Capitalized words shall have the following meanings or the meanings set forth in the section where they are first used: “Account Owner” means the individual, or in the case of an individual entering into these Terms on behalf of an Entity, that Entity. “Account User” means the Account Owner, or each employee, agent or contractor of the Account Owner who is authorized to use the Services from time to time on behalf of the Account Owner. “Agreement” means the Terms and Statement of Work thereto between You and us. “Cin7”, “we”, “us” or “our” means Cin7 Americas, Inc., which is incorporated in Delaware United States of America, and all current and future global subsidiaries, including, without limitation, Cin7 Limited, Cin7 UK Limited, Cin7 Australia Pty Limited and Cin7, Inc. (United States). “Cin7 Omni Account” means a current Subscription Plan(s) to the Services. “Confidential Information” means all information directly or indirectly made available or exchanged by one party (the “Providing Party”) to the other party (the “Receiving Party”) to this Agreement, whether in writing, electronically or orally, including through use of the Services that is designated as “confidential” or is otherwise reasonably expected to be treated in a confidential nature, and includes any personal information provided or received. Confidential Information does not include information that (a) is or becomes publicly available through no fault of the Receiving Party; or (b) the Receiving Party can show, by clear and convincing evidence, is independently acquired or developed by the Receiving Party without breaching any of its obligations under this Agreement or at law, and without the benefit or use of any of the Providing Party’s Confidential Information disclosed by the Providing Party; or (c) is in the possession of the Receiving Party without restriction in relation to disclosure before the date of receipt from the Providing Party; or (d) is lawfully acquired by the Receiving Party from a third party, provided such information is not obtained as a result of a breach by that third party of any confidentiality obligations owing to the Providing Party. “Data” means any data inputted by You or with Your authority into the Website and Services. “Entity” means any:
(a) company or corporation;
(c) limited partnership;
(d) partnership or firm;
(e) agency of any government or authority;
(f) public, territorial or regional authority; or
(g) other incorporated or unincorporated body of persons.
“Intellectual Property Right” means any and all intellectual or industrial property rights and interests held, owned or lawfully used, anywhere in the world, whether or not registered, including, without limitation:
(a) Patents, trademarks, service marks, copyright, registered designs, trade names, symbols and logos;
(b) Patent applications and applications to register trademarks, service marks and designs; and
“Services” means the Cin7 Omni Website and online ordering and point of sale services and contract, inventory, purchase order, price list, supply chain and stock management services provided under Your Subscription Plan(s) accessed and used using Your login name and password. These services may be changed or updated from time to time by Cin7 via the Website. Certain services may be accessed offline, depending on Your Subscription Plan(s). “Services” also include services under a Statement of Work, where applicable. “Statement of Work” means a statement of work referring to these Terms that is agreed between You and Cin7, and specifies, among other things, services and deliverables to be provided by Cin7 and fees to be paid by You. “Subscription Charges” means the monthly fee (excluding any taxes and duties) payable by You for the Services and Your Subscription Plan in accordance with the quote to You. The charges in the quote are based on a number of factors. If those factors change, we will notify You of the need for a pricing review and will provide an updated quote at least twenty (20) days prior to the increase in charges taking effect. For the avoidance of doubt:
any such quote will replace any prior pricing arrangements You may have had with Cin7; and
the Subscription Charges will not be discounted if, in any month, You do not use all available modules, including the maximum number of Account Users, under Your Subscription Plan.
“Subscription Plan” means the modules selected by an Account Owner which determines the extent and type of Services provided, the maximum number of Account Users permitted to access the Service, and the Subscription Charges. “Website” means the Internet site at the domain cin7.com or any other site operated by Cin7 Americas, Inc. linking to these Terms. “You” and “Your” means the Account Owner, and where the context permits, an Account User.
2. USE OF THE SERVICES
Cin7 grants You the right to access and use the Services via the Website through Your Cin7 Omni Account according to Your Subscription Plan. Depending on Your Subscription Plan, certain Services may be available for use offline. Offline use may be dependent on You having particular technology, applications or systems set up. These will be advised to You when You select the Service. This right of use is non-exclusive and non-transferable, subject to these Terms and any applicable written agreement between the Account Owner and the Account Users, and any other applicable laws. Your use of the Services in Your jurisdiction is at Your own risk. You confirm that You have complied with all laws applicable to You when using the Services.
3. Implementation Services
If implementation or onboarding services are selected along with the Services as indicated in Your quote, You will pay for such implementation services at the time of purchase or as otherwise set forth in the applicable quote or invoice. Such payments are non-cancellable after the commencement of services and nonrefundable. Cin7 retains all right, title, and interest in and to any implementation services and Intellectual Property Rights therein, and You shall have no rights therein except as expressly set forth in this Agreement.
4. YOUR OBLIGATIONS
4.1 General obligations:
(a) You must only use the Services for Your own lawful internal business purposes in accordance with these Terms and any notice sent by Cin7 or condition posted on the Website. It is Your sole responsibility to determine that the Services meet the needs of Your business and are suitable for the purposes for which they are used.
(b) You remain solely responsible for complying with all applicable laws and accounting, tax and other regulations, including those applicable to the submission and storage of and access to Your Data (including any applicable privacy laws and laws requiring You to retain records). Additionally, Cin7 reserves the right to audit usage of the Services and enforce changes, with fair and reasonable notice, in order to comply with applicable laws and regulations.
(c) You must maintain copies of all Data inputted into the Service. If Your Subscription Plan includes offline Services, You will also need to keep copies of the Data necessary for those Services on Your system. Cin7 adheres to its best practice policies and procedures to prevent data loss, including creating periodic back-ups of Data, but Cin7 does not make any guarantees that there will be no loss or corruption of Data. Cin7 expressly excludes liability for any loss or corruption of Data, no matter how caused.
(d) You must not input or store PCI or other financial account data or highly sensitive personal information into free text fields available as part of the Services.
4.2 Account Owner obligations:
(a) The Account Owner may use the Services and the Cin7 Omni Account for the Account Owner’s internal business purposes in relation to the Account Owner’s business only.
(b) The Account Owner must not use, nor allow any person (including any Account User) to use, the Services or the Cin7 Omni Account in relation to, or for the purposes of, any other business (including the business of any other Entity or individual).
(c) The Account Owner is responsible for determining who can be an Account User and what level of access to the Subscription Plan modules each Account User has.
(d) The Account Owner controls each Account User’s level of access to the Cin7 Omni Account and Subscription Plan at all times and can revoke or change an Account User’s access, or level of access, at any time and for any reason.
(e) The Account Owner is responsible for all Account Users’ use of the Service, and Cin7 has no responsibility or liability for the actions of any Account User.
(f) Cin7 will not be a party to any dispute between an Account Owner and an Account User for any reason.
4.3 Access conditions:
You must ensure that all usernames and passwords required to access the Services are kept secure and confidential. All Account Users and Account Owners must select their passwords carefully, and password numbers must not be sequential or easily-identifiable numbers (for example, birthdates, 1-2-3-4 or 1-1-1-1). You must immediately notify Cin7 of any unauthorized use of Your passwords or any other breach of security and Cin7 will reset Your password and You must take all other actions that Cin7 reasonably deems necessary. When accessing and using the Services, You must:
(a) not attempt to undermine the security or integrity of Cin7’s computing systems or networks or, where the Services are hosted by a third party, that third party’s computing systems and networks;
(b) not use, or misuse, the Services in any way which may impair the functionality of the Services, or other systems used to deliver the Services or impair the ability of any other user to use the Services;
(c) not attempt to gain unauthorized access to any materials other than those to which You have been given express permission to access or to access the computer system on which the Services are hosted;
(d) not transmit, or input into the Services, any unsolicited commercial email or other files that may damage any other person’s computing devices or software, content that may be offensive, or material or Data in violation of any law;
(e) not attempt to modify, copy, make derivative works based on, adapt, reproduce, disassemble, decompile or reverse engineer any part of the Services except as permitted by law;
(f) not use or permit the use of the Services for the business of any other Entity or individual;
(g) ensure that each Account User is allocated to and used by only one person at any time; and
(h) ensure that each Account User does not access the Services from more than one device at any one time.
(i) not use in any manner for the purpose of developing, distributing or making accessible products or services that compete with the Services;
(j) not otherwise use except as expressly permitted hereunder, in each case of (a) – (j), in whole or in part, the Services.
You are responsible for Your configuration of the Services and any required hardware and the compatibility of the Services with any required hardware, application or system set up. Cin7 will provide helpdesk assistance as set out in these Terms, but Cin7 is not responsible for any required configuration.
(a) Your Subscription Plan commences when You set up Your Cin7 Omni Account, select the Services modules You require and submit Your billing details. Your first month’s Subscription Charges are due in full upon commencement of the Subscription Plan.
(b) You authorize Cin7 to invoice and receive payment from You in advance for Subscription Charges on a monthly basis and in accordance with the quote provided to You, until You terminate Your Cin7 Omni Account in accordance with these Terms and cease to use the Service. You agree to pay any Subscription Charges incurred during the time that the Services is used or subscribed to, including for any additional modules of the Services that You select during the term of Your use of the Services.
(c) You will pay the Subscription Charges by credit card or by direct debit, if agreed by us. We may require You to provide both direct debit and credit card details as alternative payment methods. In supplying Your bank account and/or credit card details to Cin7’s payment service, You authorize Cin7 to invoice and the payment service provider to process payment of Your subscription charges and any other outstanding amounts (as applicable) as they become due. If Your payment by one payment method fails, You acknowledge that we are authorized by You to take payment from the alternative payment method You have provided. If You are using Cin7 outside New Zealand, You agree to pay Cin7 by credit card, or such other payment method as notified to You.
(d) All billing is calculated on the basis of whole calendar months. Where a new Subscription Plan module is added to Your Cin7 Omni Account, any additional costs payable by You will be pro-rated for the remaining period of the calendar month in which You add the Subscription Plan and will be billed on the basis of whole calendar months going forward.
4.6 Changing Your Subscription Plan:
Changing Your Subscription Plan by reducing the modules You subscribe to may cause loss of content, features, or capacity of the Services You receive, and Cin7 does not accept any liability for losses arising as a direct or indirect consequence of this.
No refunds or credits for Your Subscription Charges will be provided if You elect to downgrade or terminate Your Subscription Plan during a calendar month. In the case of a downgrade, the new Subscription Charge for the downgraded Subscription Plan will apply from the beginning of the calendar month following the month in which the Subscription Plan was downgraded.
4.8 Offline Services:
In the event of online access interruption, You can still use elements of Cin7, such as, the point of sale module. You will be responsible for the operation of the offline services and for ensuring all required Data is stored in Your system to ensure that the Services can operate correctly.
4.9 Fair use:
Your use of the Services must be reasonable and not excessive. Cin7 (acting reasonably) may determine Your usage to be unreasonable and excessive if on average it materially exceeds the average level of usage of other users in that same period (“Excessive Use”). If we reasonably consider that Your use is Excessive Use, we will use reasonable endeavors to notify You of the Excessive Use, and You will have three (3) days after the date of that notification to reduce Your usage. If You fail to sufficiently reduce Your usage after three (3) days, we may:
(a) immediately suspend, modify or limit You use of the Services; or
(b) charge You for the Excessive Use at a rate determined by Cin7, which Cin7 will notify to You in writing.
4.10 New Services:
Requests for new Services or features not currently offered may be made by contacting Us. We will discuss Your requirements and any associated costs with You prior to commencing any work. The timing of any new Services or features will depend on the nature of the request.
4.11 Statements of Work:
No custom professional services are contemplated by this Agreement. If the parties mutually agree for Cin7 to provide any professional services, the parties will enter into a separate Statement of Work or other written agreement with respect thereto.
5.1 Technical Problems:
In the case of technical problems, You must make all reasonable efforts to investigate and diagnose problems before contacting Cin7. If You still need technical help, please check the support provided online by Cin7 on the Website. Cin7 is entitled to charge the Account Owner if Cin7 reasonably considers the Account Owner and/or Account Users to have made Excessive Use of the support services or for support services that do not relate to technical queries associated with responding and correcting (if possible) any defect, error or bug in the Services.
5.2 Services Availability:
Whilst Cin7 intends that the Services should be available with an uptime of 99.7%, twenty four (24) hours a day, seven (7) days a week, it is possible that on occasions the Services may be unavailable. If for any reason Cin7 has to interrupt the Services for longer periods than Cin7 usually anticipates, Cin7 will use reasonable endeavors to publish in advance details of such activity on the Website. Cin7 will have no liability to You for unavailability of the Services.
6. WARRANTIES AND ACKNOWLEDGEMENTS
6.1 Your representations and warranties:
You represent and warrant that You are authorized to create the Cin7 Omni Account (where applicable), to access and use the Services and to use the information and Data that You input into the Services, including any information or Data input into the Services by any person. You represent and warrant that You are also authorized to access the processed information and Data that is made available to You through Your use of the Services (whether that information and Data is Your own or that of anyone else).
6.2 Acknowledgement: You acknowledge that:
(a) Cin7 has no responsibility to any person other than You and nothing in this Agreement confers, or purports to confer, a benefit on any person other than You. If You are an Authorized Person, You warrant that You have the appropriate permissions from the Account Owner, and acknowledge that You must comply with these Terms, and that You are responsible for all Your Data;
(b) You are responsible for authorizing any person who is given access to information or Data, and You agree that Cin7 has no obligation to provide any person access to such information or Data without Your authorization and may refer any requests for information to You to address.
(c) Cin7 is not Your accountant and use of the Services does not constitute the receipt of accounting advice.
6.3 Disclaimers; No warranty by Cin7:
(a) THE PROVISION OF, ACCESS TO, AND USE OF THE SERVICES IS ON AN “AS IS” BASIS AND AT YOUR OWN RISK.
(b) CIN7 DOES NOT WARRANT THAT THE USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. AMONG OTHER THINGS, THE OPERATION AND AVAILABILITY OF THE SYSTEMS USED FOR ACCESSING THE SERVICE, INCLUDING COMPUTER NETWORKS AND THE INTERNET, CAN BE UNPREDICTABLE AND MAY FROM TIME TO TIME INTERFERE WITH OR PREVENT ACCESS TO THE SERVICES. CIN7 IS NOT IN ANY WAY RESPONSIBLE FOR ANY SUCH INTERFERENCE OR PREVENTION OF YOUR ACCESS OR USE OF THE SERVICES. CERTAIN MODULES OF YOUR SUBSCRIPTION PLAN MAY BE AVAILABLE FOR OFFLINE USE, AND YOU ARE RESPONSIBLE FOR MAINTAINING THE REQUIRED SYSTEMS TO THE LEVEL REQUIRED FOR THOSE MODULES.
(c) CIN7 DOES NOT WARRANT THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, THAT THE SERVICES AND ANY DATA USED ARE UP-TO-DATE, OR THAT THE SERVICES WILL BE SUITABLE FOR ANY PARTICULAR PURPOSE OR SUFFICIENT TO SATISFY ANY OF YOUR LEGAL OBLIGATIONS (INCLUDING UNDER ANY APPLICABLE PRIVACY LAW). TO AVOID DOUBT, ALL IMPLIED CONDITIONS OR WARRANTIES ARE EXCLUDED TO THE EXTENT PERMITTED BY LAW, INCLUDING (WITHOUT LIMITATION) WARRANTIES OF MERCHANTABILITY, FITNESS FOR PURPOSE, TITLE AND NON-INFRINGEMENT. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE SERVICE IS PROVIDED FOR THE PURPOSE OF YOUR BUSINESS AND ACCORDINGLY THE CONSUMER GUARANTEES ACT 1993 AND SECTIONS 9, 12A, 13 AND 14(1) OF THE FAIR TRADING ACT WILL NOT APPLY TO THESE TERMS, THE WEBSITE OR THE SUPPLY OF THE SERVICE.
(d) ADDITIONALLY, CIN7 GIVES NO WARRANTY: (i) ABOUT THE OPERATION, PERFORMANCE OR FUNCTIONS OF ANY THIRD-PARTY SERVICES THAT CIN7 INTEGRATES INTO, NOR FOR THE PERFORMANCE OF THE INTEGRATION; (ii) THAT ANY CUSTOMIZATION THAT MAY HAVE BEEN PERFORMED FOR YOU WILL BE COMPATIBLE WITH ANY UPDATES TO THE SERVICES, ANY HARDWARE, APPLICATION OR SET-UP OR THAT ANY SUCH CUSTOMIZATIONS WILL CONTINUE TO WORK AFTER ANY UPGRADE OF THE SERVICES BY CIN7.
(e) Cin7 may from time to time need to remove modules, or certain functionality within modules, that may be part of Your Subscription Plan. Cin7 will use reasonable endeavors to provide You with advance notice of any intention to remove modules or functionality from the Service, but You acknowledge that Cin7 will not be responsible for any failure to do so, and Cin7 will not be responsible for any loss that You may suffer as a result of the removal of that module or that functionality. Where appropriate, Cin7 may refund to You any Subscription Charges paid in advance for that module where the module will no longer be available.
7. AUTHORIZED PERSON
7.1 Authorized Person:
Where an Entity (as an “Authorized Person”) is registering for the Services on behalf of the Account Owner, the Account Owner and the Authorized Person warrants that:
(a) it has the authority from the Account Owner to agree to these Terms on behalf of the Account Owner and to access information and give instructions on the Account Owner’s behalf in relation to these Terms;
(b) by registering to use the Services on behalf of the Account Owner, the Authorized Person binds the Account Owner to the performance of any and all obligations (including payment obligations) of the Account Owner under these Terms, without limiting the Authorized Person’s personal obligations under these Terms;
(c) where the Authorized Person pays the Subscription Charges on behalf of the Account Owner, it shall not charge the Account Owner any premium or additional amount for the Services; and
(d) we may rely upon and act in accordance with any instructions received from the Authorized Person, as if they had been made by the Account Owner and without further permissions.
7.2 No liability:
Cin7 is not liable in respect of any act or omission of Cin7 in reliance on any notice or instructions given by the Authorized Person.
7.3 Removal of Authorized Person:
If the Account Owner requests that we do so, we may remove the Authorized Person’s access to the Account Owner’s Subscription Plan and Data.
8.1 Account Owner indemnity:
You will indemnify and hold harmless Cin7 against all expenses, fines, losses (including loss of profit), damages and costs (collectively, “Losses”) sustained or incurred by Cin7 arising directly or indirectly from Your breach of any of these Terms, including any costs relating to the recovery of any Subscription Charges that are due but have not been paid by You. Without limiting the forgoing, You will indemnify Cin7 against any claims or Loss relating to:
(a) Cin7’s refusal to provide any person access to Your information or Data in accordance with these Terms
(b) Cin7’s making available information or Data to any person with Your authorization; and
(c) any claim by any third party that You do not have the right to use any Data, or that Your use of any Data is a breach of a third party’s Intellectual Property Rights.
8.2 Authorized Person’s indemnity:
Where an Authorized Person registers for the Service on behalf of an Account Owner pursuant to clause 6, the Authorized Person will indemnify Cin7 for any Loss sustained or incurred by Cin7 (including the matters set out in sub-clause 7.1(a) to (c) above with “Authorized Person” or “Authorized Person’s” replacing “You” or “Your” respectively) arising directly or indirectly from the Authorized Person’s breach of any of the warranties set out in clause 6.1 or that arise as a result of Cin7 acting in accordance with any instruction by the Authorized Person, including any costs relating to the recovery of any Subscription Charges that are due but have not been paid by the Account Owner and any Loss relating to it.
9. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL CIN7 BE LIABLE OR RESPONSIBLE TO YOU (OR ANY OTHER PERSON) IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR LOSS (INCLUDING BUT NOT LIMITED TO LOSS OR CORRUPTION OF INFORMATION, LOSS OR CORRUPTION OF DATA, THE COST OF RECOVERING SUCH DATA OR INFORMATION AND ANY LOSS OF BUSINESS PROFITS, SAVINGS, GOODWILL, REPUTATIONAL DAMAGE, REFUNDS OR CHARGEBACKS INCURRED (INCLUDING FROM AMAZON.COM, INC OR ANY AMAZON GROUP COMPANIES), BUSINESS OR ANTICIPATED BUSINESS) OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH ANY USE OF, OR RELIANCE ON, OR INABILITY TO USE OR RELY ON THE SERVICES OR WEBSITE OR FROM ANY FAILURE BY YOU TO COMPLY WITH THESE TERMS.
9.2 MAXIMUM AGGREGATE LIABILITY:
THE MAXIMUM AGGREGATE LIABILITY OF CIN7 TO YOU FOR ANY REASON RELATING TO THIS AGREEMENT, THESE TERMS, THE WEBSITE OR THE SERVICES WILL BE LIMITED TO THE SUBSCRIPTION CHARGES PAID BY YOU IN THE 12 MONTHS PRIOR TO THE OCCURRENCE OF THE FIRST INCIDENT. IN RELATION TO ANY MARKETING SERVICES MAXIMUM AGGREGATE LIABILITY OF CIN7 TO YOU WILL BE LIMITED IN RESPECT OF ALL INCIDENTS IN ANY 12 MONTH PERIOD, TO THE MANAGEMENT FEE PORTION OF THE SUBSCRIPTION CHARGES PAID BY YOU IN THE PRIOR 12 MONTHS.
9.3 EXCLUSIVE REMEDY:
IF YOU ARE NOT SATISFIED WITH THE SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO TERMINATE THESE TERMS IN ACCORDANCE WITH CLAUSE 12.
10. CONFIDENTIALITY, PRIVACY AND DATA
Each party shall keep the other party’s Confidential Information confidential and secure. Neither party shall use the Confidential Information of the other party for any purpose except to exercise its rights and perform its obligations under these Terms. Neither party shall disclose or permit disclosure of the Providing Party’s Confidential Information to any third party, except to employees or representatives who have a need to know and are subject to a written obligation of confidentiality at least as protective as that herein. This obligation does not apply to any disclosure of Confidential Information:
(a) required to be disclosed by law, provided that such information otherwise remains Confidential Information for all other purposes and the other party is given a reasonable opportunity to obtain a protective order; or
(b) that the Providing Party agrees to in writing before the disclosure is made.
10.2 Performance Data:
Cin7 may use and retain Data inputted by You in aggregate form and collect and analyze log and other data related to the Services and the provision, use, performance, and other aspects of the Services and related systems technologies (“Performance Data”) and use and retain such Performance Data and Your Data internally to train Cin7’s algorithms, to troubleshoot, improve, and enhance the Services and for other development, diagnostic, security and corrective purposes.
(b) we process personal information in relation to the Services for the purpose of providing You with Services and to enable Your end customers to use Your services. We use this information only to the extent and for the duration required to provide the Services, and process only the personal information that You have collected and provided to us for that purpose. You understand and confirm that You will not provide any personal information to us that is not required for You or Your end customers to receive the relevant Services, and You acknowledge that Cin7 does not filter or validate any data (including personal information) that You provide to Cin7. You agree that validation and filtering will be Your sole responsibility.
(c) All our staff, contractors and service providers who may process personal information have agreed to appropriate confidentiality obligations with respect to that processing.
(d) we take appropriate technical and organizational measures to ensure the security of personal information in the context of the Services.
(e) If You are required to make a notification of a breach in relation to personal information, and/or to conduct a privacy impact assessment, we will use reasonable endeavors to assist You with such matters, taking into account the impact on Our business activities, and noting that such a request should only be made within normal business hours in Auckland, New Zealand. Our assistance will also take into account the nature of the personal information that we hold, and the nature of the processing that we undertake.
10.4 EU customer privacy terms:
To the extent Your Data comprises personal data of European Union citizens, the General Data Protection Regulation (EU) 2016/679 (GDPR) will apply to the processing of that personal data and the following provisions will apply:
(a) You remain the controller of the personal information You provide to us for processing. We will process personal data only on documented processing instructions from You and will not transfer personal data to a third country or other international organization, except where agreed between us.
(b) we will not engage another processor to process personal information You provide to us without Your prior consent. You acknowledge i) the Service allows processing connections to be added and when You request a connection this will provide Your consent, if required, to add a sub-processor and ii) the separate disclosure as below that we make to You of the sub-processors that we use being Microsoft Azure and Salesforce and note Your consent to the use of those sub-processors. Where we use (with Your consent) another processor to process personal information, we have appropriate arrangements in place with that processor to protect the personal information to the same standard that the personal information is protected under these terms and conditions.
(c) You may have an independent auditor audit our compliance with the privacy requirements under these terms and conditions, and we will provide reasonable assistance to such audits, provided that:
(i) You clearly identify the nature and purpose of the audit;
(ii) You conduct no more than one audit in each twelve-month period unless you have specific reason to believe that these privacy requirements are not being complied with;
(iii) audits may only be conducted during normal business hours in Auckland, New Zealand, and will be conducted in such a way as to minimize any disruption to the Cin7 business;
(iv) Your auditor must comply with all reasonable health and safety and/or security measures required by Us:
(v) You will bear all costs of such an audit; and
(vi) Your auditor will only have access to the data and systems necessary to conduct this audit, and such access will not extend to access to and/or inspection of Cin7 intellectual property or internal financial information.
(d) we shall cooperate as reasonably requested by You to enable You to comply with any exercise of rights by a data subject under Chapter III of the GDPR.
10.5 California customer privacy terms:
To the extent Your Data comprises personal information of natural persons who are resident in California, United States of America (a “Consumer”), the California Consumer Privacy Act of 2018 (CCPA) will apply to the processing of that personal information and the following provisions will apply:
(a) You remain the controller of the personal information You provide to us for processing. We will process personal information only on documented processing instructions from You, and we will not disclose or retain the personal information for any purpose other than for the specific purpose of performing the services under these Terms, or as permitted by the CCPA.
(b) we will not engage another service provider to process personal information You provide to Us without Your prior consent. You acknowledge the separate disclosure that we have made to You of the service providers that we use, and note Your consent to the use of those service providers. Where we use (with Your consent) another service provider to process personal information, we have appropriate arrangements in place with that service provider to protect the personal information to the same standard that the personal information is protected under these terms and conditions.
(c) we shall co-operate as reasonably requested by You to enable You to comply with any request by a Consumer for the deletion of that Consumer’s personal information, as permitted by the CCPA.
11. INTELLECTUAL PROPERTY
Except as expressly set out in this Agreement, nothing in this Agreement will confer upon a party any rights, interest or title in Intellectual Property Rights in the other party’s materials (including any modification to that material) existing at the date of this Agreement or which is developed independently of the other party’s materials. Without limiting the generality of the foregoing, Cin7 retains all right, title, and interest, including all Intellectual Property Rights, in the Services and any deliverables.
11.2 Your Data:
We have no Intellectual Property Rights in Your Data other than to hold and make it available for the purposes contemplated by these Terms or for which it was provided. By accepting these Terms, You are granting Cin7 a license and permission to use, copy, transmit, store, and back up Your Data to ensure Your access and use of the Services, and for any other purpose related to the provision of Services to You. Additionally, You acknowledge that by enabling third-party applications for use in conjunction with the Services, You are allowing Cin7 to provide access to Your Data to those third parties as required. Cin7 shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such third-party access.
You hereby grant to Cin7 a worldwide, irrevocable, perpetual, sublicensable, royalty-free right and license to use and exploit without restriction all feedback and suggestions provided by You and Your Account Users (collectively, “Feedback”) in connection with the operation and maintenance of the Services and/or Cin7’s business.
12. TERM AND TERMINATION
These Terms come into effect upon the commencement of Your Subscription Plan and continue in force unless and until terminated in accordance with this clause 12.
12.2 Termination for convenience:
If our quote to You (if any) does not specify a minimum term, either party may terminate these Terms and Your Cin7 Omni Account for convenience by giving written notice to the other party at least twenty (20) days before the end of a calendar month. These Terms and Your Cin7 Omni Account will then terminate at the expiry of that calendar month. Cin7 will not provide any refund for any prepaid Subscription Charges on termination. If You terminate these Terms for convenience pursuant to this clause 12.2, You are liable to pay all relevant Subscription Charges up to and including the end of the calendar month in which these Terms were terminated.
12.3 Minimum term
If our quote to You specifies a minimum term, these Terms will continue for the minimum term specified in the quote unless:
(a) we terminate these Terms by giving You at least forty (40) days’ written notice; or
(b) You terminate these Terms by giving us at least twenty (20) days’ written notice in which case You must pay us all relevant Subscription Charges up to and including the end of the minimum term. The parties agree that the purpose of the payment term in this clause 12.3(b) is to reflect and give effect to the minimum term arrangement and is not intended to be punitive.
12.4 Termination for breach:
If a Breach Event (as defined below) occurs, Cin7 may at its sole discretion and without notice to You, take any or all of the following actions:
(a) Terminate this Agreement and Your use of the Services;
(b) Suspend for any definite or indefinite period of time, Your use of the Services;
(c) Suspend or terminate access to all or any Data.
(d) Take any of the actions in sub-clauses (a), (b) and (c) of this clause 12.4 in respect of any or all other persons whom You have authorized to have access to Your information or Data.
A “Breach Event” occurs if:
(a) You breach any of these Terms and fail to remedy the breach within seven (7) days after receiving notice requiring You to do so;
(b) You breach any of these Terms where that breach is not capable of remedy;
(c) You are, become, or are deemed to be, insolvent or bankrupt;
(d) You make an assignment for the benefit of, or enter into or make any arrangement or composition with Your creditors;
(e) You go into receivership or have a receiver, trustee and manager (or either of them) (including a statutory manager) appointed in respect of all or any of Your property; or
(f) any resolution is passed, or any proceeding is commenced, for the winding up or liquidation of that other party (other than for the purposes of a solvent reconstruction)
12.5 Data access:
Your Data (including any personal information) will only be retained by Cin7 for up to sixty (60) days after the termination of Your Cin7 Omni Account (unless You request the deletion of Your Data earlier). We will provide reasonable access to You to retrieve and download Your Data during this time, provided that all Subscription Charges owing by You up to the date of termination are paid. This access is for the retrieval and download of Data only, You will receive no other Services after the termination date. All Data will be deleted sixty (60) days after the termination of Your Cin7 Omni Account.
12.6 Accrued Rights:
Termination of these Terms is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination. On termination of this Agreement, You will:
(a) remain liable for any accrued charges and amounts which become due for payment before or after termination; and
(b) immediately cease to use the Services.
Clauses 3, 4, 6, 7, 8, 9, 10, 11.1, 11.3, 12 and 13 survive the expiry or termination of these Terms. Following the termination of Your Subscription Plan, we reserve the right to delete all Your Data in the normal course of operation. You acknowledge and confirm that Your Data cannot be recovered once it is deleted and Cin7 will have no liability for any deleted Data.
13.1 Entire Agreement:
13.2 Rights of Third Parties:
A person who is not a party to these Terms has no right to benefit under or to enforce any term of these Terms.
13.3 Delays or Failures:
Neither party will be liable for any delay in meeting, or failure to meet, its obligations under this Agreement (other than the obligation to pay money) to the extent that such delay or failure is caused by any event outside its reasonable control (including, without limitation, any delay or failure caused by any act or omission to the other party).
13.4 No Assignment:
You may not assign or transfer any rights, duties or obligations to any other person except with the previous written consent of Cin7.
No failure or delay by any party in exercising any right, power or privilege under this Agreement will operate as a waiver, nor will any single or partial exercise preclude any other or further exercise or the exercise of any right, power or privilege under this Agreement. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.
If any provision of this Agreement is, or becomes, unenforceable, illegal or invalid for any reason the relevant provisions shall be deemed to be modified to the extent necessary to remedy such unenforceability, illegality or invalidity or if this is not possible then such provisions shall be severed from this Agreement, without affecting the enforceability, legality or validity of any other provision of this Agreement.
13.7 Governing Law and Jurisdiction:
These Terms shall be governed by and construed in accordance with the laws of the State of Delaware and any disputes arising from its interpretation shall be subject to the exclusive jurisdiction of the courts of the State of Delaware United States of America.
All notices given by a party under this Agreement must be in writing and delivered by e-mail. A notice sent by email is effective on transmission, provided that any communication received or deemed received after 5 p.m. or on a day which is not a business day is deemed not to have been received until the next business day. Notices to Cin7 must be sent to Cin7 Connect or to any other email address notified by email to You by Cin7. Notices to You will be sent to the email address which You provided when setting up Your access to the Service. Please notify us immediately of any change in Your email address. In the event that the email address You provide to Cin7 is invalid, or for any reason is not capable of delivering to You any notices required by this Terms, Cin7’s dispatch of the email containing such notice will nonetheless constitute effective notice.