Terms of Trade - Fabric Digital

Terms of Trade

DEFINITIONS AND INTERPRETATION

1.1 In this Agreement:

“Acceptance Criteria”
has the meaning given to it in Clause 5;

“Acceptance Period” means the period of 10 Business Days beginning on the Implementation Date of the Website to the Customer;

“Agreement”
means the agreement between Fabric Digital Limited and the Customer incorporating these Terms and Conditions and the Proposal, and any amendments to it from time to time;

“Business Day”
means any week day, other than a bank or public holiday in New Zealand

“Business Hours”
means between 09:00 and 17:30 New Zealand Standard Time on a Business Day;

“Charges”
means the amounts payable by the Customer to Fabric Digital Limited under or in relation to the Agreement (as set out in the Proposal);

“Confidential Information”
means:
(a) any information supplied by Fabric Digital Limited to the Customer (whether supplied in writing, orally or otherwise) marked as “confidential”, described as “confidential” or reasonably understood to be confidential;
(b) the terms (but not the existence) of the Agreement;

“Control”
means the legal power to control (directly or indirectly) the management of an entity (and “Controlled” will be construed accordingly);

“Customer”
means the customer for services under the Agreement as specified in the Proposal and this Agreement;

“Customer Works”
means the works and materials provided to Fabric Digital Limited by the Customer, or by any third party acting for or on behalf of the Customer, for incorporation into the Website;

“Defect”
means a defect, error or bug having a material adverse effect on the appearance, operation or functionality of the Website but excluding any defect, error or bug caused by or arising as a result of:
(a) an act or omission of the Customer, or an act or omission of one of the Customer’s employees, officers, agents or sub-contractors;
(b) an incompatibility between the Website and any other application, program or software;
“Delivery Date” means the date for delivery of the Website specified in the Proposal;

“Deployment Date” means the date Website Deployment has occurred.

“Design Elements” means the visual appearance of the Website (including page layouts, artwork, photographs, logos, graphics, animations, video works and text comprised in the Website) together with all mark-ups and style sheets comprised in or generated by the Website, but excluding:
(a) the Customer Works; and
(b) the Third Party Works; and
(c) the Website Content

 

“Domain Name” means the top level domain(s) referred to in the Proposal;

“Early Termination” means termination of the contract in accordance with clause 14 before the expiration of the Minimum Term.

“Early Termination Charges” means the charges incurred by the Customer if Early Termination occurs. This is calculated as follows:
(a) Termination Penalty X percentage of Minimum Term remaining

“Effective Date” means the date of execution of this Agreement;

“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, hacker attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);

“Implementation Date” means the implementation date of the Website as detailed in Clause 5;

“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, moral rights, database rights, confidential information, trade secrets, know-how, business names, trade names, domain names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);

“Minimum Term” means the period of 1 Year starting from the Implementation Date unless otherwise stated in the Proposal;

“Personal Data” has the meaning given to it in the Privacy Act 1993;

“Prohibited Content” means:
(a) material which breaches any applicable laws, regulations or legally binding codes, or infringes any third party Intellectual Property Rights or other third party rights, or may give rise to any form of legal action against Fabric Digital Limited or the Customer or any third party;
(b) objectionable, pornographic or lewd material;
(c) messages or communications which are offensive, abusive, indecent or obscene, are likely to cause annoyance, inconvenience or anxiety to another internet user, or constitute spam or bulk unsolicited mail;

“Proposal” means the proposal documents, terms and conditions, and order forms, either electronic or hard copy, issued by Fabric Digital Limited detailing the scope of the Services and other matters relating to the Agreement;

“Resources” means the email mailboxes, data transfer, and disk space storage specified in the Proposal;

“Services” means the services detailed in Clause 3;

“Search Engine” means any third party website, displaying searchable, categorised, and hyperlinked information about the Website. The most notable example of a Search Engine is Google.com.

“Search Engine Optimisation” means the process of employing techniques and methodologies outlined in the Proposal in order to improve the appeal of the Website to Search Engine ranking algorithms, most specifically Google.com;

“SEO” means Search Engine Optimisation;

“Term” means the term of this Agreement;

“Termination Penalty”
means the penalty figure used for calculating the Early Termination charges. This is calculated as follows:
(a) gross value of Services in the Agreement during the Minimum Term, multiplied by a factor of 1.4

“Third Party Works” means the works and materials comprised in the Website, the Intellectual Property Rights in which are owned in whole or part by a third party (excluding the Customer Works);

 

“Website Content” means the Customer Works implemented into the Website using the Content Management System through a standard web browser;

“Website Deployment” means the Website is published making it publicly accessible on the internet under the Domain Name(s) as outlined in the Proposal;
“Year” means a period of 365 days (or 366 days if there is a 29 February during the relevant period).

 

“D, P Triple D” means the 5 step process (Discover, Plan, Design, Develop, Deploy) Fabric Digital follows when building a website

“In Scope Deliverable(s)” means the tasks Fabric Digital will complete in accordance to the proposal. Anything that is out of the in Scope Deliverables is deemed as “Out of Scope”.

 

“Out of Scope” includes, but is not limited to, The Customer works, third party works or any other work that Fabric Digital Limited will not carry out in accordance to the proposal.

 

1.2 In this Agreement, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
1.3 The Clause headings do not affect the interpretation of the Agreement.
1.4 The ejusdem generis rule is not intended to be used in the interpretation of the Agreement; it follows that a general concept or category utilsised in the Agreement will not be limited by any specific examples or instances utilised in relation to such a concept or category.

  1. TERM
    This Agreement will come into force on the Effective Date and will continue in force indefinitely, unless and until terminated in accordance with Clause 14. Effects of Termination including Early Termination Charges due to termination prior to the Minimum Term will be in accordance with clause 15.

 

  1. THE SERVICES
    3.1 Fabric Digital Limited:
    (a) will deliver the Website as outlined in the Proposal;
    (b) will facilitate the incorporation of  the Website Content into the Website by the Customer;
    (c) from the Implementation Date, will host the Website in the manner specified in the Proposal, and will make available the Resources for this purpose;
    (d) may suspend some or all of the Services in order to carry out scheduled maintenance or repairs.  Subject to this, Fabric Digital Limited will use its best endeavours to maintain an acceptable Website availability level;
    (e) will make available to the Customer the ability to update or amend the written content on the Website using a standard web browser;

(i) from time to time upgrade the Software Elements of the Website to provide greater service, security, and efficiency of the Website for the Customer;will

(j) will provide Website Promotion, and Search Engine Optimisation (SEO) services as outlined in the proposal.
(k) will register and manage the Domain Name(s) as outlined in the Proposal on behalf of the Customer.
(l)  will provide Website setup and configuration services as outlined in the proposal.
(m) will provide Website customisation and design as outlined in the proposal.

 

(the “Services”).
3.2 Fabric Digital Limited will use reasonable endeavours to perform the Services in accordance with the timetable set out in the Proposal; however, Fabric Digital Limited does not guarantee that that timetable will be met.
3.3 Fabric Digital Limited will perform all Search Engine Optimisation Services to the best of its abilities as set out in the Proposal; however Fabric Digital Limited cannot guarantee the position or inclusion of the Website within Search Engine rankings or results.

 

  1. CUSTOMER OBLIGATIONS
    4.1 The Customer will provide Fabric Digital Limited with:
    (a) such co-operation as is required by Fabric Digital Limited (acting reasonably) to enable the performance by Fabric Digital Limited of its obligations under the Agreement; and
    (b) all information and documents required by Fabric Digital Limited (acting reasonably) in connection with the provision of the Services.
    4.2 The Customer will be responsible for procuring any third party co-operation reasonably required by Fabric Digital Limited to enable Fabric Digital Limited to fulfil its obligations under the Agreement.
    4.3 The Services are provided to the Customer only, and the Customer may not resell the Services to any third party.
    4.4 The Customer will be responsible for obtaining suitable licences of third party software (such as email client software) which are required for the full use of the Services.
    4.5 It is the Customer’s responsibility to keep any passwords relating to the Services confidential, and to change such passwords on a regular basis.  The Customer will notify Fabric Digital Limited immediately if it becomes aware that a password relating to the Services is or may have been compromised or misused.
  2. DELIVERY AND ACCEPTANCE

5.1 Upon Fabric Digital’s completion of each step of the D, P Triple D, The Customer has 7 business days to send Fabric Digital written notice confirming that they are happy to move on to the next step. If The Customer does not want to move to the next step, The Customer must provide Fabric Digital written notice with a detailed explanation as to why. If The Customers request within the in Scope Deliverables of the project, Fabric Digital will initiate the implementation of the changes no longer than 30 business days after receiving the written notice. If the customers request falls out side of the scope of the project, The Customer will incur extra charges as determined by Fabric Digital Limited and agreed upon by the Customer.

5.2 If the Customer wishes to revise work done in a step of the D, P Triple D after the Customer has sent written confirmation, Fabric Digital reserves the right to incur extra charges to the Customer as determined by Fabric Digital Limited and agreed upon by the customer

5.2 Fabric Digital Limited will give the Customer notification in writing when the Website is ready for Website Content loading, and will provide the Customer access to the content management area of the Website for the purpose of Website Content loading, and acceptance testing. The Implementation Date will be deemed to be when this notification is given in accordance with clause 16.2.
5.3 Following the Implementation Date, the Customer will carry out acceptance tests to determine:
(a) whether the Website conforms in all material respects with the specification of the Website in the Proposal; and
(b) whether the Website has any Defects;

(the “Acceptance Criteria”).

5.4 If in the Customer’s reasonable opinion the Website meets the Acceptance Criteria, the Customer will send to Fabric Digital Limited a written notice confirming acceptance of the Website.
5.5 If in the Customer’s reasonable opinion the Website does not meet the Acceptance Criteria, the Customer will send to Fabric Digital Limited a written notice setting out in detail the respect(s) in which the Website does not meet the Acceptance Criteria. If the detail in the written notice falls out side of the in Scope Deliverables of the project. The Customer will incur extra charges as determined by Fabric Digital Limited and agreed upon by the Customer.
5.5 If Fabric Digital Limited (acting reasonably) agrees that the Website does not meet the Acceptance Criteria, Fabric Digital Limited will have a further remedial period (of 40 Business Days) to modify the Website so that it meets the Acceptance Criteria.

5.6 The Website will be deemed to have been accepted by the Customer if the earlier of the following occurs:
(a) the Customer does not give any notice to Fabric Digital Limited under either Clause 5.3 or Clause 5.4 within the Acceptance Period; or
(b) the Customer instructs Website Deployment to occur; or
(c)  the Customer uses the Website for any purpose other than Website Content loading and/or testing and/or testing.

 

  1. THIRD PARTY WORKS
    Any license fees for Third Party Works will be payable by the Customer in addition to the Charges specified in the Proposal (unless the parties agree otherwise).

 

  1. ACCEPTABLE USE
    7.1 The Customer must not use the Website or any of the Services:
    (a) to host, store, send, relay or process any Prohibited Content;
    (b) for any purpose which is unlawful, fraudulent, or infringes any third party rights;
    (c)  in any way which may put Fabric Digital Limited in breach of a contractual or other obligation owed by Fabric Digital Limited to any internet service provider.
    7.2 Fabric Digital Limited reserves the right to remove content from the Website where it reasonably suspects such content is Prohibited Content.
    7.3 The Website’s utilisation of Resources must not exceed the limits set out in the Proposal.  If the Website’s utilisation of Resources exceeds those limits, the parties will endeavour to agree a variation to this Agreement.  If the parties cannot agree such a variation within a reasonable period (being not more than 10 days) following notice from Fabric Digital Limited to the Customer requesting such variation, and Resource utilisation continues to exceed those limits, the Customer will be deemed to be in material breach of this Agreement for the purposes of Clause 14.
    7.4 The Customer acknowledges that Fabric Digital Limited does not purport to monitor the content of the Website or the use of the Services.
    7.5 Where Fabric Digital Limited reasonably suspects that there has been a breach of the provisions of this Clause 7, Fabric Digital Limited may suspend any or all of the Services and/or the Customer’s access to any or all Services while it investigates the matter.
    7.6 Subject to Clause 7.3, any breach by the Customer of this Clause 7 will be deemed to be a material breach of this Agreement for the purposes of Clause 14.
    7.7 The Customer will indemnify and will keep indemnified Fabric Digital Limited against all damages, losses and expenses (including legal expenses) arising as a result of any breach by the Customer of this Clause 7, and any claim that the Website Content or Customer Works constitute Unlawful Content, or any legal proceedings relating to such a claim.
  2. CHARGES AND PAYMENT
    8.1 Fabric Digital Limited will issue invoices for the Charges to the Customer from time to time in advance during the Term as set out in this Agreement.
    (a) Before commencing the Fabric Digital 5 Step Website Build Process a minimum of a 50% deposit is required.  This deposit is non-refundable.
    8.2 The Customer will pay the Charges to Fabric Digital Limited within the earlier of:
    (a) 7 days of the date of issue of an invoice issued in accordance with Clause 8.1; or
    (b) on or before the relevant due date shown on invoice issued in accordance with Clause 8.1; or
    (c) on or before the relevant due dates set out in the Proposal.
    8.3 All Charges stated in or in relation to the Agreement are stated exclusive of GST, unless the context requires otherwise.
    8.4 Charges must be paid in accordance with the terms of this Agreement and the Proposal.
    8.5 If the Customer does not pay any amount properly due to Fabric Digital Limited under or in connection with the Agreement, the Customer agrees that Fabric Digital Limited may:
    (a) charge the Customer interest on the overdue amount at the rate of 2.5% per month which interest will accrue daily until the date of actual payment and will be compounded monthly;
    (b) refer the debt to Fabric Digital Limited’s nominated debt collection agency;
    (c) release the Customer’s details to Fabric Digital Limited’s nominated credit reporting agency;
    (d) claim all costs related to debt recovery from the Customer.
    (e) restrict or cease provision of services to the Customer as outlined in the Agreement.
    8.6 Flo2Cash Limited is the duly appointed agent to execute Direct Debit payments on behalf of Fabric Digital Limited. Direct Debit Payments will be executed in the following manner:
    (a) Flo2Cash Limited will charge the customer NZD $9.20 (exclusive of GST) for each failed, rejected, or dishonoured Direct Debit.
    (b) After the second Direct Debit attempt fails for an individual payment, a final demand notification and a Direct Debit for the full balance outstanding amount will be attempted.
    (c) In the event that 3 (three) consecutive attempts to debit the Customer account has failed, the debt will be referred to the receivable management company Credit Watch International Limited and/or its solicitors for collection and the Customer will be liable for all recovery costs as provided in the terms and conditions of the Direct Debit.
    8.7 Charges for any applicable monthly running costs as outlined in this Agreement will begin at the Implementation Date.
    8.8 Fabric Digital Limited has the right to increase its fees and charges by providing the Customer 30 days notification of such an increase.
    8.9 Unless otherwise specified, any website related recurring monthly charges (eg. Support Packages) will begin 8 weeks from the initial signing of the contract.
  3. INTELLECTUAL PROPERTY RIGHTS
    9.1 All Intellectual Property Rights in the Website Content, and Customer Works will, as between the parties, be the property of the Customer, subject always to the other terms of the Agreement.
    9.2 All Intellectual Property Rights in the Design Elements will, as between the parties, be the property of Fabric Digital Limited and, from the Deployment Date of the Website, Fabric Digital Limited grants to the Customer a non-exclusive worldwide licence to use the Design Elements in

connection with the Website, subject always to the other terms of the Agreement, and providing the Customer must not:
(a) sell, resell, rent, lease, supply, distribute or redistribute the Design Elements;
(b) use the Design Elements in connection with any website, web application, script, computer program or software (other than the Website); or
(c)  alter or adapt or edit the Design Elements.
9.3 Design Elements created by Fabric Digital Limited can be supplied to the Customer upon request and in an appropriate format as determined by Fabric Digital Limited.
9.4 The Third Party Works will be either (at the option of Fabric Digital Limited):

(a) supplied in accordance with the relevant licensor’s standard terms for online use;
(b) supplied on licence terms notified by Fabric Digital Limited to the Customer;
(c)  sub-licensed by Fabric Digital Limited to the Customer on terms notified by Fabric Digital Limited to the Customer.
9.5 Notwithstanding any other provision of the Agreement, the assignments and licences granted by Fabric Digital Limited under the Agreement are subject to the payment by the Customer of all amounts owing to Fabric Digital Limited in full and on time.  In the event that the Customer owes any amount to Fabric Digital Limited and fails to pay that amount to Fabric Digital Limited within 14 days of receiving a notice:
(a) requiring it to do so; and
(b) specifying that the assignment will revert and the licences will terminate if the amount repays unpaid, then Fabric Digital Limited may immediately revert the assignments and terminate the licences granted by Fabric Digital Limited under the Agreement by giving written notice of reversion and termination to the Customer.
9.6 Subject to Clause 9.4, upon and following the termination of the Agreement, any licence granted by Fabric Digital Limited to the Customer will continue notwithstanding termination, and this Clause 9 will continue to apply.
(c) at Fabric Digital’s sole discretion, if the customer fails to pay any amount owing to Fabric, Fabric reserves the right suspend all current services that the customer has with Fabric until the customers account is paid in full.
9.7 Fabric Digital Limited may include a statement of credit together with a link to Fabric Digital Limited’s website on each page of the Website in an unobtrusive position.  The Customer will retain any such credit and link in any adapted version of the Website, and the Customer will (and will only) remove any such credit and link from the Website at Fabric Digital Limited’s request.
9.8 The Customer grants to Fabric Digital Limited a non-exclusive worldwide licence, under the Intellectual Property Rights in the Website, to use the Website for the purpose of marketing Fabric Digital Limited’s services to third parties.

  1. WARRANTIES
    10.1  The Customer warrants to Fabric Digital Limited that it has the legal right and authority to enter into and perform its obligations under the Agreement.
    10.2  Fabric Digital Limited warrants to the Customer:
    (a) that it has the legal right and authority to enter into and perform its obligations under the Agreement; and
    (b) that it will perform its obligations under the Agreement with reasonable care and skill; and
    10.3  The Customer acknowledges that Fabric Digital Limited has designed the Website to work with the most common and widely used version of Microsoft Internet Explorer, and Mozilla Firefox web browser technology at the Effective Date of this Agreement , and Fabric Digital Limited does not warrant that the Website will work with any other web browser technology.
    10.4  The Customer further acknowledges that Fabric Digital Limited does not purport to provide any legal advice under the Agreement or in relation to the Website and Fabric Digital Limited does not warrant that the Website will not give rise to any civil or criminal legal liability on the part of the Customer or any other person.
    10.5  All of the parties’ liabilities and obligations in respect of the subject matter of this Agreement are expressly set out in the terms of this Agreement.  To the maximum extent permitted by applicable law, no other terms concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.
  2. LIMITATIONS OF LIABILITY
    11.1  Nothing in the Agreement will exclude or limit the liability of either party for:
    (a) death or personal injury caused by that party’s negligence;
    (b) fraud or fraudulent misrepresentation on the part of that party; or
    (c)  any other liability which may not be excluded or limited under applicable law.
    11.2  Subject to Clause 11.1, Fabric Digital Limited’s liability to the Customer under or in connection with the Agreement, any 3rd party agreement or contract, or any collateral contract, whether in contract or tort (including negligence), will be limited as follows:
    (a) Fabric Digital Limited will not be liable for any:
    (i)  loss of profits, income or anticipated savings,
    (ii)  loss or corruption of any data, database or software,
    (iii) reputational damage or damage to goodwill;
    (iv) loss of any commercial opportunity, or
    (v) indirect, special or consequential loss or damage;
    (b) Fabric Digital Limited will not be liable for any losses arising out of a Force Majeure Event; and
    (c)  Fabric Digital Limited’s liability in relation to any event or series of related events will in no circumstances exceed the greater of:
    (i)  NZD $5,000; ands
    (ii)  the total amount paid (or, if greater, payable) by the Customer to Fabric Digital Limited under the Agreement during the 12 month period immediately preceding the event or series of events.
  3.   CONFIDENTIALITY AND PUBLICITY
    13.1  The Customer will keep confidential the Confidential Information, and will not disclose that Confidential Information except as expressly permitted by this Clause 13.
    13.2  The Customer will protect the confidentiality of the Confidential Information using at least reasonable security measures.
    13.3  The Confidential Information may be disclosed by the Customer to its employees and professional advisers, provided that each recipient is legally bound to protect the confidentiality of the Confidential Information.
    13.4  These obligations of confidentiality will not apply to Confidential Information that:

(a) has been published or is known to the public (other than as a result of a breach of the Agreement);
(b) is known to the Customer, and can be shown by the Customer to have been known to it, before disclosure by Fabric Digital Limited; or
(c)  is required to be disclosed by law, or by an order (binding upon the relevant party) of a governmental authority, a regulatory body or a stock exchange.
13.5  The Customer will not make any public disclosure relating to the subject matter of the Agreement (including press releases, public announcements and marketing materials) without the prior written consent of Fabric Digital Limited.
14.   TERMINATION
14.1  Either party may terminate the Agreement at any time by giving at least 30 days written notice to the other party.
14.2  Either party may terminate the Agreement immediately by giving written notice to the other party if the other party:
(a) commits any material breach of any term of the Agreement, and:
(i)  the breach is not remediable; or
(ii)  the breach is remediable, but other party fails to remedy the breach within 30 days of receipt of a written notice requiring it to do so; or
(b) fails to pay any amount due under the Agreement in full and on time.
(c)  persistently breaches the terms of this Agreement.
14.3  Either party may terminate this Agreement immediately by giving written notice to the other party if:
(a) the other party:
(i)  is dissolved;
(ii)  ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c)  an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under this Agreement);
(d) (where that other party is an individual) that other party dies, or as a result of illness or incapacity becomes incapable of managing his or her own affairs, or is the subject of a bankruptcy petition or order.

15.   EFFECTS OF TERMINATION
15.1  Upon termination all the provisions of the Agreement will cease to have effect, save that the following provisions of the Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses 1, 7, 8.5, 9, 10, 11, 13, 15, and 16.3 to 16.14.
15.2  Termination of the Agreement will not affect either party’s accrued rights (including Fabric Digital Limited’s accrued rights to invoice and to be paid the Charges) as at the date of termination.
15.3  If the Agreement is terminated under Clause 14.1, or by the Customer under Clause 14.2 or 14.3 (but not in any other case):
(a) The Customer will not be supplied, and is not entitled to electronic copies of:
(i) the Software Elements;
(ii)  the Design Elements;
(iii) the Third Party Works.
(b) Fabric Digital Limited will provide such assistance as is reasonably requested by the Customer to enable the transfer of the Domain Name(s) to the Customer or another service provider, subject to payment of Fabric Digital Limited’s reasonable expenses; and
(c)  the Customer will be entitled to a refund of any Charges paid by the Customer to Fabric Digital Limited in respect of any Services which were to be performed after the date of effective termination, and will be released from any obligation to pay such Charges to Fabric Digital Limited (such amount to be calculated by Fabric Digital Limited using any reasonable methodology).
15.4  Save as provided in Clause 15.3(c), the Customer will not be entitled to any refund of Charges on termination, and will not be released from any obligation to pay Charges to Fabric Digital Limited.
15.5  If Early Termination occurs under the Agreement Early Termination Charges will be charged to the Customer as outlined in this Agreement and the Proposal.

The Customer
The addressee, postal address, fax, and email address specified in this Agreement

16.2  A notice will be deemed to have been received at the relevant time set out below (or where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below):
(a) where the notice is delivered personally, at the time of delivery;
(b) where the notice sent by priority mail, 48 hours after posting; and
(c)  where the notice sent by fax or email, at the time of the transmission (providing the sending party retains written evidence of the transmission).
16.3  No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.
16.4  If a Clause of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of the Agreement will continue in effect.  If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted).
16.5  Nothing in the Agreement will constitute a partnership, agency relationship or contract of employment between the parties.
16.6  The Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
16.7  Fabric Digital Limited may freely assign its rights and obligations under the Agreement without the Customer’s consent.  Save as expressly provided in this Clause or elsewhere in the Agreement, neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise dispose of or deal in the Agreement or any rights or obligations under the Agreement.
16.8  Fabric Digital Limited may subcontract any of its obligations under the Agreement to any third party without the Customer’s consent.
16.9  The Customer will not, without Fabric Digital Limited’s prior written consent, either during the term of the Agreement or within 6 months after the date of effective termination of the Agreement, engage, employ or otherwise solicit for employment any employee or contractor of Fabric Digital Limited who has been involved in the performance of the Agreement.
16.10 Each party agrees to execute (and arrange for the execution of) any documents and do (and arrange for the doing of) any things reasonably within that party’s power, which are necessary to enable the parties to exercise their rights and fulfil their obligations under the Agreement.
16.11 The Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party.  The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Agreement are not subject to the consent of any third party.
16.12 The Agreement constitutes the entire agreement and understanding of the parties in relation to the subject matter of the Agreement, and supersedes all previous agreements, arrangements and understandings between the parties relating to the subject matter of the Agreement.  Subject to Clause 11.1, each party acknowledges that no representations or promises not expressly contained in the Agreement have been made by or on behalf of the other party.
16.13 The Agreement will be governed by and construed in accordance with the laws of New Zealand and the courts of New Zealand will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Agreement.
16.14 Fabric Digital Limited may vary the terms of this agreement from time to time, and will do so by updating the online terms and conditions, and sending notification by email. Once notification has been given in accordance with clause 16.2 these new terms will be considered binding and enforceable under this Agreement.
16.15 The Customer authorises Fabric Digital Limited to act as agent on the Customer’s behalf for all Domain Name(s) as outlined in the Proposal. Such authorisation is restricted to activities related to the registration and management of the Customer’s Domain Name(s), and may include (but is not limited to):
(a) submitting Service Requests to the Registrar on the Customer’s behalf, and dealing with the Registrar;
(b) entering into a contract with the Registrar on behalf of the Customer, in the form of the Domain Name Registration process;
(c)  disclosure of personal information to the Registrar in order to accurately register and manage the Domain Name(s)