spokes Service, for the purpose of assisting you to receive the full benefit of the 9 Spokes Service.  A professional advisor who you have appointed in this way is known as a "Business Support Partner" ("BSP").

1.5 While you may appoint any person as your BSP, 9 Spokes has developed a network of 9 Spokes approved professional advisors, and if you ask 9 Spokes to do so, 9 Spokes will assist you to engage any of these professional advisors as BSPs

1.6 We may amend or modify these Terms at any time and will keep you informed by posting the updated Terms and a notice of the changes on our website at www.9spokes.com.

1.7 Subject to clause 15.1, you may terminate your use of any Apps you’ve purchased at any time. 

2. 9 Spokes Additional Services

2.1 From time to time 9 Spokes may offer to supply to you (or may arrange for a third party to supply to you), 9 Spokes Additional Services (“9 Spokes Additional Services”).

2.2 Before supplying any 9 Spokes Additional Services to you, 9 Spokes will confirm to you:

(a) the nature of the 9 Spokes Additional Services that it will supply; and

(b) any additional fees that you will be required to pay to 9 Spokes for those 9 Spokes Additional Services.

2.3 Subject to your acceptance of Additional Services, 9 Spokes will supply to you, and you must pay for, all 9S Additional Services that have been confirmed in accordance with clause 2.2.

3. Fees and invoicing

3.1 Depending on the App, access to use each App is granted on a subscription basis, and you may be charged a fee for that access (“App Access Fees”). 9 Spokes will notify you of any charges.

3.2 From time to time, 9 Spokes may vary the amount you pay on some or all of the App Access Fees, including by:

(a) temporarily reducing the App Access Fees and fees for Additional Services such as during a promotional campaign; or

(b) permanently reducing or increasing the OSP App Access Fees.

       Any changes in the fees will be notified to you in the 9 Spokes Service.

3.3 9 Spokes may issue to you invoices for fees payable for your use of the Apps and any 9 Spokes Additional Services.  Invoices will be issued on the date of each month you choose when you make your first purchase from the 9 Spokes Service.

3.4 You are required to pay all taxes applicable to the supply of the 9 Spokes Service and any 9 Spokes Additional Services (such as GST, VAT or other sales tax).  The applicable tax will be clearly shown on your invoice.

3.5 Validly issued invoices must be paid on the invoice due date.

3.6 You acknowledge your access to 9 Spokes or an App may be terminated or suspended if invoices are not paid by the due date. 

4. Support services

4.1 You can contact 9 Spokes at any time during support hours to request support with any aspect of your use of the 9 Spokes Service, including the Dashboard. 9 Spokes will endeavour to resolve your support request within a reasonable time.

4.2 Details of 9 Spokes support hours are found on the support pages of the 9 Spokes Service portal.

4.3 You can also contact 9 Spokes at any time during the support hours specified by 9 Spokes to request support with any OSP App. We will make reasonable efforts to refer your support request direct to the OSP on your behalf or otherwise to provide you with directions on how to refer your support request to the OSP directly.

4.4 Other than the referral service described in clause 4.3, you 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 OSP.

4.5 Support may also be available from your BSP and will be subject to the terms and conditions between you and the BSP. 

Licences 

5. Grant of licence in 9 Spokes service and Dashboard

5.1 You acknowledge that the 9 Spokes Service, Dashboard and Apps including their "look and feel" (e.g., text, graphics, images, logos and icons), photographs, content, processes, notices and other material are protected under copyright, trademark and other intellectual property laws and treaties, and all such intellectual property rights are owned or licensed by 9 Spokes or the OSPs.

5.2 9 Spokes grants to you a revocable, non-transferable and non-exclusive licence to use the 9 Spokes Service and Dashboard in accordance with these Terms.  If you are an employer, subject to clause 8.2, you may sub-licence your rights under these Terms to your employees and sub-contractors strictly for your internal business purposes only, provided each sub-licensee is aware of these Terms and that they must not authorise any other person to use the 9 Spokes Service or Dashboard.  You may sub-licence your rights under these Terms to a BSP strictly for the purpose of such BSP assisting you to enjoy the full benefit of the 9 Spokes Service, and provided each sub-licensed BSP is aware of these Terms and that they must not authorise any other person to use the 9 Spokes Service or Dashboard

5.3 You may install the Dashboard app on any devices approved by 9 Spokes from time to time, but you must comply with any directions 9 Spokes may give in respect of the Dashboard app from time to time, including removing or replacing the Dashboard app.

5.4 Other than as explicitly stated in this clause, these Terms do not grant you the right to distribute, rent, loan, lease, sell, sublicense, or otherwise transfer all or part of the 9 Spokes Service or Dashboard or any OSP Apps, or any rights granted by these Terms to any other person. You must not modify, translate, adapt, arrange, or create any adaptation or modification to the 9 Spokes Service or Dashboard for any purpose.  Any rights not expressly granted in these terms are reserved by 9 Spokes and its licensees.

6. License and terms and conditions for OSP Apps

6.1 In addition to these Terms, each App is licensed to you on the terms and conditions specified by each OSP (“OSP Terms”).  OSP Terms will be provided for you to read prior to when you purchase use of any App, and you will be required to indicate your consent to OSP Terms before you can access the App.

6.2 You acknowledge that the OSP Terms will form a binding agreement between you and the OSP, and 9 Spokes has no liability or responsibility to you or any OSP in connection with   any breach or alleged breach, claim or action arising from OSP Terms. 

Your Responsibilities and Restrictions

7. Terms and conditions with BSPs

7.1 Any engagement between you and a BSP is independent of 9 Spokes and will be subject to terms and conditions agreed between you and the BSP ("BSP Terms"), which are unrelated to these terms.

7.2 You acknowledge that 9 Spokes is not a party to the agreement between you and the BSP, and 9 Spokes will have no liability or responsibility to you or any BSP in connection with any breach or alleged breach, claim or action arising from the BSP Terms.

8. Your responsibilities

8.1 You:

(a) are responsible for your compliance with these Terms;

(b) must provide us with accurate information about yourself when you sign up for the 9 Spokes Service;

(c) must immediately notify us and any relevant authorities if you become aware of any use of the 9 Spokes Service that is, or is likely to be, illegal or threatening to the health or safety of any person;

(d) must prevent unauthorised access to or use of the 9 Spokes Service, and notify us promptly of any such unauthorised access or use; and

(e) must only use the 9 Spokes Service in accordance with applicable laws and government regulations.

8.2 If you authorise any other person to use the 9 Spokes Service or any OSP App, or any person gains access to the 9 Spokes Service or any App as a consequence of your negligent act or omission, then you agree that you are fully responsible for the actions of that person and any failure by that person to comply with these Terms or any OSP Terms and you further agree that under no circumstances will 9 Spokes have any liability for any loss or damage suffered by you or any other person arising from your grant of any such authorisation.

9. Restrictions on your use of the 9 Spokes service

9.1 You must not (and must not permit or direct any third party to):

(a) circumvent or modify any security mechanisms employed by 9 Spokes or any OSP in the 9 Spokes Service or any App; 

(b) reverse engineer, decompile, or disassemble the 9 Spokes Service, Dashboard or any App;

(c) imply any affiliation or endorsement of you or any organisation by 9 Spokes or any OSP, except with consent in writing;

(d) sell, resell, rent or lease the 9 Spokes Service, Dashboard or any App;

(e) use the 9 Spokes Service or any App to store or transmit infringing, libellous, defamatory or otherwise unlawful or tortious material;

(f) use the 9 Spokes Service or any App to store or transmit any viruses, trojan horses, backdoors or similar types of code designed to disrupt or interrupt any computer system or service, including the 9 Spokes Service; 

(g) interfere with or disrupt the integrity or performance of the 9 Spokes Service or any App or any transaction being conducted through the 9 Spokes Service, or any other person's use of the 9 Spokes Service or any App;

(h) attempt to gain unauthorised access to the 9 Spokes Service or its related systems or networks, or any part of them, or any App;

(i) interfere with or disrupt the servers or networks connected to the 9 Spokes Service, or disobey any requirements, procedures, policies or regulations of networks connected to the 9 Spokes Service;

(j) use any automatic device, program, algorithm or methodology, or any comparable manual process, to access, acquire, copy, or monitor any portion of the 9 Spokes Service or any App (other than the Dashboard as authorised by these Terms); or

(k) pretend that you are or represent someone else, or impersonate any other person.

9.2 If 9 Spokes determines, in its sole discretion, that you are not complying with any of the above conditions or Terms, 9 Spokes may terminate your licence to use and access the 9 Spokes Service and any App. 

9.3 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 You acknowledge that although 9 Spokes will use its reasonable endeavours and due care and skill to determine that the content on the 9 Spokes Service is accurate and up-to-date, including all data displayed on the Dashboard, 9 Spokes does not warrant that such content will be complete, uninterrupted or error free.

10.2 You acknowledge and agree that: 

(a) you are solely liable and responsible for your business and other activities, and your performance and compliance with laws;

(b) the 9 Spokes Service, including the Dashboard, is prepared on a general basis and may not be appropriate or complete for your specific circumstances or requirements;

(c) the 9 Spokes Service, Dashboard and Apps are designed to assist you in the conduct of your business activities, which may include acting as a reference source for legal, regulatory and policy compliance obligations, but none of the 9 Spokes Service, Dashboard or any App (unless otherwise explicitly stated in relevant OSP Terms) is designed nor intended to guarantee such compliance; and

(d) the legal obligations applicable to you and your business will vary depending on factors pertinent to you and your business, including without limitation your business activities, geographic location and the laws, regulations and industry guidelines that may apply in any particular circumstance.

11. User content and backups

11.1 As the owner of information, data, usernames, other log-in information, materials or other content (collectively, "User Content") you submit to, or process with, the 9 Spokes Service or any App, you grant to 9 Spokes a perpetual, irrevocable, royalty free, sub-licensable, transferable license to use, reproduce, modify and adapt the User Content for any purpose necessary for the supply of the 9 Spokes Service to you, including providing such User Content to OSPs.

11.2 You acknowledge that 9 Spokes will not create backups or otherwise maintain data recovery mechanisms for any of the User Content, and you have sole responsibility for creating, maintaining and verifying any backups of User Content.  You acknowledge that 9 Spokes will have no liability to you under any circumstances resulting from any loss of User Content, even if such loss is caused or contributed to by an act or omission of 9 Spokes, or any failure of the 9 Spokes Service or any App.

11.3 In addition to its rights under clause 11.1, you agree that 9 Spokes may modify User Content by removing from such User Content all material that could identify you or any other person or organisation (“De-identified Content”), and 9 Spokes may then use, reproduce and adapt such De-identified Content. 

12. Usage restrictions and availability

12.1 You understand and agree that the internet is a public communications network that cannot be controlled by 9 Spokes or any OSP, and any data intended to be delivered to you by means of the 9 Spokes Service, Dashboard or any App may be delayed or may not be delivered. 

12.2 You agree that neither 9 Spokes nor any OSP is liable for any delays, failure to deliver, or misdirected delivery of any data; for any errors in the content of data, including in the Dashboard or any App; or for any actions taken or not taken by you or any third party in reliance on data.

12.3 The 9 Spokes Service, Dashboard and OSP Apps may be subject to access or other restrictions on use or availability.  

12.4 You acknowledge that your access and use of the 9 Spokes Service, Dashboard and any App may be interrupted from time to time for any reason, including without limitation, the malfunction of equipment, updates to the 9 Spokes Service or any App, maintenance or repair of the 9 Spokes Service, Dashboard or any App or other actions that 9 Spokes or an OSP, in their sole discretion, may elect to take. 

12.5 9 Spokes will make reasonable efforts to provide you with advance notice of any changes that may affect your use of the 9 Spokes Service. 

13. Confidentiality and data protection

13.1 Each party must maintain the confidentiality of the other party's confidential information (which includes without limitation all information disclosed by one party to the other party in circumstances where an obligation of confidence can or should reasonably be implied) and will not without the prior written consent of the other, use, disclose, copy or modify the other party's confidential information (or permit others to do so) other than as necessary for the performance of its rights and obligations under these Terms.  Each party must take all precautions reasonably necessary to prevent any unauthorised use, disclosure, copying, publication or dissemination of the other party's confidential information, including at a minimum those taken by that party to protect its own confidential information.

13.2 You acknowledge that 9 Spokes may disclose to OSPs so much of your confidential information as is necessary for the OSP to properly supply an OSP App to you.

13.3  9 Spokes will take reasonable commercial measures to protect the security and integrity of the 9 Spokes Services and User Content processed by means of the 9 Spokes Services (but not any OSP App).

13.4 9 Spokes will:

 

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

(b) take all reasonable steps to protect the security and integrity of information that can be used to establish the identity of an individual, sensitive information about an individual and your confidential information; and

(c) take reasonable steps to notify you if it becomes aware of any disclosure of User Content that can be used to establish the identity of an individual, sensitive information about an individual or your confidential information.

13.5 9 Spokes Privacy Policy can be on the 9 Spokes Service portal and at www.9spokes.com.

14. Double Click

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 us to provide targeted advertising in the future. If you do not wish to receive this type of advertising from us in the future you can opt out using the Double Click opt-out page or the Network Advertising Initiative opt-out page.

Termination

15. Termination

15.1  You may terminate your access to any OSP App in accordance with the OSP Terms, but if you do so you acknowledge that:

(a) any OSP App Access Fees you have paid in advance in respect to any terminated OSP App are forfeited, and neither 9 Spokes nor any OSP has any liability to you in respect of such OSP App Access Fees; and

(b) certain OSP Apps integrate or communicate with other OSP Apps and the 9 Spokes Services, and by terminating an OSP App, such integration or communication may be interrupted, degraded or permanently disabled, and neither 9 Spokes nor any OSP has any obligation to notify you of the consequences of terminating any OSP App, nor will 9 Spokes or any OSP have any liability to you for any loss or damage you may suffer as a consequence of your termination of any OSP App.

15.2 9 Spokes may terminate the 9 Spokes Service, or any part of the 9 Spokes Service (including access to any one or more OSP Apps), at any time.  We will use commercially reasonable endeavours to provide you with reasonable notice of the termination of the 9 Spokes Service or any OSP App.  You acknowledge that 9 Spokes’ sole liability to you for termination of the 9 Spokes Service or any OSP App (except where such termination arises from a breach of these Terms by you) will be to provide you with access to your data in accordance with clause 13.3.

16. Suspension

16.1 Subject to clause 13.3, 9 Spokes may temporarily suspend your access to the 9 Spokes Service or any App if 9 Spokes reasonably determines that:

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

(b) otherwise if you are using the 9 Spokes Service in breach of these Terms; or

(c) there is a threat or attack on the 9 Spokes Service or other event that may create a risk to the 9 Spokes Service, any App, you or any other user of the 9 Spokes Service.

16.2 9 Spokes will make reasonable efforts to provide information to you about the reasons for any suspension, and updates regarding resumption of your access to the 9 Spokes Service or any App 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 you may incur as a result of any suspension of the 9 Spokes Service or any App. 

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 provides you with the 9 Spokes Service and Dashboard “as is”, and 9 Spokes does not warrant uninterrupted use or operation of the 9 Spokes Service, or that any data sent by or to you will be transmitted in uncorrupted form or within a reasonable amount of time. Except for any Non-Excludable Rights, 9 Spokes disclaims all representations, warranties and conditions of any kind, whether express, implied or written, oral, contractual or statutory. 

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 you 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 an amount equal to the total amount paid by you to 9 Spokes in connection with the 9 Spokes Service in the 12 month period before the event giving rise to liability arises.  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 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 9 Spokes Service, Dashboard, any OSP App or otherwise in connection with any provision of these Terms, even if 9 Spokes has been advised of the possibility of such damages.

17.4 You acknowledge that the OSP Apps are supplied to you by the relevant OSP, and 9 Spokes has no responsibility for any claim made by you, or any loss or damage suffered by you, arising from your use of any OSP App.  You agree to indemnify, defend and hold harmless 9 Spokes, its respective officers, directors, employees, suppliers, subcontractors and agents from any loss, liability, claim, demand, damage, or expenses (including reasonable legal fees) asserted by you or any third party due to or arising from or in connection with your use of any OSP App.

18. Notices from 9 Spokes

18.1 You agree that you 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 our website or by means of the 9 Spokes Services. Your continued use of the 9 Spokes Service, Dashboard or any OSP Apps after any such changes have been posted constitutes your agreement to the terms and conditions of the updated Terms.

19. Assignment

19.1 Subject to the next sentence, neither 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 you, 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 you hereby give your consent to any such assignment or novation.

20. Miscellaneous

20.1 These Terms are the entire agreement between You and 9 Spokes relating to the 9 Spokes Service and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the 9 Spokes Service, Dashboard, any OSP 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.

20.4 These customer terms and conditions were last updated on 1 February 2017.

21. Governing law and forum for disputes

21.1 For the purposes of this clause 21, if you are 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; or

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

21.2 This Agreement, and your 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.

Last Updated 1 February 2017