SaaS Agreement

SaaS agreement

Parkable Limited - Parkable for Business Saas Agreement

Section A: Agreement & Key Details

  1. The Supplier agrees to provide, and the Client agrees to buy, the ‘Parkable for Business’ Software as a Service offering, and related services, on the terms set out in these terms. These terms comprise:
  2. Section A (Agreement and Key Details, including this cover page and binding clauses) and;
  3. Section B (General Terms),

(“Agreement”)

  1. This Agreement applies to all services ("Services") provided or arranged by us, Parkable ("us", "we", “Supplier” or "Parkable") to or for you, the Client or operator of one or more parking spaces (each a "Parking Space") and/or recipient of the Services ("you", “Host” or the "Client").
  2. Please note that this Agreement only applies to the provision of Services directly by us to you. This Agreement does not apply to the use by third parties of the Parking Space itself. If applicable, the licensing of your Parking Space is dealt with under the terms of your Parking Space License Agreement with such third party Parkers ("Parkers").
  3. We reserve the right to amend this Agreement from time to time. Any amendments or new terms and conditions will be published on our Website. You may terminate this Agreement if you do not wish to be bound by any such amendments but by continuing to use our Website and/or Services you will be deemed to have accepted the amended/new Agreement.

Key Details

Pilot period

If you are carrying out a trial of the Parkable Service (as offered on the Website or the Parkable platform), the trial will begin on the day that your account is opened and end at the expiry of the published trial period. If you wish to continue to use the Parkable Services at the end of the trial period, you will need to provide valid credit card details (unless you choose to use any free Parkable Services which we may offer from time to time). If you choose not to continue with the Parkable Services, then your account (and all data associated with it) will be deleted after the end of the trial period. Data will be deleted after 30 days following the end of your trial period, unless we're required to retain it for longer under applicable law.

SaaS Service

The SaaS Service is provision of enterprise car park and commuter management software (named ‘Parkable for Business’) for the efficient use of car park assets and allows the Client (as Host) to offer car parking options to certain persons or organisations (as Parkers) who may, in turn, act as Host and offer car parking spaces to other persons or organisations (as Parkers).

The Saas Service and what is included is set out on the Website and will vary depending on the service plan chosen by the Client as set out in the SaaS Client Agreement. Depending on the plan, the SaaS Service may include provision of the following services:

  1. Remote implementation of the system for the Client’s properties.
  2. Ongoing software helpdesk and support during business hours (8:00am – 5:00pm NZT).
  3. Permitted user registration and provision of digital training material for users.

Related Services

The Client may elect to receive additional hardware upgrades which entails the supply and installation of car park hardware and software functionality. Such hardware and software upgrades shall be provided under the terms of the Agreement and shall include:

  • Implementation and integration
  • Training
  • Permitted user registration
  • Consulting
  • Ongoing helpdesk and support during business hours (8:00am – 5:00pm NZT)

To avoid doubt, additional Related Services may be requested by the Client during the term of the Agreement and additional Fees will apply to those services, according to the Fees set out on our website or our standard RateCard.

Fees and Payment Terms

The fees charged for use of the Parkable Services are set out on the Website (or as notified to you in the case of SaaS Client Agreements and some exclusive plans) (“Fees”) and are subject to change. Subject to clause 5.4 of the General Terms, we can change the Fees, and/or introduce new pricing packages and terms, at any time by giving you 30 days’ prior notice (by email to your Primary Admin or by displaying a message the next time you use the Parkable Services). The new Fees or pricing/package terms will apply to you from expiry of that notice, unless you choose to cancel your account before the changes take effect. New Fees will apply to you immediately if you choose to change your plan/package (or if you reactivate your plan after cancellation). Fees are charged in advance on a monthly basis and are non-refundable, including if you only use part of a months subscription for the Parkable Services. Unless required by law, we will not provide refunds in connection with the Parkable Services. A valid credit card number is required to pay all Fees.

Section B: General Terms

1. Interpretation

1. Definitions: In the Agreement, the following terms have the stated meaning:

Agreement

Section A (Agreement and Key Details, including the cover page and binding clauses) and Section B (General Terms).

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. Intellectual Property owned by the Supplier (or its licensors), including any software, is the Supplier’s Confidential Information. The Data is the Client’s Confidential Information.

Data

all data, content, and information (including Personal Information) owned, held, used or created by or on behalf of the Client that is stored using, or inputted into, the Services.

End Date

the end date set out in the SaaS Client Agreement.

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 worldwide rights 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 specific details set out in Section A of the Agreement.

Objectionable

includes being objectionable, defamatory, obscene, harassing, threatening, or unlawful in any way.

Payment Terms

the payment terms set out in the Key Details (if any).

Parkable for Business Software

the software owned by the Supplier (and its licensors) that is used to provide the SaaS Service.

Personal Information

has the meaning given in the NZ Privacy Act 1993.

RateCard

means the summary of certain of the Supplier’s fees applicable to Related Services as notified by the Supplier to the Client, on or about the date of the Agreement, and as updated from time to time.

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 Client Agreement

means the agreement entered into by Parkable and the Client setting out the specific details of the SaaS Services offered to the Client.

SaaS Service

the service having the core functionality described in the Key Details, the SaaS Client Agreement and the Website, as updated from time to time.

Services

the SaaS Service and any Related Service.

Start Date

the date specified in the SaaS Client Agreement or the day that your account is opened

Underlying Systems

the Parkable for Business software, IT solutions, systems and networks (including software and hardware) used to provide the Services, including any third party solutions, systems and networks.

Website

www.parkable.com

Year

a 12 month period starting on the Start Date or the anniversary of that date.

2. Interpretation: In the Agreement:

  1. clause and other headings are for ease of reference only and do not affect the interpretation of the Agreement;
  2. words in the singular include the plural and vice versa;
  3. a reference to:

    1. a party to the Agreement includes that party’s permitted assigns;
    2. personnel includes officers, employees, contractors and agents, but a reference to the Client’s personnel does not include the Supplier;
    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; and
  4. if there is any conflict between the SaaS Client Agreement, Section B and Section A of the Agreement, the SaaS Agreement prevails, then Section B, then Section A unless expressly stated otherwise..

2. Services

  1. General: The Supplier must use reasonable efforts to provide the Services:

    1. in accordance with the Agreement and New Zealand law;
    2. exercising reasonable care, skill and diligence; and
    3. using suitably skilled, experienced and qualified personnel.
  2. 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.
  3. Availability:

1. Subject to clause 2.3b, the Supplier will use reasonable efforts to ensure the SaaS Service is available during normal business hours in New Zealand. However, it is possible that on occasion the SaaS Service may be unavailable in order to permit maintenance, repairs or other development activity to take place, or in the event of Force Majeure. The Supplier will use reasonable efforts to publish on the Website advance details of any unavailability.

2. Through the use of web services and APIs, the SaaS Service may interoperate with a range of third party service features. The Supplier does not make any warranty or representation as to the availability of those features. Without limiting the previous sentence, if a third party provider ceases to provide a feature or ceases to make that feature available on reasonable terms, the Supplier may cease to make available that feature to the Client. To avoid doubt, if the Supplier exercises its right to cease the availability of a third party feature, the Client is not entitled to any refund, discount or other compensation.

3. The Supplier is responsible for procuring all Underlying Systems reasonably required for it to provide the SaaS Service in accordance with the Agreement.

4. Additional Related Services:

1. The Supplier may, from time to time, make available additional services to supplement the SaaS Service.

2. 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.

3. Client Obligations

1. General use: The Client and its personnel must:

1. use the Services in accordance with the Agreement solely for:

  1. the Client’s own business purposes; and
  2. lawful purposes (including complying with the Unsolicited Electronic Messaging Act 2007);

2. make all reasonable efforts to use the service in a best practice manner; and

3. not resell or make available the Services to any third party, or otherwise commercially exploit the Services.

2. Host and Parker Obligations: In the event the Client offers parking to its personnel or the general public though the software, then the Client agrees to be bound by Parkable’s general terms of service as they relate to both the Parker and Host which can be found here:

https://www.parkable.com/terms-of-service

To the extent there is a conflict with the Parkable terms of service and this Agreement, this Agreement shall prevail.

3. Access conditions: When accessing the SaaS Service, the Client and its personnel must:

  1. not impersonate another person or misrepresent authorisation to act on behalf of others or the Supplier;
  2. correctly identify the sender of all electronic transmissions;
  3. not attempt to undermine the security or integrity of the Underlying Systems;
  4. 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;
  5. not attempt to view or access any material or data other than that to which the Client is authorised to access;
  6. 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;
  7. not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer program used to deliver the SaaS Service except as is strictly necessary to use it for normal operation; and
  8. comply with any terms of use on the Website, as updated from time to time by the Supplier.

4. Personnel: A breach of any term of the Agreement by the Client’s personnel is deemed to be a breach of the Agreement by the Client.

5. Authorisations: The Client is responsible for procuring all licences, authorisations and consents required for it and its personnel to use the Services, including to use, store and input Data into, and process and distribute Data through, the Services.

4. Data

1. Supplier access to Data:

  1. The Client acknowledges that:

    1. the Supplier may require access to the Data to exercise its rights and perform its obligations under the Agreement; and
    2. 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.
  2. The Client must arrange all consents and approvals that are necessary for the Supplier to access the Data as described in clause 4.1a.

2. Agent:

  1. 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.
  2. 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.

3. Backups of Data: While the Supplier will take standard industry measures to backup all Data stored using the Services, the Client agrees to keep a separate backup copy of all Data uploaded by it onto the SaaS Service.

4. International storage of Data: The Client agrees that the Supplier may store Data (including any Personal Information) in secure servers in overseas territories and may access that Data (including any Personal Information) in such overseas territories and New Zealand from time to time.

5. 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.

5. Fees

1. Fees: The Client must pay to the Supplier the Fees.


2. Invoicing and payment:

  1. The Fees exclude GST, which the Client must pay on taxable supplies under the Agreement
  2. If paid via credit card the Fees will be deducted on the Start Date of the contract, and on that date of each following month, paying for the month in advance.
  3. If not paid via credit card, the Supplier will provide the Client with valid GST tax invoices on the dates set out in the Payment Terms or, if there are none, monthly in arrears for the Fees due in the previous month. The Client must pay the Fees:

    1. on the dates set out in the Payment Terms, or if there are none, by the 20th of the month following the date of invoice; and
    2. electronically in cleared funds without any set off or deduction.
  4. Any payments made in connection with the Services will be subject to deductions by Parkable in respect of any charges and fees applicable to the processing of payments by banks and other merchants (such as Stripe).

3. Overdue amounts: The Supplier may charge interest on overdue amounts. Interest will be calculated from the due date to the date of payment (both inclusive) at an annual percentage rate equal to the corporate overdraft reference rate (monthly charging cycle) applied by the Supplier’s primary trading bank as at the due date (or, if the Supplier’s primary trading bank ceases to quote that rate, then the rate which in the opinion of the bank is equivalent to that rate in respect of similar overdraft accommodation expressed as a percentage) plus 2% per annum.

4. Increases:

  1. By giving at least 30 days’ notice, the Supplier may increase the Fees once each Year (but not the first Year) by the percentage change in the New Zealand Consumer Price Index (or similar or equivalent index if that index ceases to be published) over the 12 months preceding the last quarterly publication of that index issued by Statistics New Zealand prior to the date of the notice, or as stipulated in the SaaS Client Terms. Fees updated under this clause are deemed to be the Fees listed in the Key Details.
  2. 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, unless stipulated otherwise in the SaaS Client Agreement. If the Client does not terminate the Agreement in accordance with this clause, it is deemed to have accepted the increased Fees.

6. Intellectual Property

1. Ownership:

  1. 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 will not dispute that ownership.
  2. 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.

2. 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.

3. Feedback: If the Client provides the Supplier with ideas, comments or suggestions relating to the Services or Underlying Systems (together feedback):

1. 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
2. the Supplier may use or disclose the feedback for any purpose.

4. 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.

7. Confidentiality

1. Security: Each party must, unless it has the prior written consent of the other party:

  1. keep confidential at all times the Confidential Information of the other party;
  2. effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorised access or use; and
  3. only 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.

2. Permitted disclosure: The obligation of confidentiality in clause 7.1a does not apply to any disclosure or use of Confidential Information:

  1. for the purpose of performing the Agreement or exercising a party’s rights under the Agreement;
  2. required by law (including under the rules of any stock exchange);
  3. which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
  4. 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
  5. 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.

8. Warranties

1. Mutual warranties: Each party warrants that it has full power and authority to enter into and perform its obligations under the Agreement which will constitute binding obligations on the warranting party.

2. No implied warranties: The Supplier does not give any warranties about the Saas Services, without limiting the foregoing, the Supplier does not warrant that the SaaS Services will meet the Client’s requirements or that it will be suitable for any particular purpose. To the maximum extent permitted by law:

  1. 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 are expressly excluded and, to the extent that they cannot be excluded, its liability is limited to $10,000.00NZD; and
  2. the Supplier makes no representation concerning the quality of the Services and does not promise that the Services will meet the Client’s requirements or be suitable for a particular purpose or be secure, free of viruses or other harmful code, uninterrupted or error free.

3. Consumer Guarantees: The Client agrees and represents that it is acquiring the Services and entering the Agreement for the purpose of a business and that any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction does not apply to the supply of the Services or the Agreement.

4. 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:

  1. supplying the Services again; and/or
  2. paying the costs of having the Services supplied again.

9. Liability

1. No Liability: To the maximum extent permitted by law, the Supplier excludes all liability to the Client in contract, tort (including negligence), or otherwise for any loss or damage resulting, directly or indirectly, from any use of or reliance on the Service.

2. Maximum liability: Notwithstanding clause 9.1 above, 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 $10,000.00NZD. The cap in this clause 9.1 includes the cap set out in clause 8.2a.

3. Unrecoverable loss: Neither party is liable to the other under or in connection with the Agreement or the Services for any:

1. loss of profit, revenue, savings, business, use, data (including Data), and/or goodwill; or

2. consequential, indirect, incidental or special damage or loss of any kind.

4. Unlimited liability:

  1. Clauses 9.1 and 9.2 do not apply to limit the Supplier’s liability under or in connection with the Agreement for:

    1. personal injury or death;
    2. fraud or wilful misconduct; or
    3. a breach of clause 7.
  2. Clause 9.2 does not apply to limit the Client’s liability:

    1. to pay the Fees;
    2. under the indemnity in clause 4.5; or
    3. for those matters stated in clause 9.3a.

5. 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.

6. 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.

10. Term, termination, and suspension

1. Duration: Unless terminated under this clause 10, the Agreement:

  1. starts on the Start Date and ends on the End Date; but
  2. where there is no End Date, continues on a month by month basis, unless the client deactivates their account or the Supplier gives 30 days’ notice, upon which the Agreement will terminate on the expiry of the then current term.

2. No fault termination: Either party may terminate the Agreement on no less than 30 days prior notice to the other party, unless specified otherwise in the SaaS Client Agreement.

3. Other Termination rights:

1. Either party may, by notice to the other party, immediately terminate the Agreement if the other party:

1. breaches any material provision of the Agreement or the SaaS Client Agreement and the breach is not:

1. remedied within 10 days of the receipt of a notice from the first party requiring it to remedy the breach; or
2. capable of being remedied;

1. 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
2. is unable to perform a material obligation under the Agreement for 30 days or more due to Force Majeure.

4. Consequences of termination or expiry:

1. Termination or expiry of the Agreement does not affect either party’s rights and obligations that accrued before that termination or expiry.

2. On termination or expiry of the Agreement, the Client must pay all Fees for Services provided prior to that termination or expiry.

3. 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, 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.

4. At any time prior to one month after the date of termination or expiry, the Client may request:

1. 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
2. deletion of the Data stored using the SaaS Service, in which case the Supplier must use reasonable efforts to promptly delete that Data.

5. 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.

5. Obligations continuing: Clauses which, by their nature, are intended to survive termination or expiry of the Agreement, including clauses 4.5, 6, 7, 9, 10.4, 10.5 and 11, continue in force.

6. Suspending access: 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 where the Client (including any of its personnel):

1. undermines, or attempts to undermine, the security or integrity of the SaaS Service or any Underlying Systems;
2. uses, or attempts to use, the SaaS Service:

1. for improper purposes; or
2. in a manner, other than for normal operational purposes, that materially reduces the operational performance of the SaaS Service; or

3. has otherwise materially breached the Agreement (in the Supplier’s reasonable opinion).

7. Notice: The Supplier must notify the Client where it restricts or suspends the Client’s access under clause 10.6

11. Disputes

  1. 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.
  2. Obligations continue: Each party must, to the extent possible, continue to perform its obligations under the Agreement even if there is a dispute.
  3. Right to seek relief: This clause 11 does not affect either party’s right to seek urgent interlocutory and/or injunctive relief.

12. General

1. Privacy Policy: By entering into this Agreement, you also agree to our privacy policy, which is also available on our Website.

2. 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:

1. immediately notifies the other party and provides full information about the Force Majeure;
2. uses best efforts to overcome the Force Majeure; and
3. continues to perform its obligations to the extent practicable.

3. 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.

4. Waiver: To waive a right under the Agreement, that waiver must be in writing and signed by the waiving party.

5. Independent contractor: Subject to clause 4.2, 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.

6. 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 a senior officer or manager of the other party at the other party’s last known physical address.

7. Severability: Any illegality, unenforceability or invalidity of a provision of the Agreement does not affect the legality, enforceability or validity of the remaining provisions of the Agreement.

8. Variation: Any variation to the Agreement must be in writing and signed by both parties.

9. 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.

10. Subcontracting and assignment:

1. The Client may not assign, novate, subcontract, license, sublicense or transfer any right or obligation under the Agreement without the prior written consent of the Supplier, that consent not to be unreasonably withheld. The Client remains liable for its obligations under the Agreement despite any approved assignment, subcontracting or transfer. Any assignment, novation, subcontracting or transfer must be in writing.

2. 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.

11. 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.