Accordo Terms of Use

1 APPLICATION OF TERMS

1.1 These Terms apply to your use of the Website. By accessing and using the Website:

a you agree to these Terms; and

b where your access and use is on behalf of another person (e.g. a company), you confirm that you are authorised to, and do in fact, agree to these Terms on that person’s behalf and that, by agreeing to these Terms on that person’s behalf, that person is bound by these Terms.

1.2 If you do not agree to these Terms, you are not authorised to access and use the Website, and you must immediately stop
doing so.

2 CHANGES

2.1 We may change these Terms at any time by updating them on the Website. Unless stated otherwise, any change takes effect immediately. You are responsible for ensuring you are familiar with the latest Terms. By continuing to access and use the Website, you agree to be bound by the changed Terms.

2.2 We may change, suspend, discontinue, or restrict access to, the Website without notice or liability.

2.3 These Terms were last updated on 24 June 2019.

3 DEFINITIONS

In these Terms:

including and similar words do not imply any limit

Loss includes loss of profits, savings, revenue or data, and any other claim, damage, loss, liability and cost, including legal costs on a solicitor and own client basis

personal information means information about an identifiable, living person

Terms means these terms and conditions titled Website Terms of Use

Underlying System means any network, system, software, data or material that underlies or is connected to the Website

User ID means a unique name and/or password allocated to you to allow you to access certain parts of the Website

We, us or our means Accordo Group Limited (“Accordo”).

Website means www.accordo.com

You means you or, if clause 1.1b applies, both you and the other person on whose behalf you are acting.

4 YOUR OBLIGATIONS

4.1 You must provide true, current and complete information in your dealings with us (including when setting up an account), and must promptly update that information as required so that the information remains true, current and complete.

4.2 If you are given a User ID, you must keep your User ID secure and:

a not permit any other person to use your User ID, including not disclosing or providing it to any other person; and

b immediately notify us if you become aware of any disclosure or unauthorised use of your User ID, by contacting us via https://www.accordo.com/contact-us/.

4.3 You must:

a not act in a way, or use or introduce anything (including any virus, worm, Trojan horse, timebomb, keystroke logger, spyware or other similar feature) that in any way compromises, or may compromise, the Website or any Underlying System, or otherwise attempt to damage or interfere with the Website or any Underlying System; and

b unless with our agreement, access the Website via standard web browsers only and not by any other method. Other methods include scraping, deep-linking, harvesting, data mining, use of a robot or spider, automation, or any similar data gathering, extraction or monitoring method.

4.4 You must obtain our written permission to establish a link to our Website. If you wish to do so, contact us via
https://www.accordo.com/contact-us/

4.5 You indemnify us against all Loss we suffer or incur as a direct or indirect result of your failure to comply with these Terms, including any failure of a person who accesses and uses our Website by using your User ID.

5 INTELLECTUAL PROPERTY

We (and our licensors) own all proprietary and intellectual property rights in the Website (including all information, data, text, graphics, artwork, photographs, logos, icons, sound recordings, videos and look and feel), and the Underlying Systems.

6 DISCLAIMERS

6.1 To the extent permitted by law, we and our licensors have no liability or responsibility to you or any other person for any Loss in connection with:

a the Website being unavailable (in whole or in part) or performing slowly;

b any error in, or omission from, any information made
available through the Website;

c any exposure to viruses or other forms of interference which may damage your computer system or expose you to fraud when you access or use the Website. To avoid doubt, you are responsible for ensuring the process by which you access and use the Website protects you from this; and

e any site linked from the Website. Any link on the Website to other sites does not imply any endorsement, approval or recommendation of, or responsibility for, those sites or their contents, operations, products or operators.

6.2 We make no representation or warranty that the Website is appropriate or available for use in all countries or that the content satisfies the laws of all countries. You are responsible for ensuring that your access to and use of the Website is not illegal or prohibited, and for your own compliance with applicable local laws.

7 LIABILITY

7.1 To the maximum extent permitted by law:

a you access and use the Website at your own risk; and

b we are not liable or responsible to you or any other person for any Loss under or in connection with these Terms, the Website, or your access and use of (or inability to access or use) the Website. This exclusion applies regardless of whether our liability or responsibility arises in contract, tort (including negligence), equity, breach of statutory duty, or otherwise.

7.2 Except to the extent permitted by law, nothing in these Terms has the effect of contracting out of the New Zealand Consumer Guarantees Act 1993 or any other consumer protection law that cannot be excluded. To the extent our liability cannot be excluded but can be limited, our liability is limited to NZD100.

7.3 To the maximum extent permitted by law and only to the extent clauses 7.1 and 7.2 of these Terms do not apply, our total liability to you under or in connection with these Terms, or in connection with the Website, or your access and use of (orinability to access or use) the Website, must not exceed NZ$500.

8 PRIVACY POLICY

8.1 You can find our Privacy Policy at https://www.accordo.com/legal-cloudoptimizer-privacy/

9 SUSPENSION AND TERMINATION

9.1 Without prejudice to any other right or remedy available to us, if we consider that you have breached these Terms or we otherwise consider it appropriate, we may immediately, and without notice, suspend or terminate your access to the Website (or any part of it).

9.2 On suspension or termination, you must immediately cease using the Website and must not attempt to gain further access.

10 GENERAL

10.1 If we need to contact you, we may do so by email or by posting a notice on the Website. You agree that this satisfies all legal requirements in relation to written communications.

10.2 These Terms, and any dispute relating to these Terms or the Website, are governed by and must be interpreted in accordance with the laws of New Zealand. Each party submits to the non-exclusive jurisdiction of the Courts of New Zealand in relation to any dispute connected with these Terms or the Website.

10.3 For us to waive a right under these Terms, the waiver must be in writing.

10.4 Clauses which, by their nature, are intended to survive termination of these Terms, including clauses 4.5, 5, 6, 7, 10.1, continue in force.

10.5 If any part or provision of these Terms is or becomes illegal, unenforceable, or invalid, that part or provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity. If a modification is not possible, the part or provision must be treated for all purposes as severed from these Terms. The remainder of these Terms will be binding on you.

10.6 These Terms set out everything agreed by the parties relating to your use of the Website and supersede and cancel anything discussed, exchanged or agreed prior to you agreeing to these Terms. The parties have not relied on any representation, warranty or agreement relating to the Website that is not expressly set out in the Terms, and no such representation, warranty or agreement has any effect from the date you agreed to these Terms.

ACCORDO CLOUD OPTIMIZER TERMS OF USE

1 APPLICATION OF TERMS

1.1 These Terms apply to your use of the Service (as that term is defined below). By ticking the tick box as part of the registration process for the Service, setting up an account to use the Service and/or by accessing and using the Service:

a you agree to these Terms; and

b where your access and use is on behalf of another person (e.g. a company), you confirm that you are authorised to, and do in fact, agree to these Terms on that person’s behalf and that, by agreeing to these Terms on that person’s behalf, that person is bound by these Terms.

1.2 If the processing of Data (as defined below) is governed by the GDPR (as defined below), the additional terms in the Data Processing Addendum (as defined below) also form part of these Terms.

1.3 If you do not agree to these Terms, you are not authorised to access and use the Service, and you must immediately stop doing so.

2 CHANGES

2.1 We may change these Terms at any time. When we change these Terms, we will revise the last updated date in clause 2.2. If there are material changes to these Terms, we will notify you either by notifying you of the change by email or by posting a notice on the Website. You are responsible for ensuring you are familiar with the latest Terms. By continuing to access and use the Service from the date on which the Terms are changed, you agree to be bound by the changed Terms.

2.2 These Terms were last updated on 24 June 2019.

3 INTERPRETATION

In these Terms:

Billing Period means a month commencing:

▲ if you access and use the Service under a Trial Period, at the end of the Trial Period and on each monthly anniversary of the end of the Trial Period; or

▲ if you do not access and use the Service under a Trial Period, on the Start Date and on each monthly anniversary of the Start Date.

Client means a client of yours with 1 or more Subscriptions managed by you using the Service.

Confidential Information means any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, the provision and use of the Service. Our Confidential Information includes Intellectual Property owned by us (or our licensors). Your Confidential Information includes the Data.

Data means all data, content, and information (including personal information) owned, held, used or created by you or on your behalf that is stored using, inputted into, or accessed by the Service.

Data Processing Addendum means the data processing addendum attached to these Terms.

Fees means the applicable fees set out on our pricing page which is displayed once you sign up but before you put in your payment details, or as agreed otherwise in writing between you and us, as may be updated from time to time in accordance with clause 9.4. The Fees for each Billing Period will generally be calculated as the greater of:
▲ a monthly minimum or fixed fee; and

▲ a per User fee based on the Monthly Active Users in the previous Billing Period.

Force Majeure means an event that is beyond the reasonable control of a party, excluding:

▲ an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care; or

▲ a lack of funds for any reason.

GDPR means the General Data Protection Regulation of the European Union.

including and similar words do not imply any limit.

Intellectual Property Rights includes copyright and all rights anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trade marks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.

Monthly Active Users or MAU means, for any Billing Period, the maximum number of Users at any point in time during that Billing Period.

Objectionable includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.

a party includes that party’s permitted assigns.

a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity.

personal information means information about an identifiable, living person.

personnel includes officers, employees, contractors and agents, but a reference to your personnel does not include us.

Service means our Cloud Optimizer service having the functionality described on the Website, as the Website is updated from time to time.

Subscription means a paid subscription to a cloud service that is within the scope of the Service’s functionality as described on the Website.

Start Date means the date that you first register for the Service.

Terms means these terms titled Cloud Optimizer terms of use including, if the processing of Data is governed by the GDPR, the Data Processing Addendum.

Trial Period means the trial period described on the Website or otherwise agreed with you, including any extension that we make available to you.

Underlying Systems means the IT solutions, systems and networks (including software and hardware) used to provide the Service, including any third party solutions, systems and networks.

User means an active user in your Client’s environment to whom 1 or more Subscriptions purchased through or managed by you is assigned. A user that uses free cloud service subscriptions only (e.g. Power BI free) is not regarded as a User.

We, us or our means the service provider named in clause 15.1.

Website means the internet site at www.accordo.com, or such other site notified to you by us, as the Website is updated from time to time.

Year means a 12-month period starting on the Start Date or the anniversary of that date.

You or your means you or, if clause 1.1b applies, both you and the other person on whose behalf you are acting.

Words in the singular include the plural and vice versa.

A reference to a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them.

4 PROVISION OF THE SERVICE

4.1 We must use reasonable efforts to provide the Service:

a in accordance with these Terms and applicable law;

b exercising reasonable care, skill and diligence; and

c using suitably skilled, experienced and qualified personnel.

4.2 Our provision of the Service to you is non-exclusive. Nothing in these Terms prevents us from providing the Service to any other person.

4.3 Subject to clause 4.4, we must use reasonable efforts to ensure the Service is on a 24/7 basis. However, it is possible that on occasion the Service may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure.

4.4 Through the use of web services and APIs, the Service interoperates with a range of third party service features. We do not make any warranty or representation on the availability, performance or accuracy of those features. Without limiting the previous sentence, if a third party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, we may cease to make available that feature to you. To avoid doubt, if we exercise our right to cease the availability of a third party feature, you are not entitled to any refund, discount or other compensation.

5 TRIAL PERIOD

5.1 Trial period: Where you have elected to access and use the Service for a Trial Period, then these Terms apply except to the extent varied in this clause 5.

5.2 Fees:

a We will provide the Service to you during the Trial Period at no charge.

b You will be required to submit your credit card details to our payment processor (currently Stripe) when you sign up to the Trial Period. We will treat this as a request to subscribe to the Service at the end of the Trial Period, unless you cancel your subscription to the Service in accordance with clause 5.2b.

c If you do not wish to subscribe to the Service at the End of the Trial Period, you must terminate your subscription to the Service in accordance with clause 14.2 before the end of the Trial Period. If you do not cancel your subscription in accordance with clause 14.2 before the end of the Trial Period:

i you are deemed to have agreed to subscribe to the paid version of the Service; and

ii we will instruct our payment processor to charge the Fees for the first Billing Period to your credit card.

5.3 As is basis: The Service is provided to you during the Trial Period on an as is basis, and, despite any other provision in these Terms, all conditions, warranties, guarantees and indemnities in relation to the Service are excluded by us during the Trial Period to the fullest extent permitted by law.

6 YOUR OBLIGATIONS

6.1 You and your personnel must:

a use the Service in accordance with these Terms solely for:

i your own business purposes (which, to avoid doubt, includes the provision of your services to your Clients); and

ii lawful purposes; and

b not resell or make available the Service to any third party, or otherwise commercially exploit the Service without Accordo’s permission.

6.2 When accessing the Service, you and your personnel must:

a not impersonate another person or misrepresent authorisation to act on behalf of others or us;

b correctly identify the sender of all electronic transmissions;

c not attempt to undermine the security or integrity of the Underlying Systems;

d not use, or misuse, the Service in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the Service;

e not attempt to view, access or copy any material or data other than:

i that which you are authorised to access; and

ii to the extent necessary for you to use the Service in accordance with these Terms; and

f neither use the Service in a manner, nor transmit, input or store any Data, that breaches any third party right (including Intellectual Property Rights and privacy rights) or is Objectionable, incorrect or misleading.

6.3 A breach of any of these Terms by your personnel is deemed to be a breach of these Terms by you.

6.4 You are responsible for procuring all licences, authorisations and consents required for you and your personnel to use the Service, including to use, store and input Data into, and process and distribute Data through, the Service.

7 CLOUD SERVICE ACCOUNT ACCESS

7.1 You may, as part of the Service, authorise the Service to access your and your Clients’ user accounts for Subscriptions that you designate.

7.2 To allow the Service to access your Subscription user accounts, you must provide the Service with your Subscription login and password details and any other information required to access your Subscription account (Subscription Account Information).

7.3 You must ensure that you are entitled to provide us with the rights and permissions set out in this clause 7, including that the provision of those rights and permissions is in accordance with any terms and conditions that govern the Subscription.

7.4 On providing the Service with your Subscription Account Information, you:

a warrant that your Subscription Account Information is complete, accurate and current and you agree to maintain and promptly update that information to ensure it is kept current at all times; and

b authorise the Service to access your Subscription user account using your Subscription Account Information and to access and retrieve any data or information held in your Subscription user account (Subscription Data).

7.5 You acknowledge and agree that in accessing and retrieving information from your Subscription user account, we are acting as your agent.

7.6 You may disable the Services’ access to a Subscription user account at any time by calling our Customer Support Team.

a You acknowledge that, if you do not authorise the Service to access a Subscription account relevant to the Service features you are seeking to use, or if you disable that access, this may mean that you cannot use some or all of the features of the Service.

8 DATA

8.1 You acknowledge that we (including our personnel) may use the Data to perform our obligations under these Terms.

8.2 You acknowledge that we may:

a generate anonymised and aggregated statistical and analytical data from the Data and/or about your use of the Service (Analytical Data);

b use Analytical Data during and following expiration or termination of these Terms for our internal research, analytical and product development purposes, and to conduct statistical analysis and identify trends and insights; and

c supply this Analytical Data to third parties.

8.3 You acknowledge and agree that to the extent Data contains personal information, in collecting, holding and processing that information through the Service, we are acting as your agent for the purposes of any applicable privacy law and as a processor for the purposes of the GDPR. You must obtain all necessary consents from the relevant individual to enable us to collect, use, hold and process that information in accordance with these Terms.

8.4 While we will take standard industry measures to back up all Data stored using the Service, you agree to keep a separate back-up copy of all Data uploaded by you onto the Service.

8.5 You agree that we may store Data (including any personal information) in secure servers in the United States and may access that Data (including any personal information) in the United States and New Zealand from time to time.

8.6 You indemnify us against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by our solicitors) and loss of any kind arising from any actual or alleged claim by a third party that any Data infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that the Data
is Objectionable, incorrect or misleading.

9 FEES

9.1 You must pay us the Fees.

9.2 The Fees exclude sales, value added or goods and services taxes (or equivalent tax payable under any applicable law), which you must pay on taxable supplies.

9.3 We will instruct our payment processor to charge the Fees for each Billing Period to your credit card in advance of the Billing Period. If you do not wish to continue your subscription to the Service for any Billing Period, you must terminate your subscription to the Service in accordance with clause 14.2 before the end of the preceding Billing Period.

9.4 We may increase the Fees by giving at least 30 days’ notice. The increase will take effect at the beginning of the next Billing Period. If you do not wish to pay the increased Fees, you may terminate your subscription to the Service before the beginning of the Billing Period in which the increase takes effect. If you do not terminate your
subscription to the Service in accordance with this clause, you are deemed to have accepted the increased Fees.

10 INTELLECTUAL PROPERTY

10.1 Subject to clause 10.2, title to, and all Intellectual Property Rights in, the Service, the Website, the Analytical Data and all Underlying Systems is and remains our property (and the property of our licensors). You must not dispute that ownership.

10.2 Title to, and all Intellectual Property Rights in, the Data (as between the parties) remains your property. You grant us a worldwide, non-exclusive, fully paid up, transferable, perpetual and irrevocable licence to use, store, copy, modify, make available and communicate the Data for any purpose in connection with the exercise of our rights and performance of our obligations in accordance with these Terms.

10.3 If you provide us with ideas, comments or suggestions relating to the Service or Underlying Systems (together feedback):

aa all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by us; and

b we may use or disclose the feedback for any purpose.

10.4 You acknowledge that the Service may link to third party websites or feeds that are connected or relevant to the Service. Any link from the Service does not imply that we endorse, approve or recommend, or have responsibility for, those websites or feeds or their content or operators. To the maximum extent permitted by law, we exclude all responsibility or liability for those websites or feeds.

11 CONFIDENTIALITY

11.1 Each party must, unless it has the prior written consent of the other party:

a keep confidential at all times the Confidential Information of the other party;

b effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorised access or use; and

c disclose the other party’s Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s Confidential Information is aware of, and complies with, clauses 11.1a and 11.1b.

11.2 The obligation of confidentiality in clause 11.1a does not apply to any disclosure or use of Confidential Information:

a for the purpose of performing a party’s obligations, or exercising a party’s rights, under these Terms;

b required by law (including under the rules of any stock exchange);

c which is publicly available through no fault of the recipient of the Confidential Information or its personnel;

d which was rightfully received by a party from a third party without restriction and without breach of any obligation of confidentiality; or

e by us if required as part of a bona fide sale of our business (assets or shares, whether in whole or in part) to a third party, provided that we enter into a confidentiality agreement with the third party on terms no less restrictive than this clause 11.

12 WARRANTIES

12.1 Each party warrants that it has full power and authority to enter into, and perform its obligations, under these Terms.

12.2 TO THE MAXIMUM EXTENT PERMITTED BY LAW:

a OUR WARRANTIES ARE LIMITED TO THOSE SET OUT IN THESE TERMS, AND ALL OTHER CONDITIONS, GUARANTEES OR WARRANTIES WHETHER EXPRESSED OR IMPLIED BY STATUTE OR OTHERWISE (INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PURPOSE) ARE EXPRESSLY EXCLUDED; AND

b WE MAKE NO REPRESENTATION CONCERNING THE QUALITY OF THE SERVICE AND DO NOT PROMISE THAT THE SERVICE WILL:

I MEET YOUR REQUIREMENTS OR BE SUITABLE FOR A PARTICULAR PURPOSE; OR

II BE SECURE, FREE OF VIRUSES OR OTHER HARMFUL CODE, UNINTERRUPTED OR ERROR FREE.

12.3 You agree and represent that you are acquiring the Service, and accepting these Terms, for the purpose of a business and that any applicable consumer protection legislation does not apply to the supply of the Service or these Terms.

12.4 Where legislation or rule of law implies into these Terms a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in these Terms. However, our liability for any breach of that condition or warranty is limited, at our option, to:

a supplying the Service again; and/or

b paying the costs of having the Service supplied again.

13 LIABILITY

13.1 TO THE MAXIMUM EXTENT PERMITTED BY LAW, OUR MAXIMUM AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THESE TERMS OR RELATING TO THE SERVICE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY OR OTHERWISE, MUST NOT IN ANY YEAR EXCEED AN AMOUNT EQUAL TO THE FEES (IF ANY) PAID BY YOU RELATING TO THE SERVICE IN THE PREVIOUS YEAR (WHICH IN THE FIRST YEAR IS DEEMED TO BE THE TOTAL FEES (IF ANY) PAID BY YOU FROM THE START DATE TO THE DATE OF THE FIRST EVENT GIVING RISE TO LIABILITY).

13.2 NEITHER PARTY IS LIABLE TO THE OTHER UNDER OR IN CONNECTION WITH THESE TERMS OR THE SERVICE FOR ANY:

a LOSS OF PROFIT, REVENUE, SAVINGS, BUSINESS, USE, DATA (INCLUDING DATA), AND/OR GOODWILL; OR

b CONSEQUENTIAL, INDIRECT, INCIDENTAL OR SPECIAL DAMAGE OR LOSS OF ANY KIND.

13.3 Clauses 13.1 and 13.2 do not apply to limit our liability under or in connection with these Terms for:

a personal injury or death;

b fraud or wilful misconduct; or

c a breach of clause 11.

13.4 Clause 13.2 does not apply to limit your liability:

a under the indemnity in clause 8.6; or

b for those matters stated in clause 13.3a to 13.3c.

13.5 Neither party will be responsible, liable, or held to be in breach of these Terms for any failure to perform its obligations under these Terms or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under these Terms, or by the negligence or misconduct of the other party or its personnel.

13.6 Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with these Terms or the Service.

14 TERM, TERMINATION AND SUSPENSION

14.1 Unless terminated under this clause 14, these Terms and your right to access and use the Service:

a starts on the Start Date; and

b continues until a party gives notice that these Terms and your right to access and use the Service will terminate:

i in the case of a monthly subscription plan, at the end of the current Billing Period, and

ii in the case of an annual subscription plan, at the end of the current annual subscription period

14.2 If you register for a monthly subscription plan, you may terminate your subscription to the Service at any time by calling our Customer Support Team. Any such termination will take effect at the end of the then-current Billing Period. If you register for an annual subscription plan, you may terminate your subscription to the Service:

a during any Trial Period by phone to our Customer Support Team. Any such termination will take effect at the end of the Trial Period.

b after the Trial Period, by giving at least 30 days’ notice by phone to our Customer Support Team prior to the annual anniversary of the end of your Trial Period. Any such termination will take effect at the end of the then-current annual subscription period.

14.3 Either party may, by notice to the other party, immediately terminate these Terms and your right to access and use the Service if the other party:

a breaches any material provision of these Terms and the breach is not:

i remedied within 10 days of the receipt of a notice from the first party requiring it to remedy the breach; or

ii capable of being remedied; or

b becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason.

14.4 Termination of these Terms does not affect either party’s rights and obligations that accrued before that termination.

14.5 On termination of these Terms, we may delete or anonymise the Data. If we do this, the Data cannot be recovered. You are responsible for keeping copies of any Data that you may wish to retain, and we are not liable for any loss or damage that result from the deletion or anonymisation of the Data following termination.

14.6 No compensation is payable by us to you as a result of termination of these Terms for whatever reason, and you will not be entitled to a refund of any Fees that you have already paid.

14.7 Without limiting any other right or remedy available to us, we may restrict or suspend your access to and use of the Service and/or delete, edit or remove the relevant Data if:

a any credit card transaction for payment of the Fees is declined, reversed or charged back to us; or

i we consider that you or any of your personnel have:

ii undermined, or attempted to undermine, the security or integrity of the Service or any Underlying Systems;

iii used, or attempted to use, the Service:

▲ for improper purposes; or

▲ in a manner, other than for normal operational purposes, that materially reduces the operational performance of the Service;

iv transmitted, inputted or stored any Data that breaches or may breach these Terms or any third party right (including Intellectual Property Rights and privacy rights), or that is or may be Objectionable, incorrect or misleading; or

v otherwise materially breached these Terms.

15 GENERAL

15.1 The provider of the Service is Accordo Group Limited, a New Zealand company, company number 959410.

15.2 Neither party is liable to the other for any failure to perform its obligations under these Terms to the extent caused by Force Majeure.

15.3 No person other than you and us has any right to a benefit under, or to enforce, these Terms.

15.4 For us to waive a right under these Terms, that waiver must be in writing and signed by us.

15.5 Subject to clause 8.2c, we are your independent contractor, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under these Terms.

15.6 If we need to contact you, we may do so by email or by posting a notice on the Website. You agree that this satisfies all legal requirements in relation to written communications.

15.7 These Terms, and any dispute relating to these Terms or the Service, are governed by and must be interpreted in accordance with the laws of New Zealand. Each party submits to the non-exclusive jurisdiction of the Courts of New Zealand in relation to any dispute connected with these Terms or the Service.

15.8 Clauses which, by their nature, are intended to survive termination of these Terms, including clauses 8.6, 10, 11, 13, 14.3 to 14.5 and 15.7, continue in force.

15.9 If any part or provision of these Terms is or becomes illegal, unenforceable, or invalid, that part or provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity. If a modification is not possible, the part or provision must be treated for all purposes as severed from these Terms. The remainder of these Terms will be binding on you.

15.10 Subject to clauses 2.1 and 9.4, any variation to these Terms must be in writing and signed by both parties.

15.11 These Terms set out everything agreed by the parties relating to the Service, and supersede and cancel anything discussed, exchanged or agreed prior to the Start Date. The parties have not relied on any representation, warranty or agreement relating to the Service that is not expressly set out in these Terms, and no such representation, warranty or agreement has any effect from the Start Date.

15.12 You may not assign, novate, subcontract or transfer any right or obligation under these Terms without our prior written consent, that consent not to be unreasonably withheld. You remain liable for your obligations under these Terms despite any approved assignment, subcontracting or transfer.

DATA PROCESSING ADDENDUM

1 APPLICATION OF THIS ADDENDUM

1.1 This data processing addendum (Addendum) applies if the Processing (as defined below) of Data (as defined in clause 3 of the Terms) is governed by the GDPR (as defined below).

1.2 If this Addendum applies, this Addendum forms part of the Terms and sets out the parties’ agreement in relation to the processing of Personal Data in accordance with the requirements of European Union data protection laws and regulations.

1.3 We are located in New Zealand, which the European Commission has determined ensures adequate protection within the meaning of Article 45 of the GDPR.

2 INTERPRETATION

2.1 Unless the context requires otherwise:

a capitalised terms used, but not defined, in this Addendum will have the meanings given to them in the GDPR (or, if not defined in the GDPR, the Terms);

b the rules of interpretation set out in the Terms apply to this Addendum; and

c references to clauses are references to the clauses in this Addendum.

2.2 In this Addendum:

Applicable Data Protection Laws means EU Data Protection Laws and any applicable data protection or privacy laws of any other country

EEA means the European Economic Area

EU Data Protection Laws means all laws and regulations, including laws and regulations of the European Union, the EEA and their member states and (if the United Kingdom ceases to be a member state) the United Kingdom, that apply to the Processing of Data under the Terms, including (where applicable) the GDPR

GDPR means the European Union General Data Protection Regulation 2016/679

Instruction means the instructions set out in clause 3.3 or agreed under clause 3.4

Personal Data means all Data which is personal data, personally identifiable information or personal information under Applicable Data Protection Laws (as applicable under those laws)

Processing means any operation or set of operations which is performed upon Personal Data, whether or not by automated means, such as collection, recording, organisation, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction. Process has a consistent meaning

Sub-Processor means any person appointed by us or on our behalf to Process Personal Data on your behalf in connection with the Terms

2.3 If there is any conflict between any of the following, they will have precedence in the descending order of priority set out below:

a this Addendum; and

b the remainder of the Terms.

3 PROCESSING OF PERSONAL DATA

3.1 With respect to the Processing of Personal Data under the Terms:

a you act as the Data Controller;

b we act as the Data Processor; and

c subject to clause 6, we may engage the Sub-Processors listed in Schedule 2.

3.2 We will comply with all Applicable Data Protection Laws that apply to our Processing of Personal Data on your behalf, including all EU Data Protection Laws that apply to Data Processors.

3.3 You must, when using the Service, comply with all Applicable Data Protection Laws that apply to your Processing of Personal Data, including all EU Data Protection Laws that apply to Data Controllers.

3.4 You instruct us to Process Personal Data and in particular, subject to clause 6, transfer Personal Data to any country or territory:

a as reasonably necessary to provide the Service in accordance with the Terms;

b as initiated through the use of the Service by you, your personnel and other end users you allow to use the Service; and

c to comply with any further instruction from you (including by email or through our support channels) that is consistent with the Terms and this Addendum.

3.5 This Addendum and the Terms are your complete and final instructions for the Processing of Personal Data as at the time this Addendum takes effect. Any additional or alternate instructions must be agreed between us and you separately in writing.

3.6 We will not Process Personal Data other than on your Instructions unless required by any law to which we are subject, in which case we will to the extent permitted by applicable law inform you of that legal requirement before we Process that Personal Data.

3.7 As required by article 28(3) of the GDPR (and, if applicable, equivalent requirements of other Applicable Data Protection Laws), the nature and purpose of the Processing, the types of Personal Data and categories of Data Subjects Processed under this Addendum are set out in Schedule 1. We may amend Schedule 1 from time to time on written notice to you as we reasonably consider necessary to meet the requirements of the GDPR (and applicable equivalent requirements of other Applicable Data Protection Laws).

3.8 The duration of Processing is limited to the duration of the Terms. Our obligations in relation to Processing will continue until the Personal Data has been properly deleted or returned to you in accordance with clause 11 of this Addendum.

3.9 You are solely responsible for ensuring that your Instructions comply with Applicable Data Protection Laws. It is also your responsibility to enter into data processing agreements with other relevant Data Controllers in order to allow us and our Sub-Processors to Process Personal Data in accordance with this Addendum.

3.10 If, in our reasonable opinion, an Instruction infringes Applicable Data Protection Laws, we will notify you as soon as reasonably practicable.

4 DATA SUBJECT REQUESTS

4.1 To the extent permitted by law, we will notify you promptly if we receive a request from a Data Subject to exercise the Data Subject’s rights under Applicable Data Protection Laws relating to any Personal Data (Data Subject Request).

4.2 Taking into account the nature of the Processing, we will assist you by implementing appropriate technical and organisational measures, to the extent possible, to fulfil your obligation to respond to a Data Subject Request under Applicable Data Protection Laws.

4.3 To the extent you do not have the ability to address a Data Subject Request, we will, on your written request and at your cost, provide reasonable assistance in accordance with Applicable Data Protection Laws to facilitate that Data Subject Request. You will reimburse us for the costs arising from this assistance.

4.4 We will not respond to a Data Subject Request except on your written request or if required by applicable law.

5 OUR PERSONNEL

We will:

a take reasonable steps to ensure the reliability of any of our personnel engaged in the Processing of Personal Data;

b ensure that access to Personal Data is limited to our personnel who require that access as strictly necessary for the purposes of exercising our rights and performing our obligations under the Terms;

c ensure that our personnel engaged in Processing Personal Data are subject to confidentiality undertakings or professional or statutory obligations of confidentiality; and

d ensure that our personnel engaged in Processing Personal Data are informed of the confidential nature of the Personal Data and receive appropriate training on their responsibilities.

6 SUBPROCESSESORS

6.1 You acknowledge and agree that we may engage third party Sub-Processors in connection with the provision of the Service.

6.2 We have entered into (and will, for any new Sub-Processor, enter into) written agreements with each Sub-Processor containing data protection obligations which offer at least the same level of protection for Personal Data as set out in this Addendum and that meet the requirements of Article 28(3) of the GDPR, as applicable to the nature of the services provided by that Sub-Processor.

6.3 You may request copies of our written agreements with Sub-Processors (which may be redacted to remove confidential information not relevant to this Addendum).

6.4 A list of current Sub-Processors for the Services is set out in Schedule 2. We may update the list of Sub-Processors from time to time.

6.5 We may engage Sub-Processors as needed to serve as an Emergency Replacement to maintain and support the Services. Emergency Replacement means a sudden replacement of a Sub-Processor where a change is outside our reasonable control. In this case, we will inform you of the replacement Sub-Processor as soon as reasonably practicable.

6.6 If you object to any new Sub-Processor, you may, despite anything to the contrary in the Terms, terminate these Terms and your right to access and use the Service without penalty on written notice, provided (in the case of a new Sub-Processor notified under clause 6.4) your notice of termination is received by us within 30 days of our notice within these Terms of Use of the new Sub-Processor. If you do not terminate these Terms and your right to access and use the Service in accordance with this clause, you are deemed to have agreed to the new Sub-Processor.

6.7 We are liable for the acts and omissions of our Sub-Processors to the same extent we would be liable if performing the services of each Sub-Processor directly under the terms of this Addendum, except as otherwise set out in this Addendum.

7 SECURITY

We will maintain technical and organisational measures to protect the confidentiality, integrity and security of Personal Data (including protection against unauthorised or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorised disclosure of, or access to, Personal Data), and to manage data security incidents affecting Personal Data, in accordance with Applicable Data Protection Laws.

8 SECURITY BREACH MANAGEMENT

8.1 We will comply with all applicable laws requiring notification to you of any accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data Processed by us or our Sub-Processors of which we become aware (Breach Incident).

8.2 We will make reasonable efforts to identify the cause of that Breach Incident, notify you within a timely manner to allow you to meet your obligations to report a Breach Incident, and take steps we consider necessary and reasonable to remediate the cause of the Breach Incident, to the extent remediation is within our reasonable control.

9 AUDIT AND COMPLIANCE

Upon your written request, we will, at your cost, submit to your audits and inspections, and provide you all information necessary, to demonstrate that both you and we are complying with our respective obligations under Applicable Data Protection Laws (including our respective obligations under Article 28 of the GDPR).

10 DATA PROTECTION IMPACT ASSESSMENT

Upon your written request, we will, at your cost, provide you with reasonable assistance needed to fulfil your obligation under the GDPR to carry out a data protection impact assessment relating to your use of the Service, to the extent you do not otherwise have access to the relevant information.

11 RETURN AND DELETION OF PERSONAL DATA

11.1 Subject to clauses 11.2 and 11.3, following termination of the Terms we will delete all Personal Data within a reasonable period from termination of the Terms.

11.2 Subject to clause 11.3, you may submit a written request to us within 10 working days of the termination of the Terms requiring us, within 20 working days of your written request, to:

a return a complete copy of all Personal Data by secure file transfer in a common format; and

b delete all other copies of Personal Data Processed by us or any Sub-Processor.

11.3 We, or each Sub-Processor, may retain Personal Data to the extent that it is required by applicable laws, provided that we ensure the confidentiality of all such Personal Data and ensure that such Data is only processed as necessary for the purposes required under applicable laws requiring its Processing and for no other purpose.

11.4 If we cannot delete all Personal Data due to technical reasons, we will inform you as soon as reasonably practicable and will take reasonably necessary steps to:

a come as close as possible to a complete and permanent deletion of the Personal Data;

b fully and effectively anonymise the remaining data; and

c make the remaining Personal Data which is not deleted or effectively anonymised unavailable for future Processing.

12 CHANGES IN DATA PROTECTION LAWS

12.1 We may from time to time, make any variations to this Addendum, which we consider (acting reasonably) are required as a result of any change in, or decision of a competent authority under, Applicable Data Protection Law, to allow transfers and Processing of Personal Data to continue without breach of Applicable Data Protection Law.

12.2 If you object to any variation under clause 12.1, you may, despite anything to the contrary in the Terms, terminate these Terms and your right to access and use the Service without penalty on written notice, provided your notice of termination is received by us within 30 days of our change of the Terms. If you do not terminate these Terms and your right to access and use the Service in accordance with this clause, you are deemed to have agreed to the variation.

13 LIMITATION OF LIABILITY

The liability of each party to the other party under or in connection with this Addendum is subject to the limitations and exclusions set out in the Terms, and any reference in the Terms to the liability of a party means the aggregate liability of that party under the Terms and this Addendum together.

14 GENERAL

If any provision of this Addendum is, or becomes unenforceable, illegal or invalid for any reason, the relevant provision is deemed to be varied to the extent necessary to remedy the unenforceability, illegality or invalidity. If variation is not possible, the provision must be treated as severed from this Addendum without affecting any other provisions of this Addendum.

SCHEDULE 1

DETAILS OF PROCESSING

Nature and Purpose of Processing

We will Process Personal Data as necessary to provide the Service in accordance with the Terms, as further specified in our online documentation relating to the Services, and as further instructed by you and your personnel and other end users you allow to use the Service through the use of the Service.

Duration of Processing

Subject to clause 11 of this Addendum, we will Process Personal Data for the duration of the Terms, unless otherwise agreed upon in writing.

Categories of Data Subjects

You may submit Personal Data to the Service, the extent of which is determined and controlled by you in your sole discretion, and which may include, but is not limited to, Personal Data relating to the following categories of data subjects:

IT managers, purchasing managers, account managers, and other contact persons at your customers and potential customers

Type of Data

You may submit Personal Data to the Service, the extent of which is determined and controlled by you in your sole discretion, and which may include, but is not limited to, the following categories of personal data:

Names, job titles, email addresses, addresses, phone numbers, log of conversations

SCHEDULE 2

LIST OF SUB-PROCESSORS AS AT June 28, 2019

Third party / service vendor Purpose Location of subprocessor Policy pages / other relevant information

Accordo Group USA Inc hosting USA Privacy Shield certified

Microsoft Azure hosting USA https://www.microsoft.com/en-us/trustcenter/privacy/default.aspx

Privacy Shield certified

AWS hosting USA https://aws.amazon.com/compliance/data-privacy-faq/

Privacy Shield certified

Microsoft Office 365 email and office applications USA https://www.microsoft.com/en-us/trustcenter/privacy/default.aspx

Privacy Shield certified

Segment Routing event traffic USA https://segment.com/product/gdpr/

Privacy Shield certified

Mixpanel Handling event traffic, combining event data, analytics USA https://mixpanel.com/legal/privacy-overview/

Privacy Shield certified

Auth0 Authentication provider USA https://auth0.com/security/#certifications

Privacy Shield certified

PureCloud Telecommunications provider USA https://help.mypurecloud.com/articles/purecloud-privacy-policy/

Privacy Shield certified

Sentry.io Error capture and logging USA https://sentry.io/security/#privacy-shield

Privacy Shield certified

Intercom Chat tool for users to engage with Accordo USA https://www.intercom.com/terms-and-policies#eu-us

Privacy Shield certified

Stripe Payment gateway USA https://stripe.com/privacy-shield-policy

Privacy Shield certified