1 Application of Terms
1.1 These Terms apply to your use of the Services (as that term is defined below). By clicking on the Click to Accept link provided to you at the time of your initial account set up, or by accessing and using the Services in any other way:
- a) you agree to these Terms (acceptance); and
- b) where your acceptance 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 Services, and you must immediately stop doing so.
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 Services, you agree to be bound by the changed Terms.
2.2 We may change, suspend, discontinue, or restrict access to, the Services without notice or liability
2.3 These terms were last updated on the 14th of March 2016
3.1 In these Terms, the following terms have the stated meaning
- Account ID
a unique name and/or password allocated to you to allow you to access and use the SaaS Service.
- Beta Version
a trial or test version of the SaaS Service, identified by us as a beta version.
- Confidential Information
any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, these Terms. Intellectual Property owned by us (or its licensors), including the Spectral Solutions Software, is our Confidential Information. The Data is your Confidential Information
all data, content, and information (including Personal Information) owned, held, used or created by or on behalf of you that is stored using, or inputted into, the Services
SAAS Service: the fees for the SaaS Service as set out at in our Pricing Page,
as may be updated from time to time in accordance with clause 9.5
Related Services: the fees for the particular Related Service as agreed upon between you and us prior to that Related Service being carried out
- 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 worldwide rights 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
includes being objectionable, defamatory, obscene, harassing, threatening, or unlawful in any way.
- Personal Information
has the meaning given in the New Zealand Privacy Act 1993
- Related Services
any related service such as implementation and integration, consulting, support, and/or training that we agree to provide to you under these Terms
- Personal Information
has the meaning given in the New Zealand Privacy Act 1993
- SaaS Service
the service [known as Spectral Element] having the functionality provided by us to assist you to manage portfolios, projects and tasks, using a variety of interfaces
the SaaS Service, any Related Service, and the Support Services.
- Spectral Solutions Software
the software owned by us (and our licensors) that is used to provide the SaaS Service
- Start Date
the date that you first use the SaaS Service or a Related Service.
- Support Services
the services referred to in clause 10
these main terms titled Spectral Solutions SaaS terms and any other terms incorporated by reference
- Underlying Systems
the Spectral Solutions Software, IT solutions, systems and networks (including software and hardware) used to provide the Services, including any third party solutions, systems and networks.
- we, us or our
Spectral Solutions Limited, a limited liability company of New Zealand, company number 5605050.
the internet site at www.spectralelement.com, or such other site notified to you by us.
a 12 month period starting on the Start Date or the anniversary of that date
- you or your
you or, if clause 1.1b applies, both you and the other person on whose behalf you are acting.
3.2 Interpretation: In these Terms
- a) clause and other headings are for ease of reference only and do not affect the interpretation of these Terms
- b) words in the singular include the plural and vice versa
- c) a reference to
- 1- a party to these Terms means your or us, and includes that party’s permitted assigns;
- 2- personnel includes officers, employees, contractors and agents, but a reference to your personnel does not include us;
- 3- 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;
- 4- including and similar words do not imply any limit; and
- 5- 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;
- d) no term of these Terms is to be construed against a party because the term was first proposed or drafted by that party; and
- e) if there is any conflict between these main terms titled Spectral Solutions SaaS terms and any other terms incorporated by reference, these main terms titled Spectral Solutions SaaS terms prevail unless expressly stated otherwise.
4 Beta Versions
4.1 Offer of Beta Version: Where we have identified a version of the SaaS Service as a Beta Version, that Beta Version is provided to you on these Terms, subject to the modifications set out in the remainder of this clause 4
4.2 As is basis: The Beta Version is provided by us to you on an as is basis, and, despite any other provision in these Terms, all conditions, warranties, guarantees and indemnities in relation to the Beta Version (including in relation to any Related Services and the Support Services) are excluded by us to the fullest extent permitted by law.
4.3 Fees: The Beta Version is provided to you without charge and the Fees set out elsewhere in these Terms do not apply to your use of the Beta Version under this clause 4.
4.4 Feedback: In return for the right to use the Beta Version, you agree to provide us, if we so request, reasonable feedback on the Beta Version (including any Related Services and the Support Services) and its performance. You agree to keep any feedback on the Beta Version confidential.
4.5 Purpose and termination: Despite any other provision in these Terms:
- a) the Beta Version is provided to you for the purposes of reasonable trial only
- b) we may terminate or suspend your access to the Beta Version at any time and for any reason without liability of any kind to you; and
- c) unless terminated earlier in accordance with these Terms, your right to use the Beta Version terminates automatically on the expiry of  months from your first use of the Beta Version
4.6 No obligation: Nothing in these Terms in relation to any Beta Version imposes any obligation
- a) on you, at the termination or expiry of your use of the Beta Version, to sign up to the paid-for version of the SaaS Service or any other service provided by us;
- b) on us, at the termination or expiry of your use of the Beta Version, to provide the paid-for version of the SaaS Service or any other service; or;
- c) on us to maintain any feature of the Beta Version in any paid-for version of the SaaS Service or any other service;
5.1 General: We will use best efforts to provide the Services:
- a in accordance with these Terms and New Zealand law;
- b exercising reasonable care, skill and diligence; and
- c using suitably skilled and experienced personnel.
5.2 Non-exclusive: Our provision of the Services to you is non-exclusive. Nothing in these Terms prevents us from providing the Services to any other person.
- a Subject to clause 5.3b, we 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. We will use reasonable efforts to notify you by posting a notice on the Website, or by sending you an email, advance details of any unavailability
- b Through the use of web services and APIs, the SaaS Service interoperates with a range of third party service features. We do 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, we may cease to make available that feature to you. To avoid doubt, if we exercise this right to cease the availability of a third party feature, you are not entitled to any refund, discount or other compensation
5.4 Related Services
- a We may, from time to time, make available related services to supplement the SaaS Service.
- b At your request and subject to you paying the applicable Fees, we may agree to provide to you a Related Service on the terms of these Terms.
6 Client Obligations
6.1 General Use: You and your personnel must
- a use the Services in accordance with these Terms solely for:
- i your own internal business purposes; and
- ii lawful purposes (including complying with the Unsolicited Electronic Messaging Act 2007); and
- b not resell or make available the Services to any third party, or otherwise commercially exploit the Services and
- c ensure all personnel, including but not limited to, employees, contractors or other users, comply with terms equivalent to these Terms
6.2 Account ID:
- a We will issue you with an Account ID so that you may access and use the SaaS Service
- b Without limiting any of your other obligations, your rights to access and use the SaaS Service under these Terms is dependent on you being, or being linked with, an entity that we have authorised to use the SaaS Service, and in relation to any Beta Version is additionally dependent on that entity having no more than 10 users.
- c You and your personnel must keep your Account ID secure and
- i not permit any other person to use your Account ID, including not disclosing or providing it to any other person; and
- ii immediately notify us if you become aware of any unauthorised use or disclosure of your Account ID, by sending an email to [email@example.com].
6.3 Access Conditions: When accessing the SaaS 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 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;
- e not attempt to view, access or copy any material or data other than that to which you are authorised to access;
- f 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
- g not copy, reproduce, translate, decompile, reverse-engineer, resell, modify, vary, sub-licence or otherwise deal in the whole or any part of the SaaS Service or the Underlying Systems, except:
- i as expressly provided for in these Terms; or
- ii to the extent expressly permitted by any law or treaty that is in force and cannot be excluded, restricted or modified by these Terms.
6.4 Personnel: A breach of any term of these Terms by your personnel is deemed to be a breach of these Terms by you.
6.5 Authorisations: You are responsible for procuring all licences, authorisations and consents required for you and your personnel to use the Services, including to use, store and input Data into, and process and distribute Data through, the Services
7.1 Our Access to Data:
- a You acknowledge that:
- i we may require access to the Data to exercise our rights and perform our obligations under these Terms; and
- ii to the extent that this is necessary but subject to clause 12, we may authorise a member or members of our personnel to access the Data for this purpose.
- b You must arrange all consents and approvals that are necessary for us to access the Data as described in clause 7.1a.
- a You acknowledge and agree that to the extent Data contains Personal Information, in collecting, holding and processing that information through the Services, we are acting as your agent for the purposes of the Privacy Act 1993 and any other applicable privacy law.
- b 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.
7.3 Backups of Data While we will take standard industry measures to back up all Data stored using the Services, you agree to keep a separate back-up copy of all Data uploaded by you onto the SaaS Service.
7.4 International storage of Data You agree that we may store Data (including any Personal Information) in secure servers in New Zealand and overseas territories, as set out in clause 8.7, and may access that Data (including any Personal Information) in New Zealand and those overseas territories from time to time.
7.5 Indemnity 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.
8.1 Your Personal Information: You are not required to provide your Personal Information to us, although if you choose not to do so then:
- a you may be unable to register an account with us and in that case we will be unable to provide the Services to you; or
- b we may be unable to make available certain features of the Services to you
8.2 Privacy Act 1993: When you provide Personal Information to us, we will comply with the New Zealand Privacy Act 1993
8.3 How we collect your Personal Information: We collect Personal Information about you from:
- a you, when you provide that Personal Information to us, including through:
- i the process of your registration of an account with us
- ii specific communication tools provided within the Services that you choose to use (e.g. feedback forms); and
- iii through any other contact with us (e.g. by email);
- b you, when you use the Services, using logs and other tools within the Services that enable us to gauge levels of engagement of users with the various features of the Services; and
- c third parties, where you have authorised this or the information is publicly available.
8.4 How we use your Personal Information: The Personal Information you provide to us (including any information you provide if you register an account with us) is collected and may be used for:
- a providing the Services to you;
- b monitoring and improving the Services;
- c communicating with you, including to respond to communications from you;
- d undertaking credit checks of you (if necessary);
- e billing you and collecting money that you owe us, including authorising and processing credit card transactions;
- f conducting research and statistical analysis (on an anonymised basis);
- g marketing by us of products and services to you;
- h protecting and/or enforcing our legal rights and interests; and
- i for any other purpose set out in these Terms, in the Services, or authorised by you or the Privacy Act 1993.
8.6 How we disclose your Personal Information: Generally, we do not disclose Personal Information to third parties for them to use for their own purposes. However, some of the circumstances in which we may do this are:
- a to service providers and other persons working with us to make the Services available or to develop its functionality;
- b in relation to the proposed purchase or acquisition of our business or assets; or
- c where required by applicable law or any court, or in response to a legitimate request by a law enforcement agency.
8.7 International storage of Personal Information: We use a trusted third party data storage service provider (currently, Amazon Web Services) to store data. We may store (including via that third party data storage service provider) your Personal Information, and any Data (including any Personal Information), in secure servers in New Zealand and overseas territories (currently, primarily Australia), and may access your Personal Information, and that Data (including any Personal Information), in New Zealand and those overseas territories from time to time.
8.8 Access and correction: You have the right to request access to and correction of any of the Personal Information we hold about you. If you would like to exercise these rights, please email us at [firstname.lastname@example.org].
9.1 Fee Structure: Our fee structure is specified on our Pricing Page. Fees are payable by the pre-defined due date that will be specified in our payments terms that are provided at the time of subscription to a Spectral Solutions service
10 Support Services
10.1 Compliance with Terms: Provided you have complied with, and are continuing to comply with, these Terms (including having paid all Fees due), we will provide to you the Support Services in accordance with this clause 10.
10.2 SaaS Service failure: Where you consider (on reasonable grounds) that the SaaS Service is not materially performing in conformity with these Terms, you may log a support request with us through one of the following channels:
- email: email@example.com; or
- Online Ticket: via the 'Report Issues' function within Spectral Element
10.3 Support Services: On receipt of a support request, we will
- provide email support in the form of consultation, assistance and advice; and
- use reasonable efforts to assist in the resolution of the issue (taking into account the nature and severity of the issue).
10.4 Conditions: The provision of the Support Services by us is conditional on you
- first using reasonable efforts to resolve the issue by referring to our online assistance tools, e.g. the Element Guide; and
- contacting us during our business hours (Monday to Friday from [8.30am] to [5.00pm], excluding Saturdays, Sundays and public holidays in Auckland, New Zealand via one of the channels set out in clause 10.2.
10.5 Exclusions: Nothing in these Terms requires us to provide Support Services where the support is required as a result of a breach of these Terms by you or your personnel, including use of the SaaS Service by you or your personnel in a manner or for a purpose not reasonably contemplated by these Terms or not authorised in writing by us
11 Intellectual Property
- a) Subject to clause 11.1b, title to, and all Intellectual Property Rights in, the Services, the Website, and all Underlying Systems is and remains the property of us (and our licensors). You must not dispute that ownership.
- b) Title to, and all Intellectual Property Rights in, the Data (as between the parties) remains the property of you. You grant us 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 our rights and performance of our obligations in accordance with these Terms.
11.2 Know-how: To the extent not owned by us, you grant us a royalty-free, transferable, irrevocable and perpetual licence to use any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by us in the provision of the Services.
11.3 Feedback: If you provide us with ideas, comments or suggestions relating to the Services or Underlying Systems (together feedback):
- a) 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.
11.4 Third party sites and material: You acknowledge 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 our endorsement, approval or recommendation of, or 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.
11.5 Third party Intellectual Property Rights indemnity:
- a) We indemnify you against any claim or proceeding brought against you to the extent that claim or proceeding alleges that your use of the SaaS Service in accordance with these Terms constitutes an infringement of a third party’s Intellectual Property Rights (IP Claim). The indemnity is subject to you:
- i promptly notifying us in writing of the IP Claim;
- ii making no admission of liability and not otherwise prejudicing or settling the IP Claim, without our prior written consent; and
- iii giving us complete authority and information required for us to conduct and/or settle the negotiations and litigation relating to the IP Claim. The costs incurred or recovered are for our account.
- b) The indemnity in clause 11.5a does not apply to the extent that an IP Claim arises from or in connection with:
- i your breach of these Terms;
- ii use of the SaaS Service in a manner or for a purpose not reasonably contemplated by these Terms or otherwise not authorised in writing by us; or
- iii any third party data or any Data.
- c) If at any time an IP Claim is made, or in our reasonable opinion is likely to be made, then in defence or settlement of the IP Claim, we may (at our option):
- i obtain for you the right to continue using the items which are the subject of the IP Claim; or
- ii modify, re-perform or replace the items which are the subject of the IP Claim so they become non-infringing.
12.1 Security: 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, the provisions of clauses 12.1a and 12.1b.
12.2 Permitted disclosure: The obligation of confidentiality in clause 12.1a does not apply to any disclosure or use of Confidential Information
- a) for the purpose of performing these Terms or exercising a party’s rights under these q 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 to these Terms 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 its 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 12.
13.1 Mutual warranties: Each party warrants that it has full power and authority to enter into and perform its obligations under these Terms which, when accepted, will constitute binding obligations on the warranting party.
13.2 No implied warranties: 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 under the Sale of Goods Act 1908) are expressly excluded and, to the extent that they cannot be excluded, liability for them is limited to NZD100.00; and
- b) we make no representation concerning the quality of the Services and do not promise that the Services will:
- i contain any or all of the same or similar features to any Beta Version that we may have offered, whether or not you have accessed and used any such Beta Version of the SaaS Service;
- ii meet your requirements or be suitable for a particular purpose, including that the use of the Services will fulfil or meet any statutory role or responsibility you may have; or
- iii be secure, free of viruses or other harmful code, uninterrupted or error free.
13.3 Consumer Guarantees Act: You agree and represent that you are acquiring the Services, and entering these Terms, for the purpose of a business and that the Consumer Guarantees Act 1993 does not apply to the supply of the Services or these Terms.
13.4 Limitation of remedies: 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 Services again; and/or
- b) paying the costs of having the Services supplied again.
14.1 Maximum liability: Our maximum aggregate liability under or in connection with these Terms or relating to the Services, whether in contract, tort (including negligence), breach of statutory duty or otherwise, will not in any Year exceed an amount equal to the Fees paid by you under these Terms in the previous Year (which in the first Year is deemed to be the total Fees paid by you from the Start Date to the date of the first event giving rise to liability). The cap in this clause 14.1 includes the cap set out in clause 13.2a.
14.2 Unrecoverable loss: Neither party is liable to the other under or in connection with these Terms or the Services 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.
14.3 Unlimited liability:
- a) Clauses 14.1 and 14.2 do not apply to limit our liability:
- i under the indemnity in clause 11.5a; or
- ii under or in connection with these Terms for:
- personal injury or death
- fraud or wilful misconduct; or
- a breach of clause 12
- b) Clause 14.2 does not apply to limit your liability:
- i to pay the Fees;
- ii under the indemnity in clause 7.5; or
- iii for those matters stated in clause 14.3aii.
14.4 No liability for other’s failure: 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.
14.5 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 these Terms.
15 Term, Termination and Suspension
15.1 Duration: These Terms start on the Start Date and continue until terminated under clauses 4, 9.5b or this clause 15.
15.2 No fault termination: Either party may terminate these Terms on no less than  days’ prior notice to the other party.
15.3 Other termination rights:
- a) Either party may, by notice to the other party, immediately terminate these Terms if the other party:
- i breaches any material provision of these Terms 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;
- ii 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
- iii is unable to perform a material obligation under these Terms for 30 days or more due to Force Majeure.
- b) If the remedies in clause 11.5c are exhausted without remedying or settling the IP Claim, we may, by notice to you, immediately terminate these Terms.
15.4 Consequences of termination or expiry:
- a) Termination or expiry of these Terms does not affect either party’s rights and obligations that accrued before that termination or expiry.
- b) On termination or expiry of these Terms, you must pay all Fees for Services provided prior to that termination or expiry.
- c) 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 these Terms, 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.
- d) At any time prior to one month after the date of termination or expiry, you may request
To avoid doubt, we are not required to comply with clause 15.4di to the extent that you previously requested deletion of the Data.
- i a copy of any Data stored using the SaaS Service, provided that you pay our reasonable costs of providing that copy. On receipt of that request, we will provide a copy of the Data in a common electronic form. We do not warrant that the format of the Data will be compatible with any software; and/or
- ii deletion of the Data stored using the SaaS Service, in which case we will use reasonable efforts to promptly delete that Data.
15.5 Obligations continuing: Clauses which, by their nature, are intended to survive termination or expiry of these Terms, including clauses 4.6, 6.4, 7.2, 8.8, 9.4, 12, 13.2a, 14, 15.4, 15.5 and 16, continue in force.
15.6 Suspending access: Without limiting any other right or remedy available to us, we may restrict or suspend your access to the SaaS Service where
- a) you (including any of your personnel):
- b) necessary (in our reasonable opinion) to protect or limit damage to the integrity or security of the Services, or to protect or minimise harm to the safety of any person.
- undermine, or attempt to undermine, the security or integrity of the SaaS Service or any Underlying Systems;
- use, or attempt 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; or
- iii have otherwise materially breached these Terms (in our reasonable opinion); or
15.7 Notice: We will notify you where we restrict or suspend your access under clause 15.6
16.1 Good faith negotiations: Before taking any court action, a party must use best efforts to resolve any dispute under, or in connection with, these Terms through good faith negotiations.
16.2 Obligations continue: Each party must, to the extent possible, continue to perform its obligations under these Terms even if there is a dispute.
16.3 Right to seek relief: This clause 16 does not affect either party’s right to seek urgent interlocutory and/or injunctive relief.
17.1 Force Majeure: Neither party is liable to the other for any failure to perform its obligations under these Terms to the extent caused by Force Majeure, provided that the affected party:
- a) immediately notifies the other party and provides full information about the Force Majeure;
- b) uses best efforts to overcome the Force Majeure; and
- c) continues to perform its obligations to the extent practicable.
17.2 Rights of third parties: No person other than us and you has any right to a benefit under, or to enforce, these Terms.
17.3 Waiver: To waive a right under these Terms, that waiver must be in writing and signed by the waiving party.
17.4 Independent contractor: Subject to clause 7.2, we are an independent contractor of yours, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under these Terms.
17.5 Notices: A notice given by a party under these Terms must be delivered to the other party via email using the email address notified by the other party for this purpose. Our email address for notices is firstname.lastname@example.org
17.6 Severability: Any illegality, unenforceability or invalidity of a provision of these Terms does not affect the legality, enforceability or validity of the remaining provisions of these Terms.
17.7 Variation: Except as is provided for in clause 2.1, any variation to these Terms must be in writing and signed by both parties.
17.8 Entire agreement: These Terms set 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 these Terms that is not expressly set out in these Terms, and no such representation, warranty or agreement has any effect from the Start Date. Without limiting the previous sentence, you and we agree that sections 9, 12A and 13 of the Fair Trading Act 1986 do not apply to these Terms or their subject matter.
17.9 Subcontracting and assignment:
- a) 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. Any assignment, novation, subcontracting or transfer must be in writing.
- b) Any change of control of you is deemed to be an assignment for which our prior written consent is required under clause 17.9a. In this clause change of control means any transfer of shares or other arrangement affecting you or any member of your group which results in a change in the effective control of you.
17.10 Law: These Terms 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.