SECTION B: Terms of Service
INTERPRETATION
Change of Terms: We reserve the right to modify these Terms of Service from time to time. Changes will be effective immediately upon posting to our website or notifying you by other means. Continued use of the Services after such modifications constitutes your acceptance of the revised terms but shall not affect your obligations during any Minimum Term.
Definitions: In the Agreement, the following terms have the stated meaning:
Term
Meaning
Additional Services
Any optional Related service described in the Key details, these services being optional to purchase with the Subscription service.
Agreement
Section A (Agreement and Key Details for each product, Special Terms, including the cover page and signature clauses) and the current version of Section B (Terms of Service) on the Takticians website at https://www.takticians.com/terms-of-service/
Confidential Information
the terms of the Agreement and any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, the Agreement. The Supplier’s Confidential Information includes Intellectual Property owned by the Supplier (or its licensors), including the Taktician’s Software Products. The Client’s Confidential Information includes the Data.
Data
all data, content, and information (including Personal Information) owned, held, used or created by or on behalf of the Client that is stored using, or inputted into, the Services.
End Date
the end date set out in the Key Details.
Fees
the fees set out in the Key Details, as updated from time to time in accordance with clause Increases:.
Force Majeure
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.
failure to make time to provide access to systems or personnel
Intellectual Property Rights
includes copyright and all rights existing 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.
Key Details
the Agreement specific details set out in Section A of the Agreement.
Objectionable
includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.
Payment Terms
the payment terms set out in the Key Details (if any).
Personal Information
has the meaning given in the Privacy Act 2020.
Related Services
any related service described in the Key Details and any further services that the Supplier agrees to provide to the Client under the Agreement including but not limited to Required Services and Additional Services
Required Services
any required service described in the Key details, these services being mandatory to purchase with the Subscription service
SaaS Service
the service having the core functionality described on the website and updated from time to time.
Services
the SaaS Service and any Related Service.
Start Date
the start date set out in the Key Details.
Taktician Software
the software product or product suite owned by the Supplier (and its licensors) that is used to provide the SaaS Service.
Users
Anyone using or relying on the Product or Services who has obtained access to the Client’s instance of the products.
Underlying Systems
the Takticians Software, IT solutions, systems and networks (including software and hardware) used to provide the Services, including any third-party solutions, systems and networks.
Website
the internet site at the domain set out in the Key Details, or such other site notified to the Client by the Supplier.
Year
a 12-month period starting on the Start Date or the anniversary of that date.
Interpretation: In the Agreement:
clause and other headings are for ease of reference only and do not affect the interpretation of the Agreement;
words in the singular include the plural and vice versa;
a reference to:
a party to the Agreement includes that party’s permitted assigns;
personnel includes officers, employees, contractors and agents, but a reference to the Client’s personnel does not include the Supplier;
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;
including and similar words do not imply any limit; and
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;
no term of the Agreement is to be read against a party because the term was first proposed or drafted by that party; and
if there is any conflict between Section B and Section A of the Agreement, Section B prevails unless expressly stated otherwise in Section A. For the avoidance of Doubt Terms listed in the Special Terms section of Section A shall prevail over Section B Terms where there is a conflict.
SERVICES
General: The Supplier must use reasonable efforts to provide the Services:
in accordance with the Agreement and New Zealand law;
exercising reasonable care, skill and diligence; and
using suitably skilled, experienced and qualified personnel.
Non-exclusive: The Supplier’s provision of the Services to the Client is non-exclusive. Nothing in the Agreement prevents the Supplier from providing the Services to any other person.
Availability:
Subject to Clause 2.3b, the Supplier will use reasonable efforts to ensure the SaaS Service is available on a 24/7 basis. However, it is possible that on occasion the SaaS Service may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure. The Supplier will use reasonable efforts to publish on the Website or notify the Client by email advance details of any unavailability.
Through the use of web services and APIs, the SaaS Service interoperates with a range of third party service features. The Supplier does not make any warranty or representation on the availability 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, the Supplier may cease to make available that feature to the Client. To avoid doubt, if the Supplier exercises its right to cease the availability of a third party feature, the Client is not entitled to any refund, discount or other compensation.
Related Services:
The Services listed in the Required Services are mandatory with the purchase of Subscription of the relevant product subscription.
The Supplier may, from time to time, make available Additional Services to supplement the SaaS Service. The Services listed in the Additional Services are optional with the Purchase of the Subscription or anytime during the Minimum term. Thereafter, the relevant Service and Fees can be found on the website.
Subject to the Client paying the applicable Fees, the Supplier may agree to provide to the Client a Related Service on the terms of the Agreement.
Required Services Fees will be due on signing and booking of Services kick off will commence on payment of the Fees. Additional Services Fees will be due ahead of Service.
Any special payment discount shall only apply up to a maximum of the Minimum Term listed in the Key Details.
The Client agrees to provide access without unreasonable delay, to meetings with business decision makers; team members with relevant expertise or experience; website and domain access; API keys and business systems to allow delivery of the Required Services. Timely delivery of Required Services will be dependent on such supply.
CLIENT OBLIGATIONS
General use: The Client and its personnel must:
use the Services in accordance with the Agreement solely for:
the Client’s own internal business purposes; and
lawful purposes (including complying with the Unsolicited Electronic Messages Act 2007) ; and
not resell or make available the Services to any third party, or otherwise commercially exploit the Services.
Access conditions: When accessing the SaaS Service, the Client and its personnel must:
not impersonate another person or misrepresent authorisation to act on behalf of others or the Supplier;
correctly identify the sender of all electronic transmissions;
not attempt to undermine the security or integrity of the Underlying Systems;
not use, or misuse, the SaaS Service in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the SaaS Service;
not attempt to view, access or copy any material or data other than:
that which the Client is authorised to access; and
to the extent necessary for the Client and its personnel to use the SaaS Service in accordance with the Agreement;
Upload indecent or malicious files, viruses trojans or introduce other mechanisms for digital harm
neither use the SaaS 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; and
comply with any terms of use on the Website, as updated from time to time by the Supplier.
Personnel:
The Client may authorise any member of its personnel to be a User, in which case the Client will provide the Supplier with the User’s name, email and other information that the Supplier reasonably requires in relation to the User.
The Client must procure each Permitted User’s compliance with Clauses 3.1 General Use and 3.2 Access Conditions and any other reasonable condition notified by the Supplier to the Client.
A breach of any term of the Agreement by the Client’s personnel (including, to avoid doubt, a User) is deemed to be a breach of the Agreement by the Client.
Authorisations: The Client is responsible for procuring all licences, authorisations and consents required for it and its personnel to use the Services, including to use, store and input Data into and process and distribute Data through, the Services.
DATA
Supplier access to Data:
The Client acknowledges that:
i the Supplier may require access to the Data to exercise its rights and perform its obligations under the Agreement; and
ii to the extent that this is necessary but subject to Clause 7 Confidentiality, the Supplier may authorise a member or members of its personnel to access the Data for this purpose.
The Client must arrange all consents and approvals that are necessary for the Supplier to access the Data as described in this Clause 4.1.
Analytical Data:
The Client acknowledges and agrees that:
the Supplier may:
use Data and information about the Client’s use of the Services to generate anonymised and aggregated statistical and analytical data (Analytical Data); and
use Analytical Data for the Supplier’s internal research and product development purposes and to conduct statistical analysis and identify trends and insights; and
supply Analytical Data to third parties
the Supplier’s rights under Clauses 4.2aii and iii above will survive termination or expiry of the Agreement; and
title to, and all Intellectual Property Rights in, Analytical Data is and remains the Supplier’s property.
Agent:
The Client acknowledges and agrees that to the extent Data contains Personal Information, in collecting, holding and processing that information through the Services, the Supplier is acting as an agent of the Client for the purposes of the Privacy Act 2020 and any other applicable privacy law.
The Client must obtain all necessary consents from the relevant individual to enable the Supplier to collect, use, hold and process that information in accordance with the Agreement.
Business Continuity and Backups:
The Supplier will take standard industry measures such as using cloud provided data replication, backup facilities and automated server recovery. Our recovery and restoration objectives are as listed in 4.4b to maintain business operations for Clients.
Recovery and Restoration: We will meet the following objectives
Recovery point objective (RPO) - Database backups daily (point in time restore for current day)
Recovery time objective (RTO) - Ability to rebuild / redeploy in another AWS region within a day
Data loss: Data loss is an unavoidable risk when using any technology. You’re responsible for maintaining copies of your essential data entered into our services. We are not liable for loss of your data other than in accordance with section 4.6 of these terms.
Access issues: You know how the internet works – occasionally you might not be able to access our services and your data. This might happen for any number of reasons, at any time.
International storage of Data: The Client agrees that the Supplier may store Data (including any Personal Information) in secure servers in Australia, and may access that Data (including any Personal Information) in Australia and New Zealand from time to time.
Indemnity: The Client indemnifies the Supplier to the fullest extent possible against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by the Supplier’s 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.
FEES
Fees: The Client must pay the Supplier the Fees.
Invoicing and payment:
The Supplier will provide the Client with valid GST tax invoices for all Services..
The Fees quoted exclude GST, which the Client must pay on taxable supplies under the Agreement.
The Client must pay the Subscription Fees:
on the dates set out in the Payment Terms, or if there are none, by the 20th of the month preceding the month or year of service ; and
electronically in cleared funds without any set off or deduction.
The Supplier agrees that revenue percentage based Fees and Merchant Fees will be deducted at the point of sale, and remaining balance of the sale will then be paid to the Client through the agreed banking facility.
The Client must pay Related Services:
in advance of the Service being booked. On payment of the Fee, start date will be booked.
electronically in cleared funds without any set off or deduction.
Overdue amounts: The Supplier may charge interest on overdue amounts. Interest will be calculated from the due date to the date of payment (both inclusive) at an annual percentage rate equal to the corporate overdraft reference rate (monthly charging cycle) applied by the Supplier’s primary trading bank as at the due date (or, if the Supplier’s primary trading bank ceases to quote that rate, then the rate which in the opinion of the bank is equivalent to that rate in respect of similar overdraft accommodation expressed as a percentage) plus 2% per annum.
Increases:
By giving at least 90 days’ notice, the Supplier may increase the Fees once each Year (but not related to the Services ordered during the Minimum Term) )
If the Client does not wish to pay the increased Fees, it may terminate the Agreement on no less than 30 days’ notice, provided the notice is received by the Supplier before the effective date of the Fee increase. If the Client does not terminate the Agreement in accordance with this clause, it is deemed to have accepted the increased Fees.
Non-payment:
All Fees are due prior to service delivery.
Subscription Fees not received by the 20th of the Month prior to the month of service, shall result in suspension of the service.
The Fees are still due during the Minimum Term, whether or not they are suspended.
If the Client fails to make any payment due under this Agreement by the due date, the Supplier reserves the right to engage a debt collection agency or other third-party service to recover the outstanding amount. The Client agrees to pay a Collection Fee, indemnify the Supplier for all costs incurred in the recovery of overdue payments, including but not limited to collection agency fees, legal expenses on a solicitor-client basis, and any applicable court costs.
The Client expressly authorises the Supplier to disclose any relevant personal information, including but not limited to the Client’s name, Business Name, contact details, and payment history, to a debt collection agency or other third party engaged for the purpose of recovering outstanding amounts. Such disclosure will be made in compliance with the Privacy Act 2020. The Customer acknowledges that this information may be used by the debt collection agency to contact the Customer, assess creditworthiness, and take any necessary action to recover the debt.
INTELLECTUAL PROPERTY
Ownership:
Subject to clause 6.1b, and all Intellectual Property Rights in the Services, the Website, and all Underlying Systems is and remains the property of the Supplier (and its licensors). The Client must not contest or dispute that ownership, or the validity of those Intellectual Property Rights.
Title to, and all Intellectual Property Rights in, the Data (as between the parties) remains the property of the Client. The Client grants the Supplier a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate the Data for any purpose in connection with the exercise of its rights and performance of its obligations in accordance with the Agreement.
Know-how: To the extent not owned by the Supplier, the Client grants the Supplier a royalty-free, transferable, irrevocable and perpetual licence to use for the Supplier’s own business purposes any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by the Supplier in the provision of the Services. For the avoidance of doubt, Confidential Information the Supplier may be exposed to during the Services but not integral to the provision of Services, shall not be considered Know-how and shall be governed by Clause 7 Confidentiality.
Feedback: If the Client provides the Supplier with ideas, comments or suggestions relating to the Services or Underlying Systems (together feedback):
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 the Supplier; and
the Supplier may use or disclose the feedback for any purpose.
Third party sites and material: The Client acknowledges that the SaaS Service may link to third party websites or feeds that are connected or relevant to the SaaS Service. Any link from the SaaS Service does not imply any Supplier endorsement, approval or recommendation of, or responsibility for, those websites or feeds or their content or operators. To the maximum extent permitted by law, the Supplier excludes all responsibility or liability for those websites or feeds.
Third party Intellectual Property Rights indemnity:
The Supplier indemnifies the Client against any claim or proceeding brought against the Client to the extent that claim or proceeding alleges that the Client’s use of the SaaS Service in accordance with the Agreement constitutes an infringement of a third party’s Intellectual Property Rights (IP Claim). The indemnity is subject to the Client:
promptly notifying the Supplier in writing of the IP Claim;
making no admission of liability and not otherwise prejudicing or settling the IP Claim, without the Supplier’s prior written consent; and
giving the Supplier complete authority and information required for the Supplier to conduct and/or settle the negotiations and litigation relating to the IP Claim. The costs incurred or recovered are for the Supplier’s account.
The indemnity in 6.5a does not apply to the extent that an IP Claim arises from or in connection with:
the Client’s breach of the Agreement;
use of the SaaS Service in a manner or for a purpose not reasonably contemplated by the Agreement or otherwise not authorised in writing by the Supplier; or
any third party data or any Data.
If at any time an IP Claim is made, or in the Supplier’s reasonable opinion is likely to be made, then in defence or settlement of the IP Claim, the Supplier may (at the Supplier’s option):
obtain for the Client the right to continue using the items which are the subject of the IP Claim; or
modify, re-perform or replace the items which are the subject of the IP Claim so they become non-infringing.
CONFIDENTIALITY
Security: Each party must, unless it has the prior written consent of the other party:
keep confidential at all times the Confidential Information of the other party;
effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorised access or use; and
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, the provisions of Clauses 7.1a and 7.1b..
Permitted disclosure: The obligation of confidentiality in Clause 7.1 does not apply to any disclosure or use of Confidential Information:
for the purpose of performing the Agreement or exercising a party’s rights under the Agreement;
required by law (including under the rules of any stock exchange);
which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
which was rightfully received by a party to the Agreement from a third party without restriction and without breach of any obligation of confidentiality; or
by the Supplier if required as part of a bona fide sale of its business (assets or shares, whether in whole or in part) to a third party, provided that the Supplier enters into a confidentiality agreement with the third party on terms no less restrictive than this Clause 7 Confidentiality.
WARRANTIES
Mutual warranties: Each party warrants that it has full power and authority to enter into and perform its obligations under the Agreement which, when signed, will constitute binding obligations on the warranting party.
No implied warranties: To the maximum extent permitted by law:
the Supplier’s warranties are limited to those set out in the Agreement, and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise (including any warranty under Part 3 of the Contract and Commercial Law Act 2017) are expressly excluded and, to the extent that they cannot be excluded, liability for them is limited to NZD1,000; and
the Supplier makes no representation concerning the quality of the Services and does not promise that the Services will:
meet the Client’s requirements or be suitable for a particular purpose
be secure, free of viruses or other harmful code, uninterrupted or error free.
Consumer Guarantees Act: The Client agrees and represents that it is acquiring the Services, and entering the Agreement, for the purposes of trade. The parties agree that:
to the maximum extent permissible by law, the Consumer Guarantees Act 1993 and any other applicable consumer protection legislation does not apply to the supply of the Services or the Agreement; and
it is fair and reasonable that the parties are bound by this Clause 8.3 Consumer Guarantees Act.
Limitation of remedies: Where legislation or rule of law implies into the Agreement a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in the Agreement. However, the liability of the Supplier for any breach of that condition or warranty is limited, at the Supplier’s option, to:
supplying the Services again; and/or
paying the costs of having the Services supplied again.
LIABILITY
Maximum liability: The maximum aggregate liability of the Supplier under or in connection with the Agreement or relating to the Services, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not in any Year exceed an amount equal to the Subscription Fees paid by the Client under the Agreement in the previous Year (which in the first Year is deemed to be the total Fees paid by the Client from the Start Date to the date of the first event giving rise to liability) plus any Related Services Fees paid in advance. The cap in this Clause 9.1 includes the cap set out in Clause 8.2a.
Unrecoverable loss: Neither party is liable to the other under or in connection with the Agreement or the Services for any:
loss of profit, revenue, savings, business, use, data (including Data), and/or goodwill; or
consequential, indirect, incidental or special damage or loss of any kind.
Unlimited liability:
Clauses 9.1 Maximum Liability and 9.2 do not apply to limit the Supplier’s liability:
under the indemnity in Clause 6.5a; or
under or in connection with the Agreement for:
personal injury or death;
fraud or wilful misconduct; or
a breach of Clause 7 Confidentiality.
Clause 9.2 Unrecoverable loss: Neither party is liable to the other under or in connection with the Agreement or the Services for any: does not apply to limit the Client’s liability:
to pay the Fees;
under the indemnity in Clause 4.6 Indemnity: or
for those matters stated in Clause 9.3aii
No liability for other’s failure: Neither party will be responsible, liable, or held to be in breach of the Agreement for any failure to perform its obligations under the Agreement or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under the Agreement, or by the negligence or misconduct of the other party or its personnel.
Mitigation: 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 the Agreement.
TERM, TERMINATION AND SUSPENSION
Duration: Unless terminated under this Clause 10 Term, Termination and Suspension, the Agreement:
starts on the Start Date and ends on the End Date; but
where no End Date is set out in Section A, continues for successive terms of twelve (12) months from the Start Date unless a party gives notice to terminate by the 20th of the final month of Service that the Agreement will terminate on the expiry of the then-current term.
For the avoidance of doubt the Agreement shall not be deemed to be terminated due to these conditions, where:
a Minimum Term is applicable,
no notice is received as to intent to cancel by the 20th of the last month of Service in the current term
if the Users have used the system during the new term
the system has been suspended for non-payment of the current term.
No fault termination: Either party may terminate the Agreement by giving notice by the 20th of the month prior to the end of the current term.
Other termination rights:
Either party may, by notice to the other party, immediately terminate the Agreement if the other party:
breaches any material provision of the Agreement and the breach is not:
remedied within 10 days of the receipt of a notice from the first party requiring it to remedy the breach; or
capable of being remedied;
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; or
is unable to perform a material obligation under the Agreement for 30 days or more due to Force Majeure.
If the remedies in Clause 6.5c are exhausted without remedying or settling the IP Claim, the Supplier may, by notice to the Client, immediately terminate the Agreement.
Consequences of termination or expiry:
Termination or expiry of the Agreement does not affect either party’s rights and obligations that accrued before that termination or expiry.
On termination or expiry of the Agreement, the Client must pay all Fees for Services provided prior to that termination or expiry including all fees covering the Minimum Term or any subsequent current term.
Except to the extent that a party has ongoing rights to use Confidential Information, at the other party’s request following termination or expiry of the Agreement and subject to Clause 10.4d a party must promptly return to the other party or destroy all Confidential Information of the other party that is in the first party’s possession or control.
At any time prior to one month after the date of termination or expiry, the Client may request:
a copy of any Data stored using the SaaS Service, provided that the Client pays the Supplier’s reasonable costs of providing that copy. On receipt of that request, the Supplier must provide a copy of the Data in a common electronic form. The Supplier does not warrant that the format of the Data will be compatible with any software; and/or
deletion of the Data stored using the SaaS Service, in which case the Supplier must use reasonable efforts to promptly delete that Data.
To avoid doubt, the Supplier is not required to comply with Clause 10.4di to the extent that the Client previously requested deletion of the Data.
Obligations continuing: Clauses which, by their nature, are intended to survive termination or expiry of the Agreement, including Clauses 4.6, 6, 7, 9, 10.3, 10.4 and 11, continue in force.
Rights to restrict: Without limiting any other right or remedy available to the Supplier, the Supplier may restrict or suspend the Client’s access to the SaaS Service and/or delete, edit or remove the relevant Data if the Supplier considers that the Client (including any of its personnel) has:
undermined, or attempted to undermine, the security or integrity of the SaaS Service or any Underlying Systems;
used, or attempted to use, the SaaS Service:
for improper purposes; or
in a manner, other than for normal operational purposes, that materially reduces the operational performance of the SaaS Service;
transmitted, inputted or stored any Data that breaches or may breach the Agreement or any third party right (including Intellectual Property Rights and privacy rights), or that is or may be Objectionable, incorrect or misleading; or
otherwise materially breached the Agreement.
Process:
The Supplier must notify the Client where it restricts or suspends the Client’s access, or deletes, edits or removes Data, under Clause 10.6.
Clause 10.4di will not apply to the extent that it relates to Data deleted or removed under Clause 10.6.
DISPUTES
Good faith negotiations: Before taking any court action, a party must use best efforts to resolve any dispute under, or in connection with, the Agreement through good faith negotiations.
Obligations continue: Each party must, to the extent possible, continue to perform its obligations under the Agreement even if there is a dispute.
Right to seek relief: This Clause DISPUTES does not affect either party’s right to seek urgent interlocutory and/or injunctive relief.
GENERAL
Force Majeure: Neither party is liable to the other for any failure to perform its obligations under the Agreement to the extent caused by Force Majeure, provided that the affected party:
immediately notifies the other party and provides full information about the Force Majeure;
uses best efforts to overcome the Force Majeure; and
continues to perform its obligations to the extent practicable.
Rights of third parties: No person other than the Supplier and the Client has any right to a benefit under, or to enforce, the Agreement.
Waiver: To waive a right under the Agreement, that waiver must be in writing and signed by the waiving party.
Independent contractor: Subject to Clause 4.3, the Supplier is an independent contractor of the Client, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under the Agreement.
Notices: A notice given by a party under the Agreement must be delivered to the other party via email using the email address set out in the Key Details or otherwise notified by the other party for this purpose. If the notice is a notice of termination, a copy of that email must be immediately delivered (by hand or courier) to the Chief Executive or equivalent officer of the other party at the other party’s last known physical address.
Severability:
If any provision of the Agreement is, or becomes, illegal, unenforceable or invalid, the relevant provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity.
If modification under Clause 12.6a Severability, the provision must be treated for all purposes as severed from the Agreement without affecting the legality, enforceability or validity of the remaining provisions of the Agreement.
Variation: Subject to Clause 5.4 Increases: , any variation to the Agreement must be in writing and signed by both parties.
Entire agreement: The Agreement sets out everything agreed by the parties relating to the Services, and supersedes and cancels anything discussed, exchanged or agreed prior to the Start Date. The parties have not relied on any representation, warranty or agreement relating to the subject matter of the Agreement that is not expressly set out in the Agreement, and no such representation, warranty or agreement has any effect from the Start Date. Without limiting the previous sentence, the parties agree to contract out of sections 9, 12A and 13 of the Fair Trading Act 1986, and that it is fair and reasonable that the parties are bound by this Clause 12.8.
Subcontracting and assignment:
The Client may not assign, novate, subcontract or transfer any right or obligation under the Agreement without the prior written consent of the Supplier, that consent not to be unreasonably withheld. The Client remains liable for its obligations under the Agreement despite any approved assignment, subcontracting or transfer. Any assignment, novation, subcontracting or transfer must be in writing.
The Supplier may assign, novate, subcontract or transfer any right or obligation under the Agreement to any entity without the prior written consent of the Client. The Client will notify the Client by email in a reasonable timeframe if this occurs.
Law: The Agreement is 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 the Agreement.
Counterparts: The Agreement may be signed in counterparts, each of which constitutes an original and all of which constitute the same agreement. A party may enter the Agreement by signing and emailing a counterpart copy to the other party.