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 9Spokes 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 "9Spokes International" means 9 Spokes International Limited, a New Zealand registered company (Company number 3538758) (being the owner of all intellectual property rights in respect of the 9S Platform, and the grantor of the licence to use the 9S Platform under these Terms) and "9Spokes" means the entity that makes the 9S Platform available for use in the Customer's country of residence for taxation purposes, which will be, in: Australia, 9 Spokes Australia Pty Limited (ABN 23 169 029 001); the United Kingdom, 9 Spokes UK Limited; Canada, 9 Spokes Canada Limited, Singapore, 9 Spokes Asia Pte Ltd, the United States of America, 9 Spokes US, Inc, New Zealand, 9 Spokes Operations Limited; or in any other country: any current or future company related to any of these entities which has been incorporated in that country; or otherwise, 9 Spokes Operations Limited.
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 9Spokes that they have and hold all authority necessary to execute this contract on behalf of 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 9Spokes 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,
3.1 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 being granted a right to use any part of the 9S Platform in respect of which fees are payable, 9Spokes will give notice to the Customer that invoices will be issued or subscription fees payable and the amount of those fees.
4.2 9Spokes may issue to Customer invoices or charge subscription fees for any fees payable arising from the use of Apps with the 9S Platform. Alternatively, as set out below, subscription fees may be payable to the App Partner directly rather than to 9Spokes.
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.
The Customer and all Users acknowledge that access to the 9S Platform may be terminated or suspended if invoices or subscription fees are not paid by the due date.
4.5 If the Customer is compelled by law to deduct any withholding tax on fees for the use of the 9S Platform or access to any App, then in addition to any payment due under this agreement, the Customer must pay such amount as is necessary to ensure that the net amount received by 9Spokes (or to App Partner where applicable) after withholding equals the amount 9Spokes (or App Partner) would otherwise have been entitled to if not for the withholding.
5. Support services
5.1 9Spokes 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 9Spokes 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 9Spokes International or its licensors.
6.2 9Spokes International 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 9Spokes International (for example, through a web browser accessing the 9Spokes website or a mobile device app published by 9Spokes).
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 and 9Spokes Connector
7.1 Each App is licensed in accordance with the terms and conditions specified by each App Provider, and 9Spokes 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 Partner, 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 9Spokes has no obligation to notify the Customer or any User of the consequences of terminating any App, nor will 9Spokes 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.
7.3 Using the facilities provided to do so within the 9S Platform, the Customer has access to 9Spokes’ App marketplace, known as Connector, or such other name as 9Spokes may specify from time to time. Connector enables the Customer to purchase Apps and acquire services. If the Customer elects to access Connector, then the following sub-clauses in this clause 7 are applicable to the Customer and its Users.
7.4 Connector is an optional service component of the 9S Platform that allows the Customer to acquire access to a range of cloud-hosted business productivity apps ("Apps") and services from a single location. Apps are independently produced by a range of software developers known as "App Partners”.
7.5 App Partners have entered into arrangements with 9Spokes authorising 9Spokes to either (i) “resell” access to Apps via Connector, with payment being taken by an authorised third party (such as Interworks.cloud or Stripe, Inc.) or (ii) enable App partners to “sell” access to the App, which App is accessed in Connector with a redirection to the App Partner’s website or nominated billing engine for authorisation and processing of payment (Customer will be advised that they are being redirected for this purpose). Depending on the nature of the 9Spokes contracting model with the App Partner, all charges for such access will be payable either to 9Spokes or to the App Partner. This will be made clear to the Customer before the payment is authorised and processed.
7.6 Subject to any restrictions imposed by the App Partner, Users will be able to access each App to which the Customer has purchased access rights through Connector or from the App Partner directly. Such Apps and services will be connected via “Connector”, or such other name as 9Spokes may specify from time to time.
7.7 Without limiting clause 7.1 above, each App is licensed to the Customer on the terms and conditions specified by each App Partner (“App Partner Terms”). App Partner Terms will be provided to the Customer prior to purchase of access rights to any App through Connector, and the Customer will be required to indicate consent to App Partner Terms prior to access to the App being purchased.
7.8 Subject to clause 7.9, the Customer and each User acknowledges that the App Partner Terms will form a binding agreement between the Customer and the App Partner, and 9Spokes has no liability or responsibility to the Customer, any User or any App Partner in connection with any breach or alleged breach, claim or action arising from App Partner Terms. 9Spokes has no obligation to engage with, mediate or resolve any dispute between the Customer and any App Partner arising from App Partner Terms.
7.9 To the extent any term or condition specified in these Terms is inconsistent with any term or condition of any App Partner Terms, the term or condition of these Terms will prevail. Where access rights have been purchased through Connector and the Customer has paid 9Spokes, the Customer has no obligation under any App Partner Terms to pay an additional sum for the same services to the App directly.
7.10 Access to use each App is sold by the App or resold by 9Spokes (depending upon the contracting model as referred to in clause 7.4 above) on a subscription basis at the prices specified by 9Spokes in Connector or by App Partner from time to time (in the case of conflict, pricing by App Partner prevails in the case of a redirect to the App Partner’s landing page or website), and the Customer will be charged monthly or annually in advance for that access (“App Access Fees”).
7.11 The Customer will be obliged to pay all taxes applicable to the supply of the Apps in the Customer's jurisdiction, and the value of any App Access Fees may be increased by the value of, without limitation, any GST, VAT, consumption tax or sales tax.
7.12 Subscription fees for access to the relevant App are payable within the timeframe stated when the Customer purchases access rights.
7.13 The Customer acknowledges that 9Spokes or an App Partner may terminate or suspend access to the 9S Platform, Connector or any Apps at any time if validly issued invoices/subscription fees are not paid by the due date.
7.14 The Customer may terminate its access to any App at any time, but if the Customer does so any App Access Fees paid in advance in respect to any terminated App are forfeited, and neither 9Spokes nor any App Partner has any liability to the Customer in respect of such App Access Fees.
Responsibilities and restrictions
8. Actions of users
8.1 The Customer acknowledges that any relationship between the Customer and a User (including any accountant or other professional service provider) is independent of 9Spokes. No part of these terms governs the relationship between the Customer and the User.
8.2 The Customer acknowledges that 9Spokes 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 any terms and conditions agreed between the Customer and any User, or any act or alleged act or omission of a User affecting a Customer, or vice versa.
8.3 The Customer indemnifies 9Spokes 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 or any breach of these Terms by the Customer or 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 9Spokes.
9. Accurate information
9.1 The Customer must provide 9Spokes with accurate information about the Customer when registering to use the 9S Platform, and warrants to 9Spokes that it has the authority to do so.
9.2 Each User must provide 9Spokes with accurate information about themselves and their use of the 9Spokes Platform.
9.3 Each User acknowledges that they must not access a 9S Account using the access credentials of 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 9Spokes determines, in its sole discretion, that a Customer or User has failed to comply with the conditions of this clause, 9Spokes may terminate the Customer or User's licence to use and access the 9S Platform.
9.5 9Spokes will co-operate with relevant authorities in the investigation of any illegal, or suspected illegal, activity associated with any person’s use of the 9Spokes Service.
About the data content, access & confidentiality
10. No reliance
10.1 The Customer and each User acknowledge that although 9Spokes 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, 9Spokes 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 local 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.
e) 9Spokes provides no representation or guarantee to Customer that the 9S Platform including the Connector offering complies with Shariah laws and the Customer will need to make its own assessment as to the suitability of the 9S Platform.
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 or directed that 9Spokes or an App Provider make such data available to the 9S Platform (without limitation, such an explicit request or direction will be considered given if the User authorises access to the data by 9Spokes using any in-App facility provided by the App Provider).
11.2 To the extent any intellectual property rights are vested in any Customer Data, the Customer grants to 9Spokes 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, except to the extent prohibited by applicable law, 9Spokes 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 9Spokes may then manipulate, process, deal, reproduce, distribute and permanently retain such Anonymous Data for any purpose permitted by applicable 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 9Spokes), 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 9Spokes 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 9Spokes will attempt to provide reasonable notice of any planned maintenance or other event that is expected to disrupt or interrupt the 9S Platform, 9Spokes is not required to provide such notice;
d) 9Spokes 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 9Spokes 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 9Spokes 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 (such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person).
13.3 In the course of providing the 9Spokes Service to the Customer via the 9S Platform, 9Spokes 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 9Spokes determines the means and purposes of the processing of Personal Data relating to the Customer or any other person, 9Spokes will be the ‘data controller’ (as such term is understood under applicable data protection laws in relevant jurisdictions) of such Personal Data, and the terms of 9Spokes’ Privacy Notice shall apply to such processing. The privacy of all individuals for which 9Spokes is a data controller is of great importance to 9Spokes, and the Customer, and/or any of its impacted personnel who provide Personal Data to 9Spokes must carefully read the terms of 9Spokes’ Privacy Notice which will apply wherever the Customer or any User uses 9Spokes’ services.
13.5 Where 9Spokes processes any Personal Data on the Customer’s behalf or instruction, 9Spokes will be a data processor over such Personal Data. The Customer will be a data controller and may use or share such Personal Data in accordance with its own policies.
13.6 The Customer acknowledges that the 9S Platform relies on systems and services supplied by third parties, and, in accordance with the 9Spokes’ Privacy Notice, 9Spokes 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 9Spokes will in accordance with the 9Spokes Privacy Notice:
a) comply at all times with applicable privacy and data protection laws in the relevant jurisdiction;
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 9Spokes 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 9Spokes 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/setting... ) or the Network Advertising Initiative opt-out page (http://www.networkadvertising.... ).
14.2 For further information on our usage of cookies, please click here to see the 9Spokes’ Privacy Notice.
15.1 9Spokes 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. 9Spokes 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 9Spokes’ 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 at least 30 days after termination.
16.1 9Spokes may temporarily suspend access by the Customer or any User to the 9S Platform if 9Spokes reasonably determines that:
a) any validly invoiced amounts or subscription fees payable 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 9Spokes 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 9Spokes 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”), 9Spokes 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 9Spokes provides the 9S Platform “as is”, and 9Spokes does not warrant uninterrupted use or error-free operation of the 9S Platform.
17.2 Except for liability in relation to breach of any Non-Excludable Rights and liability referred to in clause 17.3, 9Spokes’ 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, 9Spokes’ 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 9Spokes 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 9Spokes has been advised of the possibility of such damages.
18. Notices from 9Spokes
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 9Spokes from time to time, including without limitation by email, by posting on the 9Spokes 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.
19.1 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, 9Spokes may assign or novate these Terms in their entirety to any related company of 9Spokes 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.
20.1 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;
d) Canada, "Agreement Jurisdiction" means Canada;
e) Singapore, "Agreement Jurisdiction" means Singapore;
f) the United States of America, "Agreement Jurisdiction" means the State of Delaware; or
g) any other jurisdiction, means New Zealand.
21.2 This Agreement, and the Customer and each User's relationship with 9Spokes, 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 9Spokes Service must be conducted in the Agreement Jurisdiction.