Vault - Subscription and Services Agreement

START DATE

The Date these terms and conditions are agreed to or signed 

END DATE

CONTACT DETAILS

asBuilt Vault Limited
57 Woodside Avenue
Northcote
Auckland 0627

EMAIL

support@asbuiltvault.com

CUSTOMER CONTACT DETAILS

As per the Settings of your instance within the Software. 

1.

INTERPRETATION 

1.1

Definitions - In the Agreement, the following terms have the stated meaning:  

Agreement - means Section A (Agreement and Key Details), Section B (General Terms), the Product Schedules and Statements of Work where and if applicable. 

asBuilt Software or Software or Licensed Software or asBuilt Vault Software means all and any software as developed by asBuilt (and its licensors), including but not limited to the Site, the Customer Retention Management, the software owned by asBuilt having the functionality described in the Product Schedule (as appropriate), the Payment Claims and the spatial asset management software. 

Confidential Information means 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. asBuilt’s Confidential Information includes Intellectual Property owned by asBuilt (or its licensors), including the asBuilt Vault Software. The Customer’s Confidential Information includes the Data. 

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

End Date means the end date set out in the Key Details.  

Entity means the legal entity using the Software.  

Fees means the fees and charges set out in the Product Schedules and Statements of Work. 

Force Majeure means an event that is beyond the reasonable control of a party, excluding means 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. 

Good Industry Practice means in relation to an undertaking, the exercise of that degree of skill and care which would reasonably be expected from an experienced operator engaging in the same or a similar undertaking. 

GST means goods and services tax within the meaning of the New Zealand Goods and Services Tax Act 1985.  

Intellectual Property Rights means includes copyright and all rights existing anywhere in the world 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 means the Agreement specific details set out in Section A of the Agreement. 

Licensed Software means any software that asBuilt provides to the Customer for installation on the Customer’s computers or infrastructure, as further described in the Product Schedule. 

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

PaaS Services means the provision of the asBuilt Vault Software on a platform-as-a-service basis, used interchangeable with the term PaaS Services, as further described in the Product Schedule. 

Permitted Users means those personnel of the Customer who are authorised to access and use the asBuilt Vault Software on the Customer’s behalf in accordance with clause 4.5. 

Personal Information means information about an identifiable individual (a natural person). 

Product Schedule means a document entitled Product Schedule that is governed by this Agreement in accordance with clause 2.1, for the provision of the asBuilt Vault Software to the Customer. 

Professional Services means any service outside the scope of the PaaS Service that asBuilt agrees to provide to the Customer under a Statement of Work. 

PaaS Services means the provision of the asBuilt Vault Software on a software-as-a-service basis, as further described in the Product Schedule.  

Services means the PaaS, PaaS Services and any Professional Services. 

Start Date means the start date set out in the Key Details. 

Statement of Work means a document entitled Statement of Work that is governed by this Agreement in accordance with clause 2.1, for the provision of professional services by asBuilt to the Customer. 

Underlying Systems means the IT solutions, systems and networks (including software and hardware) used to provide the PaaS Services, including any third party solutions, systems and networks. 

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

You or Customer or Client means the person acting as or on behalf of the Entity that is agreeing to use the Software. 

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:

   - a party to the Agreement includes that party’s permitted assigns;

   - personnel includes officers, employees, contractors and agents, but a reference to the Customer’s personnel does not include asBuilt;

   - 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;

   - including and similar words do not imply any limit;

   - $ and dollars is a reference to New Zealand dollars; and

   - 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. no term of the Agreement is to be read against a party because the term was first proposed or drafted by that party.

2.

AGREEMENT STRUCTURE

2.1

Product Schedules and Statements of Work:

The Agreement incorporates each Product Schedule and each Statement of Work:

1. attached to it on signing; or
2. stated to be subject to this Agreement and signed by the parties. 

Order of precedence:

Where any conflict exists between the documents comprising the Agreement, those documents have the following descending order of precedence:

1. Section B (General Terms);
2. Section A (Agreement and Key Details, including the cover page and signature clauses); and
3. Product Schedules and Statements of Work.

3.

PROVISION OF SAAS SERVICES AND LICENSED SOFTWARE 

Provision

1. asBuilt grants to the Customer, and the Customer accepts, a non-exclusive and non-transferable right for the duration of the Agreement for the Customer and its personnel to use:
   i.   the PaaS Services; and
   ii.  the Licensed Software,
   on the terms and conditions of the Agreement.
   
   
2. asBuilt will use reasonable efforts to provide the asBuilt Vault Software and the Services in accordance with:
   i.   the Agreement and applicable law; and
   ii.  Good Industry Practice.

Non-exclusive

asBuilt’s provision of the asBuilt Vault Software and the Services to the Customer is non-exclusive. Nothing in the Agreement prevents asBuilt from providing the asBuilt Vault Software or the Services to any other person.

PaaS Services availability:

1. Subject to clause 3.1b, asBuilt will use reasonable efforts to ensure the PaaS Services are available in accordance with the service levels set out in the relevant Product Schedule.
   
   
2. The PaaS Services interoperate with a range of third party service features. asBuilt does not make any warranty or representation on the availability of those features. Without limiting the previous sentence, if a third party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, asBuilt may cease to make available that feature to the Customer. To avoid doubt, if asBuilt exercises its right to cease the availability of a third party feature, the Customer is not entitled to any refund, discount or other compensation.

Professional Services

1. asBuilt may, from time to time, make Professional Services available to supplement the PaaS Services.
   
   
2. At the request of the Customer and subject to the Customer paying the applicable Fees, asBuilt may agree to provide to the Customer Professional Services on the terms of the relevant Statement of Work.

4.

CUSTOMER OBLIGATIONS

General use

The Customer and its personnel must:

1. use the asBuilt Vault Software and the Services in accordance with the Agreement solely for:
   i.   the Customer’s own internal business purposes; and
   ii.  lawful purposes; and
   
   
2. not resell or make available the asBuilt Vault Software or the Services to any third party, or otherwise commercially exploit the asBuilt Vault Software or the Services.

Co-operation and assistance

The Customer must reasonably co-operate with, and assist, asBuilt in the provision of the Services and any of its other obligations under the Agreement. In particular, the Customer must:

1. promptly make decisions (including approvals) and provide asBuilt with all information reasonably required to provide the Services; and
   
   
2. perform the functions, tasks and responsibilities, and provide the personnel, materials or other resources set out in a Product Schedule or Statement of Work in a timely manner.

Access conditions

When accessing the PaaS Services, the Customer and its personnel must:

1. not impersonate another person or misrepresent authorisation to act on behalf of others or asBuilt; correctly identify the sender of all electronic transmissions; not attempt to undermine the security or integrity of the Underlying Systems; not use, or misuse, the PaaS Services in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the PaaS Services; not use, and not permit any other person to use, a robot, spider, scraper or other unauthorised automated means to access the PaaS Services or information available on or through the PaaS Services for any purpose; not attempt to view, access or copy any material or data other than: that which the Customer is authorised to access; and to the extent necessary for the Customer and its personnel to use the PaaS Services in accordance with the Agreement; and neither use the PaaS Services 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.

Licensed Software

The Customer must:

1. not, translate, decompile, reverse-engineer, resell, modify, vary, sub-licence or otherwise deal in the Licensed Software except:
   i.   as expressly provided for in the Agreement; or
   ii.  to the extent expressly permitted by any applicable law or treaty where that law or treaty cannot be excluded, restricted or modified by the Agreement;
   
   
2. ensure the Licensed Software is protected at all times from misuse, damage, destruction or any form of unauthorised use, copying or disclosure; and
   
   
3. maintain all proprietary notices on the Licensed Software.

Personnel:

1. The Customer may authorise any member of its personnel to be a Permitted User and may, at any time, restrict Permitted Users’ access to certain features.
   
   
2. The Customer is responsible for determining the level of access granted to a Permitted User, for amending access rights (including granting or denying access to Data) as necessary from time to time, and for the deletion of any Permitted Users’ account that it no longer wishes to have access (e.g. where an employee ceases working for the Customer). asBuilt takes no responsibility for the level of access granted to a Permitted User or for the deletion of Permitted Users’ accounts.
   
   
3. The Customer must procure each Permitted User’s compliance with clauses 4.1, 4.3 and 4.4 and any other reasonable condition notified by asBuilt to the Customer.
   
   
4. A breach of any term of the Agreement by the Customer’s personnel (including, to avoid doubt, a Permitted User) is deemed to be a breach of the Agreement by the Customer.

Authorisations: 

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

5

DATA

5.1

asBuilt access to Data:

1. The Customer acknowledges that:
   i.   asBuilt may require access to the Data to exercise its rights and perform its obligations under the Agreement; and
   ii.  to the extent that this is necessary but subject to clause 8, asBuilt may authorise a member or members of its personnel to access the Data for this purpose.
   
   
2. The Customer must arrange all consents and approvals that are necessary for asBuilt to access the Data as described in clause 5.1a.

5.2

Analytical Data:

The Customer acknowledges and agrees that:

1. asBuilt may:
   i.    use Data and information about the Customer’s and the Customer’s end users’ use of the PaaS Services to generate anonymised and aggregated statistical and analytical data (Analytical Data); and
   ii.   use Analytical Data for asBuilt’s internal research and product development purposes and to conduct statistical analysis and identify trends and insights; and
   iii.   supply Analytical Data to third parties;
   
   
2. asBuilt’s rights under clause 5.2a above will survive termination of expiry of the Agreement; and
   
   
3. title to, and all Intellectual Property Rights in, Analytical Data is and remains asBuilt’s property.

5.3

Agent:

1. The Customer acknowledges and agrees that to the extent Data contains Personal Information, in collecting, holding and processing that information through the Services, asBuilt is acting as an agent of the Customer for the purposes of the New Zealand Privacy Act 1993 and any other applicable privacy law.
   
   
2. The Customer must obtain all necessary consents from the relevant individual to enable asBuilt to collect, use, hold and process that information in accordance with the Agreement.

5.4

International storage of Data:

The Customer agrees that asBuilt may store Data (including any Personal Information) in secure servers in New Zealand, Australia and additional overseas territories and may access that Data (including any Personal Information) in New Zealand, Australia and additional overseas territories from time to time.

5.5

Indemnity:

The Customer indemnifies asBuilt against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by the asBuilt’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.

6.

FEES

6.1

FX

6.2

Invoicing and payment:

1. asBuilt will invoice the Customer on the dates set out in the Product Schedule or the relevant Statement of Work, or if there are none, monthly in arrears for the Fees due in relation to the previous month.
   
   
2. The Customer must pay the Fees:
   i.   on or before the dates set out in the Product Schedule or the relevant Statement of Work or, if none are stated, on or before the 20th of the month following the date of the invoice; and
   ii.  without any set off or deduction.

6.3

Overdue amounts:

asBuilt 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 asBuilt’s primary trading bank as at the due date (or, if asBuilt’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.

7.

INTELLECTUAL PROPERTY

7.1

Ownership:

1. Subject to clause 7.1b, title to, and all Intellectual Property Rights in the Licensed Software, PaaS Services and all Underlying Systems is and remains the property of asBuilt (and its licensors). The Customer must not contest or dispute that ownership, or the validity of those Intellectual Property Rights.
   
   
2. Title to, and all Intellectual Property Rights in, the Data (as between the parties) remains the property of the Customer. The Customer grants asBuilt 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.

7.2

Know-how:

To the extent not owned by asBuilt, the Customer grants asBuilt a royalty-free, transferable, irrevocable and perpetual licence to use for asBuilt’s own business purposes any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by asBuilt in the provision of the Services.

7.3

Feedback:

If the Customer provides asBuilt with ideas, comments or suggestions relating to the asBuilt Vault Software, 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 asBuilt; and
   
   
2. asBuilt may use or disclose the feedback for any purpose.

8

CONFIDENTIALITY

8.1

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. 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 8.1a and 8.1b.

8.2

Permitted disclosure:

The obligation of confidentiality in clause 8.1 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 asBuilt 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 asBuilt enters into a confidentiality agreement with the third party on terms no less restrictive than this clause 8.

9

WARRANTIES

9.1

Mutual warranties:

Each party warrants that it has full power and authority to enter into and perform its obligations under the Agreement which, when signed, will constitute binding obligations on the warranting party.

9.2

No implied warranties:

To the maximum extent permitted by law:

1. asBuilt’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 (including any warranties of merchantability or fitness for purpose) are expressly excluded and, to the extent that they cannot be excluded, liability for them is limited as set out in clause 10.1; and
   
   
2. asBuilt makes no representation concerning the quality of the asBuilt Vault Software or Services and does not promise that the asBuilt Vault Software or Services will:
   i.   meet the Customer’s requirements or be suitable for a particular purpose; or
   ii.  be secure, free of viruses or other harmful code, uninterrupted or error free.

9.3

Third party sites and material:

The Customer acknowledges that the PaaS Services may link to third party websites or feeds that are connected or relevant to the PaaS Services. Any link from the PaaS Services does not imply any asBuilt endorsement, approval or recommendation of, or responsibility for, those websites or feeds or their content or operators. To the maximum extent permitted by law, asBuilt excludes all responsibility or liability for those websites or feeds.

9.4

Parties in trade:

The Customer agrees and represents that it is acquiring the Licensed Software, the Services, and entering the Agreement, for the purposes of trade. The parties agree that:

1. to the maximum extent permissible by law, no consumer protection legislation applies to the supply of the Licensed Software, the Services or the Agreement; and
   
   
2. it is fair and reasonable that the parties are bound by this clause 9.4.

9.5

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 asBuilt for any breach of that condition or warranty is limited, at asBuilt’s option, to:

1. supplying the Licensed Software and/or Services (as applicable) again; and/or
   
   
2. paying the costs of having the Licensed Software and/or Services (as applicable) supplied again.

10

LIABILITY

10.1

asBuilt liability:

asBuilt’s maximum aggregate liability in relation to:

1. the asBuilt Vault Software and the Services (other than Professional Services) will not exceed the total amount paid by the Customer to asBuilt for the asBuilt Vault Software and Services (other than Professional Services) during the 1 month period immediately preceding the first event giving rise to liability; and
   
   
2. any Professional Services will not exceed the total amount paid by the Customer to asBuilt under the relevant Statement of Work.

10.2

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.

10.3

Unlimited liability:

1. Clauses 10.1 and 10.2 do not apply to limit asBuilt’s liability:
   i.     under or in connection with the Agreement for:
   ii.    personal injury or death;
   iii.   fraud or wilful misconduct; or
   iv.   a breach of clause 8.
   
   
2. Clause 10.2 does not apply to limit the Customer’s liability:
   i.     to pay the Fees;
   ii.    under the indemnity in clause 5.6; or
   iii.   for those matters stated in clause 10.3aii.

10.4

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.

10.5

Mitigation:

Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with the Agreement.

11

TERM, TERMINATION AND SUSPENSION

11.1

Duration:

Unless terminated under this clause 11, the Agreement:

1. starts on the Start Date and ends on the End Date; but
   
   
2. where no End Date is set out in the Key Details, continues for successive terms of 12 months from the Start Date unless a party gives 90 days’ notice that the Agreement will terminate on the expiry of the then-current term.

11.2

Termination rights:

1. Either party may, by notice to the other party, immediately terminate the Agreement if the other party:
   i.     breaches any material provision of the Agreement and the breach is not:
   ii.    remedied within 10 days of the receipt of a notice from the first party requiring it to remedy the breach; or
   iii.   capable of being remedied;
   iv.   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;
   v.    is unable to perform a material obligation under the Agreement for 30 days or more due to Force Majeure; or
   iv.   is no longer able to lawfully receive or provide the PaaS Services (as applicable).

11.3

Termination of Product Schedules and Statements of Work:

1. Each Product Schedule and Statement of Work will terminate:
   i.      on termination of the Agreement under clause 11.2a or 11.2b;
   ii.     on the end date (if any) specified in the Product Schedule or Statement of Work; or
   iii.    in accordance with any additional rights to terminate set out in the Product Schedule or Statement of Work.
   
   
2. Where a party has a right to terminate the Agreement under clause 11.2 it may, at its discretion and to the extent practicable, instead of terminating the Agreement in full terminate the affected Product Schedule or Statement of Work and any Product Schedule or Statement of Work that the terminating party considers to be associated with that affected Product Schedule or Statement of Work.
   
   
3. Clause 11.4 applies, with all necessary changes, to the termination of Product Schedules and Statements of Work.

11.4

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 Customer 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 and subject to clause 11.4d, 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 Customer may request:
   i.     a copy of any Data stored using the PaaS Service, provided that the Customer pays asBuilt’s reasonable costs of providing that copy. On receipt         of that request, asBuilt must provide a copy of the Data in a common electronic form. asBuilt does not warrant that the format of the Data will           be compatible with any software; and/or
   ii.    deletion of the Data stored using the PaaS Service, in which case asBuilt must use reasonable efforts to promptly delete that Data.
   
   
   To avoid doubt, asBuilt is not required to comply with clause 11.4di to the extent that the Customer previously requested deletion of the Data.

11.5

Obligations continuing:

Clauses which, by their nature, are intended to survive termination or expiry of the Agreement, including clauses 5.4, 7, 8, 10, 11.4, 11.5 and 12, continue in force.

11.6

Rights to restrict:

Without limiting any other right or remedy available to asBuilt, asBuilt may restrict or suspend the Customer’s access to the PaaS Service and/or delete, edit or remove the relevant Data if asBuilt considers that the Customer (including any of its personnel) has:

1. undermined, or attempted to undermine, the security or integrity of the PaaS Service or any Underlying Systems;
   
   
2. used, or attempted to use, the PaaS Service:
   i.     for improper purposes; or
   ii.    in a manner, other than for normal operational purposes, that materially reduces the operational performance of the PaaS Service;
   
   
3. transmitted, inputted or stored any Data that breaches or may breach the Agreement or any third party right (including Intellectual Property Rights and privacy rights), or that is or may be Objectionable, incorrect or misleading; or
   
   
4. otherwise materially breached the Agreement.

11.7

Process:

asBuilt must notify the Customer where it restricts or suspends the Customer’s access, or deletes, edits or removes Data, under clause 11.6.

12

DISPUTES

12.1

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.

12.2

Obligations continue:

Each party must, to the extent possible, continue to perform its obligations under the Agreement even if there is a dispute.

12.3

Right to seek relief:

This clause 12 does not affect either party’s right to seek urgent interlocutory and/or injunctive relief.

13

GENERAL

13.1

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.

13.2

Rights of third parties:

No person other than asBuilt and the Customer has any right to a benefit under, or to enforce, the Agreement.

13.3

Marketing:

asBuilt reserve the right to use

13.4

Waiver:

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

13.5

Independent contractor:

Subject to clause 5.3, asBuilt is an independent contractor of the Customer, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under the Agreement.

13.6

Notices:

All notices and communications given under the Agreement must be in writing and will be delivered personally, sent by post or sent by email to the address or email address set out in the Key Details (or at such other address as notified from time to time by the party changing its address).

13.7

Time of service:

Any notice given under the Agreement will be deemed to be validly given:

1. in the case of delivery, when received;
   
   
2. in the case of posting, on the second day following the date of posting; or
   
   
3. if emailed, one hour after the email is sent unless a return email is received by the sender within that one hour period stating that the addressee’s email address is wrong or that the message cannot be delivered,
   
   provided that any notice received after 5 pm (in the timezone of the recipient) on a working day (at the location of the recipient) or on any day that is not a working day (at the location of the recipient) will be deemed to have been received on the next such working day.

13.8

Severability:

1. If any provision of the Agreement is, or becomes, illegal, unenforceable or invalid, the relevant provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity.
   
   
2. If modification under clause 13.7a is not possible, the provision must be treated for all purposes as severed from the Agreement without affecting the legality, enforceability or validity of the remaining provisions of the Agreement.

13.9

Variation:

Subject to clause 6.3, any variation to the Agreement must be in writing and signed by both parties.

13.10

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.

13.11

Subcontracting and assignment:

1. The Customer may not assign, novate, subcontract or transfer any right or obligation under the Agreement without the prior written consent of asBuilt, that consent not to be unreasonably withheld. The Customer 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 Customer is deemed to be an assignment for which asBuilt’s prior written consent is required under clause 13.10a. In this clause change of control means any transfer of shares or other arrangement affecting the Customer or any member of its group which results in a change in the effective control of the Customer.

13.12

Counterparts:

The Agreement may be signed in counterparts, each of which constitutes an original and all of which constitute the same agreement. A party may enter the Agreement by signing and emailing a counterpart copy to the other party.