Last updated: Thursday 2nd July 2020
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.
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.
Registration by a Customer to access and use the 9S Platform must be performed by:
Following registration, the Customer will be provided with an account on the 9S Platform ("9S Account") which may be customised for the Customer,
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.
The Customer and each User acknowledge and agree that:
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:
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.
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).
The Customer and each User acknowledge that:
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.
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.
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.
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.
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.
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.
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)
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).
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.
9 Spokes may temporarily suspend access by the Customer or any User to the 9S Platform if 9 Spokes reasonably determines that:
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.
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 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,
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.
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.
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.
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.
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.
For the purposes of this clause 21, if the Customer is a person whose normal place of residence for taxation purposes is:
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