THE LEARNING WAVE LIMITED
TRADING TERMS AND CONDITIONS
These are the standard “terms and conditions” of The Learning Wave Limited (“TLW”) which form the basis upon which TLW will provide you with the Services. These terms and conditions will apply unless varied by TLW and you, as Client, in writing.
Any instructions received by TLW for the provision of Services to you and any acceptance by you by entering into an agreement for those services constitutes acceptance by you of these terms and conditions, confirms that you have received a copy of these terms and conditions and confirms that you understand these terms and conditions.
“Agreement” means this document together with any variations thereof agreed in writing between the parties;
“Commencement Date” means the date upon which this Agreement commences and as defined in the Services Details section of the Agreement;
“Confidential Information” means:
(i) Information and data of whatever nature which is obtained by the Receiving Party or any of its Related Parties relating to either (a) the Purpose or (b) the Disclosing Party or any of its Related Parties; either in written form or other permanent form, or orally, from the Disclosing Party or any of its Related Parties whether marked confidential or not;
(ii) Analyses, compilations, studies, reports and other documents prepared by the Receiving Party or any of its Related Parties which contain or otherwise reflect or are generated from any information arising during the term of and out of this Agreement and the parties’ relationship arising from the Agreement; and
(iii) The terms of this Agreement and the interest of the Disclosing Party or any of its Related Parties in connection with the Purpose and any other related transactions;
“Client” means the party engaging TLW either personally or as authorised agent for the provision of Services and who is bound by these terms and conditions including, as applicable, clients of the Client who are in direct receipt of the Services, advisors, shareholders, directors, agents or consultants. For the avoidance of doubt, the defined term “Client” includes employees of the Client where those employees are receiving the benefit of the Services and the applicable obligations contained in these Terms and Conditions will apply at all times to those employees;
“Default Interest” means the interest payable by the Client upon demand from TLW for any breach by the Client of applicable payment obligations under this Agreement at a rate of 5% above the current overdraft interest then charged by the trading bank of TLW;
“Disclosing Party” means the party disclosing Confidential Information to the Receiving Party;
“Good Industry Practice” means exercise of that degree of skill, diligence and prudence that would reasonably be expected from a provider of services in New Zealand that are substantially similar to the Services;
“GST” means goods and services tax within the meaning of the Goods and Services Tax Act 1985;
“Intellectual Property” means all patents, copyrights, trademarks, domain names, design rights, trade secrets, know-how, confidential information, systems, databases, operating manuals, methodologies, processes, computer programs, graphics and data (in any form or format) or other industrial or intellectual property, whether registered or not, subsisting anywhere in the world and as may be listed in the Services Details section of the Agreement;
“Personal Information” means any information about the Client and includes but is not limited to its name, address, email address, telephone numbers, other observations where an individual is identified, and commercial information and financial information collected by TLW during the receipt of the Clients instructions and during the provision of the Services and any advice provided by TLW;
“Privacy Act” or “Privacy Principles” means the Privacy Act 1993 and/or the 12 Privacy Principles (Purpose of collection of personal information, Source of personal information, Collection of information from subject, Manner of collection of personal information, Storage and security of personal information, Access to personal information, Correction of personal information, Accuracy, etc., of personal information to be checked before use, Agency not to keep personal information for longer than necessary, Limits on use of personal information, and the Limits on disclosure of personal information and Unique identifiers) (as applicable);
“Privacy Statement” means the Privacy Statement of TLW found on its website at (www.the learningwave.com);
“Receiving Party” means the party receiving Confidential Information from the Disclosing Party;
“Related Party” means any person that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with a party. A person shall be deemed to control another person, for the purposes of this definition, if the first person possesses, directly or indirectly, the power to appoint a majority of the directors of the second person or to otherwise direct, or cause the direction of, the management or policies of the second person, whether through ownership of voting, securities, by contract, or otherwise. For clarity, the definition above will include the directors, officers, advisers, agents, employees, consultants or contractors of a Party and includes persons who, at the time they perform an act under this Deed or occupy any of these positions in relation to any member of that group or company.
“Services” means the agreed learning and or organisational development solutions provided by TLW and as requested by the Client to the Client and as are defined in the Services Details section of the Agreement and may if circumstances require include the outcomes of those Services.
“Term” means the period for the provision of the Services under this Agreement as is defined in the Services Details section of the Agreement.
2. APPOINTMENT AND OBLIGATIONS
2.1. Performance: The Client appoints TLW and TLW accepts the Client’s appointment to provide the Services. TLW must perform the Services or as otherwise agreed between the parties in writing from the Commencement Date, during the Term.
2.2. Obligations: TLW must, during the term of this Agreement:
(a) perform the Services to Good Industry Practice and to promote and further the interests of TLW and the Client;
(b) not delegate or have any other person perform its obligations under this Agreement, or appoint any subcontractor, without the prior written consent of the Client;
(c) subject to the provision by the Client of any specific equipment and resources, (as particularised further in the Services Details section) provide, at its own cost, all equipment and resources necessary to enable TLW to perform its obligations under this Agreement;
(d) comply with all relevant laws applicable to the conduct of the Services and the operation of any equipment used in the performance of the Services;
(e) work with the employees of the Client, as required, in a competent and professional manner;
(f) comply with the Client’s reasonable directions and instructions in relation to the performance of the Services;
(g) regularly report to the Client regarding the provision of the Services; and
(h) allow the Client reasonable access to any records relevant to the provision of the Services.
3. ACKNOWLEDGEMENTS BY CLIENT AS TO FITNESS FOR PURPOSE
3.1. Other than as acknowledged in writing by TLW, the Client acknowledges that the Client does not rely on the skill or judgement of TLW regarding the fitness of the Services for any purpose that the Client has not made known to TLW, or to any employee or agent of TLW for any purpose for which the Services are required.
4. GST INVOICES
4.1. Invoices: TLW will invoice the Client on the provision of the Services or as otherwise set out in the Services Details section of this Agreement. The Client will pay all amounts payable under this Agreement to TLW on the 20th day of the month immediately following the receipt of the invoice from TLW. The Client will reimburse TLW for any agreed expenses incurred by TLW in performing the Services in accordance with the provisions of the Services Details section of this Agreement.
4.2. Tax Invoice: TLW must provide the Client with a valid tax invoice for all fees for the Services on the dates or at times specified in the Services Details section of this Agreement.
4.3. Details: The tax invoice must be dated, contain TLW’s name address and GST number, be identified as a tax invoice and clearly note all GST due. If TLW claims any expenses they must be verified by supporting GST receipts.
5. PAYMENT BY CLIENT OF AMOUNTS DUE
5.1. The Client will duly and punctually and without demand pay and satisfy to TLW the payments mentioned in the Services Details section of this Agreement (“credit details” and “payments” sections) by:
(a) paying any deposit or portion of the deposit mentioned in the Services Details section of this Agreement (“credit details” section) to TLW at the time the Client signs this Agreement; and
(b) paying the payments mentioned in the Services Details section of this Agreement. (“payments” section) by the instalments and in the manner set out the Services Details section of this Agreement to TLW or to any other person or at any other place as TLW may designate from time to time by notice in writing served on the Client.
5.2. All payments must be made without deduction, counterclaim or set off and notwithstanding any damage to or loss of the Services.
5.3. The Client will execute any instruments providing for payment of the payments mentioned the Services Details section of this Agreement, which TLW may from time to time request. Those instruments may include an authority or direct debit.
5.4. TLW will credit each payment accepted by TLW (other than a full prepayment) to the Client’s account, either (at the discretion of TLW):
(a) as soon as practicable after TLW receives the payment; or
(b) in accordance with dates listed in any schedule of payments mentioned the Services Details section of this Agreement, regardless of whether the payment is of an amount that is equal to the amount of the next scheduled payment.
5.5. TLW will credit any full prepayment to the Client’s account as soon as reasonably practicable after TLW receives the full prepayment.
5.6. Where payments are received from the Client and subsequently dishonoured by the Client’s bankers, any credit to the Client’s account which was affected by TLW will be reversed, as if the payment had not been made, and a reasonable dishonour fee will be payable by the Client as demanded by TLW to adequately compensate TLW’s costs as well as the administration involved.
5.7. Except where it is TLW’s fault, if any money payable to TLW pursuant to this Agreement is not paid on a due date then the Client agrees to pay to TLW interest on such money at the Default Interest rate, for the period from the due date for payment until payment is made. Interest will be calculated daily without prejudice to any of TLW’s rights and remedies will under the Agreement. The interest rate shall be the rate defined in Part Two.
6. INDEPENDENT CONTRACTOR
6.1. TLW is an independent contractor and is not an employee or agent of the Client. The parties acknowledge that the real nature of their relationship is that of independent contractor and principal and that TLW is in business on its own account. Accordingly, TLW shall be responsible for its own liability for tax, ACC levies, and all other liabilities and expenses, of whatever nature, relating to it. TLW hereby indemnifies and saves harmless the Client from all such taxes, levies and other expenses.
7. HEALTH AND SAFETY
7.1. TLW will be responsible for its own health and safety in areas upon which it has material control. TLW must comply with the Health and Safety at Work Act 2015 (“the Act”) any regulations made under that Act, and any health and safety policies, directives or procedures of the Client. However, if the Services are provided at the business premises of the Client then the Client must ensure that it satisfies its obligations as a person conducting its business or undertaking, in full compliance of the Act including but not limited to having effective practices in place for:
(a)Providing and maintaining:
(i) a work environment that is without risk to health and safety;
(ii) safe plant and structures;
(iii) safe systems of work;
(iv) adequate facilities for the welfare of workers at work;
(v) safe use, handling and storage of plant, substances and structures;
(vi) the provision of information, training, instruction or supervision that is necessary to protect people from risks to health and safety arising from the Services; and
(vii) monitoring the health of workers and the conditions at the workplace to prevent illness or injury to workers arising from the Services.
8.1. TLW shall immediately from the Commencement Date effect and maintain, if appropriate, comprehensive insurance cover with respect to the provision of the Services and will indemnify the Client and any employee’s, contractors or agents against any liability loss damage or expense of any nature arising out of any unlawful, negligent, or wilful act or omission by TLW (providing this was not outside the control of TLW).
9. INSPECTION AND TESTING
9.1 The Client will permit TLW and any persons authorised by TLW to have access to the Services at all reasonable times for testing or inspecting the Services. The Client will at any time upon request by TLW produce the Services or allow access thereto for this purpose.
10.1. TLW may at any time at law or in equity assign (whether absolutely or by way of mortgage) all or any part of its rights, title, benefits, interest in or under this Agreement.
10.2. The Client may not at any time assign all or any part of its rights, title, benefits, interest in or under this Agreement without the written consent of TLW, such consent to not be unreasonably withheld.
11.1. The Parties agree that all information acquired by the Receiving Party from the Disclosing Party shall be treated as confidential and shall not be disclosed in whole or in part by that party to any third person without the prior written consent of the Disclosing Party, except:
(a) Implementation: to ensure the expedient operation of this Agreement;
(b) Law: to the extent required to be disclosed by any law applicable to that Party, or by any authority or regulatory body having jurisdiction over that Party (including any stock exchange);
(c) Public Domain: where such information becomes part of the public domain other than by the default of that Party; or
(d) Review: where it is reasonably required for review by any adviser, consultant, expert, contractor or subcontractor employed or retained by the Party who is bound by appropriate professional or contractual confidentiality obligations.
11.2. The Parties will not (except as may be required by law or by any Stock Exchange) make any announcement or disclosure regarding the existence of this Agreement or its subject matter except in a form and manner and when the Parties shall agree upon.
11.3 Notwithstanding the provisions of this term, the Client acknowledges and gives consent to the sharing of certain Confidential Information to project funders of TLW (where such reporting is a material condition of those funding requirements) regarding the provision of the Services.
12. PROTECTION OF INTERESTS
(a) The Client fails to perform any obligation on the Client’s part contained or implied in this Agreement; or
(b) TLW considered it necessary or desirable to pay any money or incur any expense (whether in respect of the repossession of the Services or any part thereof or otherwise) to protect its interests under this Agreement;
then TLW may perform that obligation, pay that money, or incur that expense and any money paid or expense incurred by TLW for any of those purposes will be payable by the Client to TLW upon demand by TLW.
12.2. The Client will indemnify TLW against every claim by any person relating to the Services under their control and or the use thereof.
12.3. The Client will indemnify TLW if TLW incurs any liability against every claim by any person relating to the Services under their control and or the use thereof.
12.4. In the event that TLW incurs any liability or expense in respect of the Services pursuant to the terms and obligations of this Agreement (other than that which could at the time of this Agreement reasonably be expected to be incurred in respect of the Services or as a result of this Agreement) then the amount of that liability or expense will be payable by the Client to TLW upon demand by TLW.
13.1. Variations of the Agreement must be in writing signed by both TLW and the Client, and variations will not prejudice or affect any other provisions of this Agreement.
14.1. TLW warrants and undertakes to the Client throughout the Term, that the provision of the Services will not cause TLW to breach any obligation to any third party or any other legal obligation whatsoever, that it has full power capacity and authority to perform its obligations under this Agreement and it will continue, during the term of this Agreement, to have all necessary approvals and consents required to enable the provision of the Services.
14.2. TLW warrants and undertakes to the Client throughout the Term, that if there is any defect in the Services that becomes apparent and is reported to them then TLW will attend to rectifying such defect as soon as is reasonably possible.
14.3. These warranties shall not cover any defect or damage to the Services which may be caused or partly caused by or arising through:
(a) failure on the part of the Client to properly use or maintain the Services;
(b) failure by the Client to properly follow any instructions or guidelines provided by TLW;
(c) using the Services for any purpose otherwise than the application for which they were provided by TLW to the Client;
(d) the use of any part of the Services after it becomes apparent to a prudent user that there is a defect; and
(e) fair wear and tear, accident or act of God.
14.4. The Client warrants and undertakes that it has full power capacity and authority to perform its obligations under this Agreement and it will continue during the Term to have all necessary approvals and consents required to enable the provision of the Services.
15. EVIDENCE OF UNPAID BALANCE AND OTHER AMOUNTS DUE
15.1. A statement of account made up from TLW’s books and signed by or behalf of any attorney for the time being of TLW will be conclusive evidence of the amount due or unpaid by the Client to TLW or received from the Client or held by TLW on the Client’s behalf.
16. SET OFF
16.1. TLW will have a right of set-off and be entitled, at TLW’s sole discretion, to exercise that right as between money owed to or money or property claimed by the Client on the one hand any debt or liability of the Client to TLW on any account however arising on the other hand. The Client will not have any right of set-off for any money owed to, or money or property claimed by, TLW against any debt or liability of TLW to the Client in any capacity or on any account whatsoever.
17.1. In addition to the provisions of Term 11 of these Terms and the Privacy Statement (which the Client confirms that it has read), the Parties’ acknowledge the further privacy provisions set out herein.
17.2. The Client authorises TLW to collect such Personal Information from third parties, including credit reference agencies, as may be required by TLW, in connection with the Client’s application for the Services and any other dealings of whatever nature that the Client may have with TLW. However, TLW is only authorised to acquire the Client’s Personal Information if it is relevant to achieving the outcome to which TLW and the Client have contracted for.
17.3. TLW may store Personal Information collected in any format it deems most appropriate at its offices or at premises outside its offices, including data storage facilities or online storage located within New Zealand which may be operated by independent service contractors. It remains the responsibility of TLW, pursuant to Privacy Principle 5, to ensure the safety and protection of the Personal Information.
17.4. Purposes for which Personal Information may be used by TLW:
(i) to represent and advise the Client;
(ii) for dealing with commercial or legal conflicts;
(iii) to send to the Client communications relating to future publications and invitations to seminars and functions;
(iv) to provide the Client with access to a client extranet website;
(v) for the purposes of confidential analysis and critical review to enable the improvement of Services, for use in industry education, the provision of submissions and reviews to regulatory and compliance bodies and improvement of any future product development;
(vi) for internal business purposes such as invoicing and receipting, making payments to the Client or on its behalf and debt recovery (which may involve disclosing information to debt collectors); and
(vii) for specific purposes advised to the Client or to which the Client authorises.
17.5. TLW may process Personal Information based upon the Client’s written or oral consent. The client must, always provide TLW with current and accurate Personal Information. The Client may withdraw its consent at any time. The withdrawal of consent will not affect the lawfulness of processing based on consent before its withdrawal.
17.6. TLW may need to disclose Personal Information to third parties (including other entities or individuals who assist it in providing services or who perform functions on its behalf, such as hosting and data storage providers as well as Government agencies, including but not limited to the New Zealand Qualifications Authority and the Tertiary Education Commission), including during representing or advising the Client. TLW may disclose Personal Information if:
(i) it is required or authorised by the Client;
(ii) it is required by law (including the laws of any foreign jurisdiction enforceable in New Zealand);
(iii) it is lawfully required by any government body or agency as defined in Term 17.6.
17.7 TLW will hold all Personal Information according to the Privacy Principles. The Privacy Principals allow, amongst other things, the right of the Client to access and request correction of the Client’s Personal Information.
17.8. TLW works with partners who from time to time assist in improving TLW’s business services and operation. All Personal Information used for statistical and measurement purposes, research and academic purposes that is shared by TLW with those partners shall only be done on an anonymous basis and the Client authorises TLW to disclose Personal Information to those partners provided information does not identify the client.
17.9. In the event that a change of ownership or control of all or part of TLW should occur, the Personal Information of the Client shall be assigned to the third party acquiring that ownership or control and subject to these terms and conditions.
17.10. TLW may disclose Personal Information when it, in good faith believes that such disclosure is necessary to detect fraud, unauthorised use of the Services, money laundering or other illegal activity, to protect the rights/property/Services of TLW, including but not limited to the investigations of regulatory agencies and the prevention of imminent harm.
18. ELECTRONIC COMMUNICATIONS
18.1. Unless otherwise agreed, TLW may communicate with the Client and third parties at various times by electronic communication. These communications may at times be corrupted by interception or interference from other parties and may contain viruses or other defects. TLW does not accept any responsibility nor are they liable for any claim for damages in connection with such occurrences.
19.1. Either party may terminate this Agreement immediately by giving written notice to the other if there is an Event of Default as is defined in Term 21 of these Terms and Conditions.
19.2. Upon the expiry or termination of this Agreement the following shall occur:
(i) the Client must pay TLW any amount outstanding in terms of this Agreement;
(ii) the Client must immediately cease using any Intellectual Property or Confidential Information;
(iii) the Client shall immediately cease using anything relating to or purporting to be the Services;
(iv) the Client shall immediately return to TLW all copies of the Intellectual Property or Confidential Information;
19.3 TLW shall not be liable to the Client for damages of any kind including consequential damages because of termination of this Agreement.
20. EVENT OF DEFAULT
(i) the outstanding amount of any debt applying to the Services, any fees and all interest, (whether accrued or compounded) and all solicitor/client costs, shall (if not already due) be due and payable immediately; and
(ii) all charges and other security interests created by this Agreement and the securities will become immediately enforceable (without notice to or the consent of the Client); and
(iii) this Agreement may be terminated upon a party providing the other party with a written Notice of Termination stating the valid grounds for termination. Any obligations of a Party at the date of termination shall not merge at the date of termination.
(i) any debt in accordance with the terms of the Agreement; any fees and all interest, (whether accrued or compounded) and all solicitor/client costs are not paid on the due date;
(ii) either Party fails to observe, perform and comply with any of its material obligations contained or implied in this Agreement and after a written notice requiring the breach to be rectified within fourteen (14) working days expires;
(iii) either Party commits, or any steps are taken which might lead to any act of bankruptcy, or, a receiver or liquidator is appointed, or the entity fails to satisfy the solvency test as that term is described in the Companies Act 1993;
(iv) the Client (if a person) dies;
(v) any representation or warranty made or otherwise given in the Client’s application for the provision of the Services by TLW, any quotation or other document in relation to the Services, or as otherwise contained in this Agreement, is found to be incorrect;
(vi) the Services (or any material part) is taken by the operation of any principle of law or otherwise;
(vii) there is a material reduction in value of any of the Services; or
(viii) there is a material adverse change in the financial condition of the Client which in the reasonable opinion of TLW may have a detrimental effect on the Client, or the willingness or ability of the Client to pay or satisfy any obligations contained in this Agreement, any fees and all interest (whether accrued or compounded) and all solicitor/client costs.
21. LIMITATION OF LIABILITY
21.1. To the extent permitted by law, the liability of TLW is, to the Client whether in contract, equity or otherwise, arising out of our Services is limited to the greater of the amount payable under any contract of insurance or an amount equivalent to 50% of the Service fee or $400,000 whichever sum is the lower.
22. INTELLECTUAL PROPERTY
22.1 The Parties acknowledge that:
(a) All Intellectual Property which comes into existence because of work performed by the parties during the Services (including without limitation any copyright or other intellectual property rights which may subsist in such property shall belong to TLW and all rights, title and interest in such property shall vest in TLW as and when such property comes into existence. TLW shall be responsible for ensuring that all personnel engaged by it to perform the Services supply their services in a manner that achieves the foregoing result. Each party may at any time (including after the termination of the Services) execute and procure the execution by its employees and contractors of documentation required by the other for confirming the ownership rights granted by this Term.
(b) The Parties agree and acknowledge that the provider of Intellectual Property and Confidential Information (the Provider) shall remain the owner of all Intellectual Property, Confidential Information, data and documentation that may be provided to the recipient of such information (the Recipient) by the Provider pursuant to this Agreement and the Recipient shall not deal with such Intellectual Property, Confidential Information, data or documentation in a manner which is contrary to provider’s interest and in particular, shall not use, copy, disclose or dispose of any such Intellectual Property, Confidential Information, data or documentation except as necessary for the performance of obligations pursuant to this Agreement or with express prior written agreement of the Provider.
(c) Term 22 (b) shall not restrict the right of TLW to use ideas, concepts, knowledge or techniques developed by it in performing the Services in the provision of professional services for other customers, subject to the provisions of the agreement between the Client and TLW.
(d) Each party shall protect the Intellectual Property of the other and treat it as strictly confidential and shall prevent any disclosure use or exploitation thereof and shall not make any copies or records of any of the Intellectual Property for the benefit of any third party and it shall only use the Intellectual Property for the purpose that they were provided by the other.
22.2. The Parties acknowledge that any pre-existing intellectual property used in performing or because of the provision of the Services shall remain the sole property of the party that created this intellectual property.
22.3. The obligations contained in this term and in term 23 shall subsist indefinitely and shall not terminate upon completion or termination of the Services.
23. PROHIBITED USES
23.1. In addition to any other prohibitions as set forth in these terms, the Client or any Related Party is prohibited from using anything directly or indirectly associated with the Services or the Intellectual Property belonging to TLW without its direct written consent. This includes but is not limited to:
(a) infringe upon or violate the Intellectual Property rights of TLW;
(b) collect or track the personal information of others;
(c) interfere with or circumvent any security features of the Service or any related website, other websites, or the Internet;
(d) infer any connection of or approval from TLW in any prohibited use by the Client or Related Party of the Services; or
(e) undertaking any unauthorised act or omission in relation to the Services that has a material effect on the integrity of the Services or the reputation of TLW.
23.2. TLW reserves the right to terminate the Client’s use of the Services or anything related thereto without further notice should the Client carry out any of the prohibited uses.
24. CONSUMER GUARANTEES ACT 1993
24.1 If the Client is obtaining the Services provided under this Agreement for the purposes of business, then the Client agrees the provisions of the Consumer Guarantees Act 1993 will not apply to the provision of the Services by TLW under this Agreement.
25.1. Negotiation: Should any dispute or difference occur between the parties touching or arising out of this Agreement, the existence of such a dispute or difference shall be notified to the other party in writing and such difference or dispute shall be resolved in the first instance by good faith negotiations entered into between the parties for the purposes of reaching a resolution to the dispute.
25.2. Mediation: If the parties cannot in good faith reach an agreement to any dispute then:
(a) If, within fourteen (14) Working Days of any notice being received, should any dispute or difference remain outstanding or unresolved, that dispute or difference shall be referred to a single mediator to be agreed between those parties in dispute and failing agreement such single mediator as may be appointed by the President for the time being of the Auckland District Law Society or his or her nominee.
(b) The parties in dispute shall attend all meetings called by the mediator and at such meetings shall conduct the negotiations in good faith and use their best endeavours to reach an agreed solution which is acceptable to those parties.
- Unless expressly stated otherwise, any notice, request demand or other communication to be given to the Client shall be in writing which may be delivered by hand or sent by prepaid post, facsimile, or email to the address details for the Client as provided in the Services Details section; and
- Unless expressly stated otherwise, any notice, request, demand or other communication to be given to TLW shall be in writing which may be delivered by hand or sent by prepaid post, facsimile, or email to the address details for the Client as provided by the Client and set out in the Services Details section of the Agreement.
26.2. Receipt of Notices:
(a) Notices, requests, demands or other communications delivered or sent as aforesaid shall be deemed to have been received by the addressee:
(b) Where delivered by hand or sent by facsimile, or email: on the date of delivery or transmission, and
- Where sent by prepaid post: two (2) Working Days after posting unless received before that time.
27.1. Amendment: Except as otherwise provided in the Agreement, this Agreement may be amended, but only in writing signed by both parties.
27.2. Binding on Successors: This Agreement shall be binding on the parties and their respective permitted nominees, successors and assigns.
27.3. Partial Invalidity: The illegality, invalidity or unenforceability of a provision of this Agreement under any law is not to affect the legality, validity or enforceability of that provision under any other law or the legality, validity or enforceability of any other provision of this Agreement.
27.4. No Waiver: No failure or delay by any party to this Agreement to exercise any right under this Agreement shall operate as a waiver of that right, nor shall any single or partial exercise by any party to this Agreement of any right preclude any other or further exercise of that right or of any other right. The parties’ rights expressed in this Agreement are cumulative and do not exclude any rights provided by law.
27.5. No Merger: The warranties undertakings agreements covenants and indemnities given in this Agreement shall not merge on termination of this Agreement or a party ceasing to be bound by this Agreement but shall remain in full force and effect after that date to the extent they are intended to survive termination.
27.6 . Severability: The parties agree that, if for any reason any provision or stipulation contained herein shall be illegal, invalid or unenforceable, such provision or stipulation shall be severable from all other provisions hereof which shall be unaffected thereby.
28. GOVERNING LAW
28.1. This Agreement is to be governed by and construed in accordance with New Zealand law.