Odyssey - Terms and Conditions
SECTION A: AGREEMENT AND KEY DETAILS
AGREEMENT
The Supplier agrees to provide, and the Client agrees to buy, the Odyssey Software as a Service offering, and related services, on the terms of the Agreement. The Agreement comprises:
GENERAL TERMS
INTERPRETATION
Definitions: In the Agreement, the following terms have the stated meaning:
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 Odyssey Software. The Client’s Confidential Information includes the Data.
Customer Record
A customer record is for each individual person. This includes any customer status related to that individual e.g. booking, enquiry, cancellation, and postponement.
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. Data includes a Customer Record.
Data Protection Laws
means the New Zealand Privacy Act 2020 and all data protection or privacy laws that apply to the Data.
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 5.4.
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.
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 trademarks 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.
Odyssey Software
the software owned by the Supplier (and its licensors) that is used to provide the SaaS Service.
Payment Terms
the payment terms set out in the Key Details (if any).
Permitted Users
those personnel of the Client who are authorised to access and use the Services on the Client’s behalf in accordance with clause 3.3
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.
SaaS Service
the service having the core functionality described in the Key Details. The SaaS Service is described in more detail on the Website, as the Website is updated from time to time.
Sales Tax
any goods and services tax, value added tax, or other form of sales tax imposed by a competent authority in any jurisdiction relating to a supply under the Agreement.
Services
the SaaS Service and any Related Service.
Start Date
the start date set out in the Key Details.
Underlying Systems
the Odyssey 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.
SERVICES
General: The Supplier must use all 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:
The Supplier will use all reasonable efforts to ensure the SaaS Service is available during the Supplier’s normal business hours in New Zealand. 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 notify the client by email in advance with 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. The Supplier may, at its discretion change any third party service provider to meet relevant service features. If a third party feature ceases to be available, the Supplier may, where it considers the removal of that feature materially reduces the functionality of the SaaS Service in the Supplier’s sole discretion, reduce the Fees for the SaaS Service to an amount that the Supplier (in its sole discretion) considers represents the reduced features for the SaaS Service. This reduction in Fees will take effect on and from the next quarterly payment date. To avoid doubt, where the Supplier determines that there is no Fees reduction, the Client’s sole remedy is to terminate the Agreement in accordance with clause 10.2.
Additional Related Services:
The Supplier may, from time to time, make available additional services to supplement the SaaS Service.
At the request of the Client and subject to the Client paying the applicable Fees, the Supplier may agree to provide to the Client an additional Related Service on the terms of the Agreement.
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, excluding (to avoid doubt) use of the Services by or for related franchises, affiliates or related companies (including parent companies and their subsidiary companies) and their personnel, and
lawful purposes (including complying with the New Zealand Unsolicited Electronic Messages Act 2007 and any other applicable anti-spam legislation); 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; and
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.
Personnel:
Without limiting clause 3.2, no individual other than a Permitted User may access or use the SaaS Service.
The Client may authorise any member of its personnel to be a Permitted User, in which case the Client will provide the Supplier with the Permitted User’s name and other information that the Supplier reasonably requires in relation to the Permitted User.
A Permitted User must be a direct employee or contractor of the Client, and excludes an employee or contractor of related franchise, affiliates or related companies (including parent companies and their subsidiary companies), unless agreed in writing by the Supplier.
A Permitted User is a single individual person – no shared access rights are permitted.
The Client must procure each Permitted User’s compliance with clauses 3.1 and 3.2 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 Permitted User is deemed to be a breach of the Agreement by the Client.
Authorisations: The Client is responsible for procuring all 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:
the Supplier may require access to the Data to exercise its rights and perform its obligations under the Agreement; and
to the extent that this is necessary but subject to clause 7, 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 clause 4.1a.
Analytical Data: The Client acknowledges and agrees that:
the Supplier may:
use Data and information about the Client’s and the Client’s end users’ 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
the Supplier’s rights under clause 4.2a above will survive termination of 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 1993 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.
You acknowledge and agree that to the extent that Data contains Personal Information:
the Supplier will comply with applicable Data Protection Laws and the Supplier’s privacy policy; and
in the processing of that information through the Service, the Supplier is acting as the Client’s agent, service provider, and/or data processor, for the purposes of Data Protection Laws. 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 (including to exercise all rights under the Agreement). These consents must be explicit and comply with applicable Data Protection Laws. On request, the Client must provide written confirmation to the Supplier that the Client has these explicit consents.
Backups of Data: While the Supplier will take standard industry measures to back up all Data stored using the Services, the Supplier recommends that the Client keeps a separate back-up copy of all manual or electronic Data uploaded by it onto the SaaS Service.
International storage of Data: Odyssey Software is hosted on an external server with hosting provided by a commercial ‘cloud based’ server provider. The Supplier reserves the right to transfer hosting or store data on other server providers. The Client agrees that the Supplier may store Data including any Personal Information in secure servers internationally, including in New Zealand.
Indemnity: The Client indemnifies the Supplier 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 to the Supplier the Fees.
Invoicing and payment:
The Supplier will provide the Client with valid tax invoices on the dates set out in the Payment Terms.
The Fees exclude Sales Taxes, which the Client must pay on taxable supplies under the Agreement if Sales Taxes are applicable.
The Client must pay the Fees:
on the dates set out in the Payment Terms, and
electronically in cleared funds without any set off or deduction.
Additional Permitted Users added by Client during the term of this Agreement will be invoiced from the date of that addition to the end of the then current quarterly period, and subsequently added to the next quarterly invoices.
The SaaS Service includes different modules that have different Fee structures. Certain modules are included in certain price packages. Selected modules can be changed or transferred to another module provided they are of equal or lower value, and are included within the same package. Additional Fees apply for changing or transferring for higher cost modules or to different packages.
If the Client exceeds the cumulative number of Customer Records set out in the Key Details in a Year, then the Client will automatically change to the next tier of Fees. The Supplier will advise in writing the applicable Fees for that next tier, which are payable from the start of the next quarter. The number of Customer Records and the Fees set out in the Key Details are deemed to be replaced with the number of Customer Records and the Fees for the next tier..
Overdue amounts: Without limiting the Supplier’s other rights or remedies, if any invoice remains unpaid beyond 30 days from due date, the Supplier may, without liability or notice, suspend the Client’s access to, and use of, the SaaS Service until all outstanding amounts are paid in full.
Changes:
By giving at least 60 days’ notice, the Supplier may increase the Fees once each Year (but not the first Year) by no more than 5%. Fees increased under this clause are deemed to be the Fees listed in the Key Details.
From time to time, the Supplier may make available new features or functionality as part of the SaaS Service. Those new features and functionality may be subject to additional Fees and/or additional conditions. The Client’s access to any new feature or functionality will be subject to it agreeing to pay any additional Fee and/or to comply with any additional condition.
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.
INTELLECTUAL PROPERTY
Ownership:
Subject to clause 6.1b, title to, 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.
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.
Nothing in this clause 6.3 requires the Supplier to develop, change, or amend the SaaS Service based on any feedback.
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.
Marketing Material: Except with the prior written consent of the other party, a party may not use of logo, user quotes, images and other similar resources of the other party for marketing purposes (e.g. website or marketing material).
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 clause 6.6a 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.
for any mediation or legal dispute involving the Client and/or Supplier.
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 NZD1,000.00; and
the Supplier 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.
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 Fees paid by the Client under the Agreement in the previous Year. 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 and 9.2 do not apply to limit the Supplier’s liability:
under the indemnity in clause 6.6a; or
under or in connection with the Agreement for:
personal injury or death;
fraud or wilful misconduct; or
a breach of clause 7.
Clause 9.2 does not apply to limit the Client’s liability:
to pay the Fees;
under the indemnity in clause 4.4; 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, the Agreement:
starts on the Start Date and ends on the End Date; but
where no End Date is set out in the Key Details, continues for successive terms of 12 months from the Start Date unless a party gives at least 30 days’ notice that the Agreement will terminate on the expiry of the then-current term.
No fault termination: Either party may terminate the Agreement on at least 30 days’ prior notice to the other party.
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 45 days or more due to Force Majeure.
If the remedies in clause 6.6c 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.
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 4.2, 4.6, 6, 7, 9, 10.4, 10.5, 11, and 12.10 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 11 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 is not possible, 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, 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 (provided that the Supplier may include conditions on its consent, e.g. that the Fees are adjusted based on the proposed assignment, novation, subcontract or transfer). 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 and approved by the Supplier.
Any change of control of the Client is deemed to be an assignment for which the Supplier’s prior written consent is required under clause 12.9a. In this clause change of control means:
any transfer of shares or other arrangement affecting the Client or any member of its group which results in a change in the effective control of the Client; and
any purchase, takeover or merger of any third party by the Client.
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.
Solution by Creative Technology NZ Ltd Nelson, New Zealand