General Terms and Conditions

1. Introduction & Acceptance

1.1 These Terms and Conditions apply to any Services supplied by us to you. Your acceptance of the version of these Terms and Conditions in force from time to time (as determined under clause 16) will be deemed to occur when you sign, place or otherwise accept (including by electronic signature, email confirmation, or written purchase order) any: (a) Statement of Work (SOW); (b) Services Order or Service Order (SO); (c) Proposal; or (d) reselling quote or order for hardware, software or third party products or services, in each case which incorporates these Terms and Conditions by reference or is issued by us under these Terms and Conditions.

1.2 These Terms and Conditions, any Services Agreement or accepted Proposal, any Statement of Work or Service Order, and any reselling quote or order accepted under clause 1.1, make up the contract between you and us in relation to performance of the Services or the supply of any third party products or services. 

2. Definitions

2.1 In these Terms and Conditions:

“Client Responsibilities” has the meaning given to that term in clause 3.1(c);

“Good Industry Practice” means, in relation to a particular activity, the exercise of a degree of skill, care and diligence which would reasonably be expected from a skilled and experienced person engaged in the same activity in a reputable provider of equivalent services internationally (and, where relevant, in New Zealand), under the same or similar circumstances.

“Proposal” means the formal offer made by us to you detailing the specific Services to be provided, the scope of work, the Rates, and any other relevant terms and conditions, which upon acceptance by you, forms part of the Services Agreement.

“Rates” means the fees, charges and pricing applicable to the Services set out in the applicable SOW, including (as relevant to the Services being provided): (a) hourly charge-out rates for our personnel in respect of time and materials work; (b) recurring fees (whether monthly, quarterly, annual or such other frequency as specified in the SOW) for managed services and retainers; (c) fixed fees for fixed-price projects; and (d) product, licence or subscription fees for any third party products or services resold or procured by us on your behalf, in each case as reviewed from time to time in accordance with clause 4.3;

“Services” means any Services ordered by you from, and supplied by, us as set out in either the Services Agreement, any SOW or as otherwise agreement in writing and includes any deliverables or other materials we provide as part of the Services; 

“Services Agreement” means any service description and/or the service level agreement entered into between you and us (if any);

“Proposal” or “SOW” or “SO” has the meaning given to that term in clause 3.1; 

“we”, “us” or “our” means LinearStack NZ Limited (New Zealand company number 4339578); and

“you” or “your” shall mean the purchaser of any services from us.

1. In the event of inconsistency or conflict between these Terms and Conditions, the Services Agreement, and any Proposal, SOW, SO or reselling quote, the inconsistency or conflict will be resolved in accordance with the following order of precedence:
2. the Proposal, SOW, SO or reselling quote (or, if there is more than one, the most recently signed or placed);
3. the Services Agreement; and
4. these Terms and Conditions. 

3. Proposal or Statement of Work or Service Order

3.1 You may request the provision of Services from us to you, or any amendment to Services we are already providing, at any time. Subject to any request from us for further information and provided the Services can be reasonably implemented, we will prepare and provide you with a Proposal or a statement of work (“SOW”) or service order (“SO”) for performance of any such Services. Each Proposal or SOW or SO will set out:

3. the Services to be performed and the estimated timeframes for performance of such Services; 
4. any deliverables or other materials to be provided during the provision of such Services; 
5. any requirements or other responsibilities that you must comply with to enable us to deliver the Services (“Client Responsibilities”); and
6. our estimate of our charges and other costs for performance of the Services payable by you (such charges to be calculated using the Rates).

In the event that preparation of a Proposal or SOW or SO will incur material time and resource, we may charge you for the preparation of such Proposal or SOW or SO. We will endeavour to discuss with you and agree on the charges for such preparation prior to commencement of any such Proposal or SOW or SO. 

3.2 Unless withdrawn in writing by us, any Proposal or SOW or SO we provide to you is available for acceptance for 14 days (or any longer period stated in the Proposal or SOW or SO) from the date of provision. Acceptance occurs in accordance with clause 1.1. 

3.3 An order or letter of acceptance that contains terms or conditions in conflict with or seek to amend any Proposal or SOW or SO or these Terms and Conditions will not be binding on us.

4. Charges & Review of Rates

4.1 The estimate of our charges in any Proposal or SOW or SO are prepared having regard to the information available to us, and are based on the Rates, at the date the estimate is provided. Unless expressly stated as a fixed fee, our charges are estimates only and may increase as a result of a range of factors such as changing requirements for the Services, project timetable delays caused by a failure to comply with the Client Responsibilities and any unforeseen impediments or other issues related to delivery of the Services. We will endeavour to keep you informed on a timely basis in the event we believe our estimate requires revising and will discuss this with you. 

4.2 Any work that we perform that is outside the scope of any Proposal or SOW or SO, or performed on an ad hoc basis at your request, will be charged based on our Rates. 

4.3 We may increase the Rates from time to time provided that we will not do so more than once in any 12-month period.  We will notify you of any change to the Rates by at least three (3) months’ prior notice in writing, with such amended Rates coming into effect on the next anniversary of the Effective Date following expiry of that notice period.

5. Payment Terms

5.1 Invoices raised by us in relation to any matter covered by these Terms and Conditions must be paid in full on or before the 20th day of the month following invoicing. 

5.2 Interest will accrue daily on any undisputed amounts that remain unpaid after the due date, both before and after any judgment, at a rate equal to the Reserve Bank of New Zealand Official Cash Rate (OCR) in effect from time to time plus 5% per annum, or such other equivalent reference rate as may be specified in the applicable SOW for clients whose principal place of business is outside New Zealand. The rate determined under this clause is subject to a minimum of 8% per annum and a maximum of the highest rate permitted by applicable law. The parties acknowledge that this rate represents a genuine pre-estimate of our cost of funding overdue amounts and the commercial cost of late payment, and is not intended as a penalty.

5.3 If any undisputed invoice remains unpaid for more than thirty (30) days after its due date, we may, on at least seven (7) days’ prior written notice to you, suspend performance of all or part of the Services until the overdue amount (together with any accrued interest) is paid in full. Suspension under this clause does not relieve you of your obligation to pay any fees that continue to accrue during the period of suspension under any applicable SOW or Services Agreement, and does not limit our right to terminate under clause 8.7 for material breach. 

5.4 While any undisputed invoice remains overdue, we may also: (a) decline to accept any new Proposal, SOW, Services Order or change request from you; (b) withhold the release or transfer of any deliverables, source code, configuration documentation, licence keys, or any third party licences or subscriptions procured for you on your behalf, until all overdue amounts (together with any accrued interest) are paid in full; and (c) recover all costs reasonably incurred by us in recovering any overdue amounts, including debt-recovery agency fees and legal costs on a solicitor-client basis.

6. Services Agreement, Timeframes and Customer Responsibilities

6.1 In the event that a Services Agreement has been entered into, we will use reasonable endeavours to deliver the Services in accordance with such Services Agreement. 

6.2 We will endeavour to deliver the Services in accordance with any timeframes or project plans set out in the applicable SOW. Timeframes are estimates and we will use reasonable endeavours to meet them. We will notify you promptly if we become aware that a delay is likely. 

6.3 You agree to comply with, provide or deliver (as appropriate) any Client Responsibilities. 

6.4 Notwithstanding any other provision of these Terms and Conditions, if we have failed to deliver the Services in accordance with these Terms and Conditions and the applicable Proposal or SOW or SO (each instance a "Non-Performance"), and can demonstrate that the Non-Performance would not have occurred but for your (including your personnel’s) acts and/or omissions ("Client Cause"), we shall not be treated as being in breach of any applicable obligation to the extent we can demonstrate that the Non-Performance was caused by the Client Cause.

6.5 You acknowledge that certain third party software may form part of the service offering comprising the Services (“Third Party Software”). You agree to comply with any terms and conditions imposed on us by the owner of the Third Party Software, provided that those terms and conditions have been notified to you in writing (including by reference to a publicly available URL) at or before the time you place the applicable Proposal, SOW or Service Order. You agree not to do or omit to do anything that will cause us to be in breach of those terms and conditions.

6.7 Any change to the scope, deliverables, timeframes or fees of any Proposal, SOW or Service Order must be agreed in writing by both parties before the change takes effect (a “Change Order”). A Change Order may take the form of a signed amendment, an email confirmation from authorised representatives of each party, or a new SOW or Service Order superseding the prior one. We are not obliged to perform work outside the scope of the current Proposal, SOW or Service Order until a Change Order has been agreed. If you request a change and we incur reasonable preparation effort in scoping it, we may charge for that effort whether or not a Change Order is ultimately agreed, provided we notify you in advance.

7. Other Obligations

7.1 In providing the Services, we agree: 

7.2 to do so in accordance with Good Industry Practice; and

7.3 to comply with all applicable laws and regulations. 

7.4 You agree that in complying with your obligations, and receiving the benefit of the Services, under these Terms and Conditions you will comply with all applicable laws and regulations including those in relation to the collection, storage and use of personal information under the Privacy Act 2020. 

7.5 You acknowledge that delivery of the Services is undertaken by our personnel and contractors, who may be based in or operating from a range of locations globally (currently including New Zealand, Australia, India and the United States of America, though the locations from which we deliver the Services may change from time to time). Personal information handled in connection with the Services may accordingly be processed in those locations, subject to our obligations under clause 13 (Data Protection and Security). 

8. Termination of Services

8.1 The term applicable to any Services will be determined by the type of Services ordered and as specified in the applicable Services Agreement, SOW or SO:

1. Managed Services: the initial term is twelve (12) months from the Effective Date specified in the applicable Services Agreement, SOW or SO (the “Initial Term”), unless a longer Initial Term is specified in the applicable Services Agreement, SOW or SO.
2. Retainer Engagements: the initial term is twelve (12) months from the Effective Date specified in the applicable Services Agreement, SOW or SO (the “Initial Term”), unless a longer Initial Term is specified in the applicable Services Agreement, SOW or SO.
3. Fixed Price Projects: the term commences on the Effective Date specified in the applicable Services Agreement, SOW or SO and continues until the agreed scope of work has been completed and accepted in accordance with these Terms and Conditions. There is no minimum term and no automatic renewal.
4. Time and Materials Engagements: the term is the period specified in the applicable Services Agreement, SOW or SO (for example, an agreed number of support hours per week or per month for a defined period). There is no automatic renewal unless expressly agreed in the applicable Services Agreement, SOW or SO.
5. Reselling of Hardware and Software: clauses 8.1(a) to 8.1(d) do not apply to the resale of hardware or software, which is governed by the applicable Proposal, SOW or SO and any terms of the relevant manufacturer or licensor.

8.2 Renewal: On expiry of the Initial Term, Managed Services and Retainer Engagements will automatically renew for successive twelve (12) month periods (each a “Renewal Term”) on the same terms unless either party gives the other party at least thirty (30) days’ written notice of non-renewal before the end of the then current Initial Term or Renewal Term, and provided that the aggregate of the Initial Term and any Renewal Terms under this clause 8.2 will not exceed three (3) years in total. On expiry of that three (3) year period, the relevant Services will continue only if the parties agree in writing to a new Initial Term, which may be evidenced by a renewal SOW, Services Order or written confirmation from authorised representatives of each party. Fixed Price Projects and Time and Materials Engagements do not auto-renew and will end on completion of scope or expiry of the agreed period (as applicable).

8.3 You may terminate any ongoing Managed Services or Retainer Engagement by providing us with at least thirty (30) days’ written notice before the end of the Initial Term or any Renewal Term. This right of termination does not apply to Fixed Price Projects, Time and Materials Engagements for their agreed period, or the resale of hardware or software. 

8.4 Upon termination of any Services, we will be entitled to invoice you for any work performed up to the date of termination. 

8.5 Notification of non-renewal or termination must be provided in writing and will be effective upon receipt by the other party.

8.6 Either party may terminate this Agreement immediately by notice in writing to the other party if the other party suffers an Insolvency Event. For the purposes of this clause, “Insolvency Event” means a party becoming insolvent, being placed in liquidation or receivership, entering into voluntary administration, making any composition or arrangement with its creditors, ceasing or threatening to cease to carry on business, or any analogous event occurring in any jurisdiction.

8.7 Either party may terminate this Agreement by notice in writing to the other party if the other party commits a material breach of these Terms and Conditions and (where that breach is capable of remedy) fails to remedy that breach within 20 Business Days after receiving written notice from the non-breaching party specifying the breach and requiring it to be remedied. Without limiting the foregoing, your failure to pay any undisputed invoice within sixty (60) days of its due date will be deemed a material breach of these Terms and Conditions that is incapable of remedy by performance alone, entitling us to terminate this Agreement (and/or any SOW or Services Agreement) on written notice with immediate effect. For the purposes of this clause, “Business Day” means a day other than a Saturday, Sunday or public holiday in Auckland, New Zealand.

9. Warranties, Limitation of Liability & Indemnity

9.1 You acknowledge that we will perform the Services with reasonable care and skill and in accordance with Good Industry Practice, and that, to the maximum extent permitted by law and with the exception of this warranty and any warranties or conditions which may not lawfully be excluded, all other warranties and representations (whether express or implied, including any implied warranty of fitness for a particular purpose) are excluded.

9.2 To the extent permitted by law, neither party will be liable to the other party or any third party (whether for breach of contract, tort, for breach of statute or on any other basis) for any:

1. indirect, consequential or special loss, damage or injury; or
2. loss of profits, revenue, business opportunity, anticipated savings, wasted overheads or damage to goodwill, regardless of whether in the circumstances it is deemed direct, indirect, consequential or special losses.

9.3 Subject to clause 9.2, and except in respect of the Excluded Liabilities, each party’s maximum liability in contract, tort, equity, statute, regulation or otherwise for any loss, damage or injury directly or indirectly out of or in connection with these Terms and Conditions in any 12-month period shall in no event exceed the sums actually paid by you to us during such 12-month period. For the purposes of this clause, “Excluded Liabilities” means liability arising from or in connection with: (a) fraud or wilful default; (b) infringement of the other party’s intellectual property rights; (c) breach of clause 12 (Confidentiality); (d) breach of clause 13 (Data Protection and Security) or any Data Breach caused by a party’s acts or omissions, provided that each party’s aggregate liability under this paragraph (d) is capped at NZ$2,000,000; (e) liability for personal injury or death, or damage to tangible property, caused by the negligence of a party; and (f) amounts properly invoiced and payable under this Agreement. 

9.4 We will indemnify you against any third party claim that the Services or any Deliverables infringe that third party's intellectual property rights, provided that you (a) notify us promptly of the claim, (b) give us sole control of the defence and any settlement, and (c) provide reasonable assistance at our cost. This indemnity does not apply to claims arising from (i) your modification of the Deliverables, (ii) your combination of the Deliverables with materials not supplied by us, (iii) your use of the Deliverables other than in accordance with this Agreement, (iv) any materials, specifications, instructions or data supplied by you or on your behalf, (v) any third party software, open source software or other third party materials that we have notified you will form part of the Deliverables (which are subject to their own terms), or (vi) any infringement that would not have arisen but for your failure to implement an update, replacement or modification we have made available to you at no additional cost. If a claim under this clause 9.4 is made or in our reasonable opinion is likely to be made, we may at our option: (x) procure for you the right to continue using the affected Deliverable; (y) modify or replace the affected Deliverable so it is non-infringing while remaining substantially functionally equivalent; or (z) terminate the affected Services or Deliverable and refund the fees paid for the affected Deliverable for the 12 months preceding the claim. Our total aggregate liability under this clause 9.4 is capped at an amount equal to two (2) times the fees paid by you to us in the 12 months preceding the claim, and this is your sole and exclusive remedy for any third party intellectual property infringement claim.

9.5 LINEARSTACK confirms it carries, and will maintain throughout the term of this Agreement, the following insurance with reputable insurers:

1. Professional Indemnity / Errors and Omissions insurance with a limit of not less than NZ$2,000,000 per claim and NZ$4,000,000 in the aggregate; and
2. Public and Products Liability insurance with a limit of not less than NZ$10,000,000 per claim; and
3. Cyber Liability insurance with a limit of not less than NZ$2,000,000 per claim, covering first- and third-party loss arising from a Data Breach or unauthorised access to systems or data held in connection with the Services.

10. Intellectual Property

10.1 Unless agreed otherwise in writing in the applicable SOW:

1. we retain all rights, title and interest in our Background IP, being all intellectual property rights, software, methodologies, processes, designs, tools, templates, frameworks, documentation and know-how owned by us or licensed to us prior to the Effective Date or developed by us independently of the Services, and any modifications or improvements to that Background IP (whether developed by us or arising in the course of providing the Services);
2. on payment of the applicable Fees, we assign to you all intellectual property rights in any deliverables, configurations, scripts or other materials created by us specifically for you under a SOW (Deliverables), excluding any Background IP embedded in those Deliverables;
3. we grant you a perpetual, non-exclusive, non-transferable, royalty-free licence to use our Background IP solely to the extent necessary to use and enjoy the Deliverables and the Services; and
4. you grant us a perpetual, non-exclusive, royalty-free licence to use any improvements or modifications to our Background IP for our own business purposes.

10.2 You warrant that anything given (including any instructions) by you to us in relation to the Services shall not infringe, or cause us to infringe, the intellectual property rights of any third party.

11. Non-Solicitation of Personnel

11.1 Both parties agree that while this Agreement is in effect and for a period of twelve (12) months following the expiration or termination of this Agreement neither party will offer to employ or contract with, or otherwise solicit or induce to leave, any employees or other personnel of the other party without the prior written consent of the other party.

12 Confidentiality

12.1 Each party (the “Recipient”) agrees to keep confidential all information of a confidential nature (including these Terms and Conditions, the existence and terms of any Proposal, SOW or Services Agreement, and any commercial, technical, financial or operational information) disclosed to it by the other party (the “Discloser”), whether before or after the date of this Agreement (“Confidential Information”), and to use such Confidential Information only for the purposes of performing its obligations and exercising its rights under this Agreement.

12.2 The obligations in clause 12.1 do not apply to information that: (a) is or becomes publicly available other than through a breach of this Agreement; (b) was known to the Recipient before disclosure by the Discloser, free of any obligation of confidence; (c) is independently developed by the Recipient without reference to the Discloser's Confidential Information; or (d) is received from a third party who is lawfully entitled to disclose it without obligation of confidence.

12.3 The Recipient may disclose Confidential Information: (a) to its officers, employees, contractors and professional advisers who need to know the information for the purposes of this Agreement and who are bound by obligations of confidence at least as protective as those in this clause; (b) to the extent required by law, any regulatory authority, or any rules of a stock exchange to which the Recipient is subject; and (c) in connection with a bona fide due diligence process relating to a sale, financing or corporate transaction, provided the recipient of the information is bound by appropriate confidentiality obligations.

12.4 Neither party will issue any press release or make any public statement referring to the other party or this Agreement, or use the other party's name, logo or trade marks, without the prior written consent of the other party.

12.5 The obligations in this clause survive expiry or termination of this Agreement for a period of three (3) years.

13. Data Protection and Security

13.1 Each party will comply with all applicable privacy and data protection laws in connection with the performance of its obligations under this Agreement, including (in New Zealand) the Privacy Act 2020.

13.2 Where we collect, store, process or otherwise handle personal information on your behalf in providing the Services, we will: (a) only use that information for the purposes of providing the Services or as otherwise authorised by you in writing; (b) implement and maintain appropriate technical and organisational security measures designed to protect that information against unauthorised or unlawful access, alteration, disclosure, loss or destruction, having regard to the nature of the information and the risks involved; and (c) ensure our personnel who access that information are bound by appropriate obligations of confidentiality.

13.3 Each party will notify the other party without undue delay after becoming aware of any actual or reasonably suspected unauthorised access to, or disclosure, loss or corruption of, personal information held in connection with this Agreement (a “Data Breach”), and will provide reasonable cooperation to the other party in investigating and responding to the Data Breach.

13.4 On expiry or termination of this Agreement, we will at your written request and within a reasonable period either return to you or securely destroy any personal information held by us on your behalf, except to the extent we are required to retain that information by applicable law or for the purposes of our backup, audit or record-keeping processes (in which case the obligations in this clause will continue to apply to that information for so long as it is retained).

14. Force Majeure

14.1 Neither party will be liable for failure to perform or complete any of its obligations under this Agreement (other than an obligation to pay money) due to any causes beyond that party's reasonable control including, without limitation, changes in law, government direction, strike, lockout, labour disputes, fire, earthquake, flood, typhoon, tidal wave, landslide, lightning, explosion, Act of God, war, riot or civil commotion. Notwithstanding the foregoing, a force majeure event does not include: (a) lack of funds or any other financial cause; (b) defects in, or the failure of, hardware or software (other than where caused by an external event beyond the affected party's reasonable control); (c) any general shortage of labour, materials or supplies; or (d) any event the consequences of which could have been prevented or avoided by the exercise of reasonable foresight or the implementation of reasonable contingency or business continuity measures.

15. Dispute Resolution

15.1 If a dispute arises out of or in connection with these Terms and Conditions, the Services Agreement or a SOW (a “Dispute”), the parties will use the following procedure to resolve it before commencing court proceedings:

15.2 Either party may give the other party written notice of the Dispute, setting out reasonable particulars (“Dispute Notice”). The parties will first attempt to resolve the Dispute through good-faith discussions between their respective operational representatives within 10 Business Days of the Dispute Notice, including by reference to ticketing systems, emails and portal audit trails where relevant.

15.3 If the Dispute is not resolved within 10 Business Days of the Dispute Notice, the matter will be escalated to a senior representative of each party (with authority to settle the Dispute) for good-faith negotiation for a further 10 Business Days.

15.4 If the Dispute remains unresolved on completion of the process in clauses 15.2 and 15.3, either party may refer the Dispute to mediation administered by the Resolution Institute (or such other mediator or mediation body as the parties agree in writing) under the Resolution Institute Mediation Rules. The mediator’s fees will be shared equally and each party will bear its own costs of attending the mediation.

15.5 If the Dispute is not resolved within 30 Business Days of referral to mediation (or such longer period as the parties agree in writing), either party may commence court proceedings in accordance with clause 17.2.

15.6 Nothing in this clause prevents a party from seeking urgent interlocutory or injunctive relief from a court of competent jurisdiction at any time, or from terminating this Agreement in accordance with clauses 8.6 (Insolvency) or 8.7 (Material Breach).

15.7 Each party must continue to perform its obligations under this Agreement (and we must continue to provide the Services, subject to your payment of undisputed invoices) while a Dispute is being resolved under this clause 15.

16. Amendment of Terms and Conditions

16.1 We may update these Terms and Conditions from time to time, and will make the updated version available to you (including by publication, attachment to a Proposal, SOW, Services Order or reselling quote, or by such other means as we reasonably determine). The version of these Terms and Conditions in force at the time you (a) sign or place a new SOW or Services Order, or (b) auto-renew an existing engagement under clause 8.2, will apply to that SOW, Services Order or renewed term.

16.2 Existing SOWs and Services Orders will continue to be governed by the version of these Terms and Conditions in force when they were signed or placed, until they expire, are terminated, or renew.

16.3 Nothing in this clause prevents the parties from agreeing in writing to vary these Terms and Conditions, or any specific SOW or Services Order, on a bilateral basis.

17. General

17.1 If any provision of these Terms and Conditions is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of these Terms and Conditions will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).

17.2 These Terms and Conditions shall be governed by and construed in accordance with the laws of New Zealand. You irrevocably and unconditionally submit to the non-exclusive jurisdiction of the New Zealand courts in connection with these Terms and Conditions.

17.3 Notices: Any notice given under these Terms and Conditions must be in writing and sent to the receiving party at the address or email address last notified by that party for the purpose of receiving notices. A notice is deemed received: (a) if delivered personally, at the time of delivery; (b) if sent by post within New Zealand, on the third Business Day after posting; (c) if sent by international post, on the seventh Business Day after posting; and (d) if sent by email, at the time of transmission, unless the sender receives a delivery failure or out-of-office notification.

17.4 Assignment: You may not assign, novate or otherwise transfer any of your rights or obligations under these Terms and Conditions without our prior written consent (such consent not to be unreasonably withheld). We may assign or novate this Agreement to a related company or to a purchaser of all or substantially all of our business or assets on written notice to you.

17.5 Subcontracting: We may subcontract the performance of any of our obligations under these Terms and Conditions provided that (a) we remain responsible for the acts and omissions of our subcontractors as if they were our own, (b) any subcontractor performing material parts of the Services is bound by written terms that include confidentiality, data protection and intellectual property obligations no less protective than those in this Agreement, and (c) where a subcontractor contributes intellectual property to a Deliverable, we will use reasonable endeavours to obtain a back-to-back intellectual property indemnity from that subcontractor on terms substantially consistent with clause 9.4.

17.6 Entire Agreement: These Terms and Conditions, together with any Services Agreement, accepted Proposal, SOW or SO, and any reselling quote or order accepted under clause 1.1, constitute the entire agreement between the parties in relation to their subject matter and supersede all prior agreements, representations and understandings, whether written or oral, between the parties in relation to that subject matter.

17.7 Waiver: No failure or delay by either party in exercising any right, power or remedy under these Terms and Conditions will operate as a waiver of that right, power or remedy, nor will any single or partial exercise preclude any further exercise. A waiver of any provision of these Terms and Conditions will be effective only if given in writing and signed by the party giving the waiver.

17.8 Counterparts: These Terms and Conditions may be signed in any number of counterparts (including by electronic signature or exchange of signed copies by email), each of which will be deemed an original and all of which together will constitute one and the same instrument.

17.9 Survival: The following clauses survive expiry or termination of this Agreement for any reason: clause 2 (Definitions, to the extent necessary to interpret surviving provisions), clause 5 (Payment Terms, for amounts accrued prior to termination), clause 8.4 (invoicing on termination), clause 9 (Warranties, Limitation of Liability & Indemnity), clause 10 (Intellectual Property), clause 11 (Non-Solicitation of Personnel), clause 12 (Confidentiality), clause 13 (Data Protection and Security), clause 15 (Dispute Resolution), clause 17.2 (Governing Law and Jurisdiction), this clause 17.9, and any other provision of these Terms and Conditions which by its nature is intended to survive termination.

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