Sinc Terms of Service

These Terms of Service (the “Agreement”) is entered into, and effective as of the day you “AGREE” (the “Effective Date”), by and between SINC LIMITED, a New Zealand limited company (hereinafter “Company”) and you or the company or entity you represent (“Customer” OR “You”)

PLEASE READ ALL OF THE FOLLOWING TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE USING THE SERVICES (DEFINED BELOW). THIS AGREEMENT IS A LEGALLY BINDING CONTRACT BETWEEN YOU AND COMPANY AND SETS FORTH THE TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE SOFTWARE SERVICES. BY CLICKING “I AGREE” OR USING THE SERVICES, YOU ACCEPT AND AGREE TO BE BOUND BY AND ABIDE BY THESE TERMS AND CONDITIONS.

ANY CHANGES, ADDITIONS, OR DELETIONS BY YOU TO THESE TERMS AND CONDITIONS WILL NOT BE ACCEPTED BY COMPANY AND WILL NOT BE A PART OF THIS AGREEMENT.

COMPANY HAS COMPLETE DISCRETION TO UPDATE AND CHANGE THE AGREEMENT FROM TIME TO TIME AND TO CHANGE THE SCOPE OF FEATURES OF THE SOFTWARE SERVICES FROM TIME TO TIME. COMPANY MAY MAKE SUCH CHANGES WITHOUT NOTICE. IF YOU CONTINUE TO USE THE SERVICES AFTER ANY SUCH CHANGES, WITH OR WITHOUT NOTICE, YOU WILL BE CONSIDERED TO HAVE CONSENTED AND AGREED TO THEM.

Introduction

Company has agreed to provide, and Customer has agreed to take and pay for, the Services on the following terms and conditions.

It Is Agreed

1. Interpretation

1.1 In this Agreement:

Access Account means the unique user account and password assigned to You when you register for access to either Complimentary Services or the Premium Services through the Company’s website or the Company’s mobile application platform;

Commencement Date means the date on which Customer is provided with an Access Account;

Complimentary Services means the complimentary services provided by Company to Customer under this Agreement that allow access to the Complimentary Software via the Website or the mobile applications available from Google Play Store, the Apple App Store, and other mobile application acquisition platforms as designated by Company from time to time;

Customer Data means any data inputted by Customer or by Company on behalf of Customer for the purpose of using the Premium Services or facilitating Customer’s use of the Premium Services;

Derivaties means (i) copyrightable or copyrighted material, any translation, abridgment, revision or other form in which an existing work may be recast, transformed, or adapted; (ii) for patentable or patented material, any improvement thereon; (iii) for material which is protected by trade secret, any new material derived from such existing trade secret material, including new material which may be protected by copyright, patent, or trade secret; and (iv) results of any research, tests, or analysis of a Party’s Confidential Information, or intellectual proprietary property;

Documentation means the documentation (if any) made available to Customer by Company which sets out a description of the Services and the user instructions for the Services;

Force Majeure Event means an event, or a series of related events, that is outside the reasonable control of the party affected (including but not limited to failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law or governmental regulatory actions, disasters, explosions, fires, floods, riots, terrorist attacks, and wars);

Improvements mean any and all improvements, modifications, customizations, enhancements, fixes, updates or developments in or to the Premium Services or the Software;

Intellectual Property Rights means any patent, trade mark, trade names, service mark, copyright, moral right, right in a design, know-how and any other intellectual property rights, whether registered, in the course of being registered or unregistered and any analogous rights worldwide;

Software means the online software application which encapsulates an online business management enterprise system described at sinc.business;

Subscription Fee means the subscription fee payable by Customer to Company on a recurring basis for Customer’s access to and use of the Premium Services;

Premium Services means the Premium Services provided by Company to Customer under this Agreement that allow access to the Software via the Website or the mobile applications available from Google Play Store, the Apple App Store, and other mobile application acquisition platforms as designated by Company from time to time.; and

Website means users.sinc.business;

2. Access and Use

2.1:

With effect from the Commencement Date, Company grants to Customer a non-exclusive, non-transferable right to access and use the Complimentary Services, Premium Services and/or the Documentation for Customer's own internal business purposes and on the terms of this Agreement.

2.2

Company will provide the Complimentary Services and/or the Premium Services (collectively hereinafter referred to as the “Services”) and make available the Documentation to Customer on and subject to the terms of this Agreement. Company may update and/or upgrade the Services from time to time and will, where practicable, provide Customer with reasonable notice of any such changes.

2.3

In order to access and use the Complimentary Services, Customer must register for an Access Account.

2.4

In order to access and use the Premium Services, Customer must:

• (a) have paid the Subscription Fee plus any applicable taxes and duties to Company; and
• (b) register for an Access Account.

2.5

Once Company has received confirmation that the Subscription Fee has been paid, Company will allow Customer to access the Premium Services through Customer’s Access Account.

3. Hardware and Service Requirements and Performance

3.1:

Customer acknowledges that

• (a) Customer is solely responsible for acquiring, servicing, maintaining and updating all equipment, computers, software, interfaces and communication services reasonably required to access and use the Services;
• (b) the operation and availability of the system used for accessing the Services, including telecommunications services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Services; and
• (c) Company is not in any way responsible for any interference with or prevention of Customer’s access to and/or use of the Services.

4. Intellectual Property Rights and Confidentiality

4.1:

Customer acknowledges that all Intellectual Property Rights in the Software (including any Improvements), any Derivatives, the Services and the Documentation (collectively, the “Company IP”) belong to Company and will not dispute Company’s ownership of the same. Customer acknowledges and agrees that Company shall be the sole owner of any Improvements, updates, upgrades, new versions, or new releases of the Software Services and/or the System or Derivatives or Deliverables that are developed by Company or its affiliates during the term of this Agreement and thereafter, all of which shall be Company IP. Without limiting the foregoing, Customer expressly acknowledges and agrees that Company shall be the sole owner of any newly-developed, revised, or modified source code related in any way to the Services, the Software, or Company’ general business, regardless of whether developed, revised, or modified in response to Your requests, suggestions, or ideas, even if performed as part of additional services paid for by You, all of which shall be Company IP. During the term of this Agreement and thereafter, You will not assert the invalidity of the Company IP, or contest Company’ right, title, or interest therein and thereto, and You shall not cause, influence, or assist in any manner whatsoever, any other third party to make any such assertions or contest.

4.2

All information relating to the Software (including any Improvements), any Derivatives, the Services and the Documentation will be treated by Customer as confidential unless it is in the public domain otherwise than by a breach of this Agreement. Customer will not, during or after expiry or termination of this Agreement, disclose any such confidential information to any person without Company’s prior written consent.

4.3

Company acknowledges that all Intellectual Property Rights in any Customer Data remain the property of Customer. Customer must maintain copies of all Customer Data and Company will not be liable for any loss, cost or expense suffered by Customer or any other party as a result of Customer Data being lost.

4.4

Customer Undertakes:

• (a) not to access, store, distribute or transmit any viruses or other malicious code, and Company may, without liability to Customer, disable Customer’s access to the Services if Customer is in breach of this clause;
• (b) not to copy, modify, duplicate, create derivative works from, republish, reverse engineer, disassemble all or any portion of the Software or any Documentation;
• (c) to maintain the confidentiality of Customer’s Access Key and not to allow any unauthorised person to use the Access Key;
• (d) not to undermine the integrity or security of the Services or Company’s or any third party’s network or systems;
• (e) not to transfer or otherwise deal in the Documentation or Customer's rights under this Agreement;
• (f) to maintain all copyright notices on the Documentation;
• (g) to prevent any unauthorised access to or use of the Services and/or the Documentation and to notify Company immediately it becomes aware of any such unauthorized access or use.

4.5

Customer's obligations under this clause will survive termination of this Agreement.

5. Warranties

5.1

No warranties. To the extent permitted by the law, Company does not give any warranties nor does it guarantee that:

• (a) that the software will be accurate, without errors or fit for a particular purpose;
• (b) that the Customer’s access to the software will be uninterrupted or error free;
• (c) that the software will be compatible with the Customer’s computer and communications systems;
• (d) that the software will meet the Customer’s requirements and expectations.

5.2

Company warrants that it has full power and authority to grant access to the Services and the Documentation to Customer.

5.3

EXCEPT AS EXPRESSLY SET FORTH IN THIS CLAUSE 5, THE SOFTWARE, THE SERVICES, THE DOCUMENTATION, IMPROVEMENTS, ADDITIONAL SERVICES, OR OTHER DELIVERABLES PROVIDED UNDER THIS AGREEMENT (COLLECTIVELY, THE “WARRANTY SUBJECT MATTER”) ARE PROVIDED “AS IS” AND COMPANY, ITS PARENT CORPORATIONS, AFFILIATES, LICENSED DISTRIBUTORS AND RESELLERS AND THEIR RESPECTIVE OFFICERS, EMPLOYEES, SHAREHOLDERS, LICENSORS, DEVELOPERS, AND OTHER SUPPLIERS (THE “COMPANY PARTIES”) FURTHER DISCLAIM THAT THE FUNCTIONS CONTAINED IN THE WARRANTY SUBJECT MATTER WILL MEET THE REQUIREMENTS OF YOU OR THAT THE OPERATION OF THE WARRANTY SUBJECT MATTER WILL BE ERROR FREE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE LIMITED WARRANTIES SET FORTH IN THIS CLAUSE 5 ARE THE ONLY WARRANTIES PROVIDED FOR THE WARRANTY SUBJECT MATTER, AND THE REMEDIES FOR BREACH OF SUCH LIMITED WARRANTIES ARE EXCLUSIVE. EXCEPT AS EXPRESSLY SET FORTH IN THIS CLAUSE 5, THERE ARE NO OTHER WARRANTIES, CONDITIONS, OR TERMS, WHETHER EXPRESS OR IMPLIED BY STATUTE, OPERATION OF LAW, TRADE, USAGE, COURSE OF PERFORMANCE OR DEALING OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, OR COMPLETENESS; ALL SUCH WARRANTIES BEING SPECIFICALLY AND FULLY DISCLAIMED BY THE COMPANY PARTIES. YOU ACKNOWLEDGE THAT THE SALE OF GOODS (UNITED NATIONS CONVENTION) ACT 1994, AND ANY SUBSEQUENT TREATY ON THE SAME SUBJECT MATTER DOES NOT APPLY.

5.4

The Services and the Software may incorporate third party products. Company provides no warranty or representation in respect to those products. Any and all third party products are provided “As Is”, with no warranties of any kind. Any third party product sublicense will terminate when this Agreement terminates or when the Subscription Service is no longer being used by You. You shall not reverse engineer, modify, copy, distribute, or otherwise disclose the third party products, which shall be subject to the same restrictions as those set forth in this Agreement with respect to the Subscription Service or the Software.

5.5

The Services and the Software follow certain established practices in determining how time factors such as breaks are calculated and impact employee pay totals. It is the user’s responsibility to follow the provided documentation in determining the best way to incorporate these, and Company will not be liable for any incorrect payments that arise from misunderstanding of the documented factors or not configuring these factors correctly according to the documentation.

6. Limitation of liability

6.1

NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, COMPANY SHALL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, OR ANY LOST PROFITS, REVENUE, DATA, OR DATA USE, AND EITHER PARTY’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ORDER, WHETHER SUCH ACTION IS BROUGHT IN LAW, EQUITY, CONTRACT, OR TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, SHALL BE LIMITED TO THE SOLUTION FEES PAID BY YOU IN THE PRECEDING 180 DAYS.

6.2

Company will not be in default by reason of any failure to perform its obligations under this Agreement caused a Force Majeure Event. In any such event Company will use its reasonable endeavours to resume its obligations under this Agreement as soon as possible.

7. Customer Data

7.1

You understand that utilization of the Services requires Your input and transmission of Customer Data to Company and for storage on the Internet by the System. Accordingly, Customer hereby grants to Company a non-exclusive license to copy, reproduce, store, export, adapt, edit, and translate the Customer Data to the extent reasonably required for the performance of Company’ obligations and the exercise of Company’ rights under this Agreement, together with the right to sublicense these rights to its hosting connectivity and telecommunications service providers to the extent reasonably required for the performance of Company’ obligations and the exercise of its rights under this Agreement.

7.2

Customer warrants to Company that the Customer Data or the use of the Customer Data by Company in accordance with this Agreement will not (a) breach the provisions of any law, statute, or regulation; (b) infringe the Intellectual Property Rights or other legal rights of any person; or (c) give rise to any cause of action against Company in any case in any jurisdiction and under any applicable law.

8. Data Policy

8.1

Company Will:

• 8.1.1 Keep the Customer Confidential Information strictly confidential;
• 8.1.2 Not disclose the Client Confidential Information to any person without the Client’s prior written consent; and
• 8.1.3 Not use any of the Client Confidential Information for any purpose of than the performance of the Software Services under this Agreement.

8.2

Notwithstanding Section 8.1, Company may disclose the Client Confidential Information to the Company’ officers, employees, professional advisers, insurers, agents, and subcontractors who have a need to access the Client Confidential Information for the performance of their work with respect to the Software Services and who are bound by a written agreement or professional obligation to protect the confidentiality of the Client Confidential Information.

8.3

Company takes security seriously and has the following security features are in place:

• 8.3.1 The Services uses HTTPS for its public facing website. This ensures that data transfers are safely encrypted and transferred over SSL/TLS;
• 8.3.2 All users of the solution are authenticated and their access level is authorized;

8.4

In the provision of data security, the following third party vendors are used:

• 8.4.1 Stripe is used for credit card transactions and as a result no credit card details are handled directly by our system. Company may opt to store the last four digits of the Customer’s Credit Card for payment processing, which is related to a token which only the authenticated user can access on the public side of the website. More details about Stripe’s security features can be found here stripe.com.

8.5

Customer agrees Company has no liability for disclosures of Customer Confidential Information by third parties, including the third-party vendors listed in Section 8.4, or resulting directly or indirectly from the acts, failures, or omissions (whether negligent, grossly negligent, or in violation of a contractual duty) of the third party vendors listed in Section 8.4, nor does it have liability for disclosures which occur as a result of Force Majeure Events. Further, Article 8 imposes no obligations upon Company with respect to Client Confidential Information that:

• 8.5.1 Is known to Company before disclosure under this Agreement and is not subject to any other obligation of confidentiality; or
• 8.5.2 Is or becomes publicly known through no act or default of Company.

9. Default and Termination

9.1

Either party may terminate this Agreement without cause by giving the other party at least 30 days’ prior written notice.

9.2

Company may terminate this Agreement and remove Customer’s right to access and use the Services immediately on giving written notice to Customer if Customer:

• (a) breaches any of its obligations under clause 4;
• (b) fails to pay all due subscription fees, or breaches any other provision of this Agreement and fails to remedy the breach within seven days after receiving notice from Company requiring it to be remedied;
• (c) assigns its rights or obligations under this Agreement otherwise than in accordance with clause 11.5; or
• (d) becomes insolvent, goes into liquidation, has a receiver appointed over any of its assets, ceases to carry on its business or makes any composition or arrangement with its creditors.

9.3

Following termination of this Agreement Customer will cease to access and use the Services and must destroy all copies of the Documentation in whatever form possessed by Customer.

10. Dispute Resolution

10.1

If a dispute arises, the parties will seek to resolve the dispute informally and in good faith by negotiation. Either party can initiate the negotiation process by giving notice of the dispute to the other party in writing.

10.2

If the parties cannot resolve the dispute by negotiation within 20 business days after initiation of the negotiation process, then either party may initiate arbitration. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration. The Arbitration shall be governed by New Zealand law, take place in Wellington, New Zealand and be before a single arbitrator. The arbitrator shall be selected by agreement of the parties. If the parties cannot agree, then the New Zealand Dispute Resolution Center will select an arbitrator. The prevailing party shall be entitled to reimbursement of all attorney’s fees, arbitration fees, and related costs.

11. General

11.1

Any notice to be given in terms of this Agreement must be made in writing, by email or by fax sent to the registered office or principal place of business of the other party as set out in the Schedule or to such other address as may be notified by either party to the other from time to time. Any communication by email or fax will be deemed to be received when transmitted error free to the correct email or fax address of the recipient. Any other communication in writing will be deemed to be received when left at the specified address of the recipient or on the third day following the date of posting.

11.2

No waiver of any breach of this Agreement will be deemed to be a waiver of any other or any subsequent breach. The failure of any party to enforce any provision of this Agreement will not be interpreted as a waiver of the provision.

11.3

This Agreement constitutes the entire agreement between the parties and supersedes all previous negotiations, commitments and/or writings.

11.4

No alteration of this Agreement will be binding unless it is in writing and executed by both parties.

11.5

Customer may not assign or transfer this Agreement or any of its rights or obligations hereunder without the prior written consent of Company.

11.6

If any provision of this Agreement is invalid or unenforceable, the remaining provisions will not be affected and will continue in full force.

11.7

This Agreement and all disputes arising hereunder either directly or indirection shall be governed by and must be interpreted in accordance with the laws of New Zealand.

11.8

U.S. Government End Users. This section applies to United States Government End Users only and does not apply to other End Users. The Software Services, the System, and its Specifications may be “commercial computer software,” and “commercial computer software documentation,” respectively; as such terms are used in FAR 12.212 and DFARS 227.7202. If the Software and its Specifications are being acquired by the U.S. Government, then, as provided in FAR 12.212 and DFARS 227.7202-1 through SS&.7202-4, as applicable, the U.S. Government’s rights in the Software and its Specifications shall be as specified in this Agreement.

11.9

In the event of any suit or action between the parties arising directly or indirectly out of this Agreement, the prevailing party is entitled to recover, in addition to other costs, reasonable attorney fees and court costs in connection with the suit, action, or arbitration and in any appeals.