Here at Visio, we do our best you provide our clients with top quality production and customer service, to achieve this we have a few things we have to run through. Below is our master agreement; please read thoroughly. Any questions, please don't hesitate to contact us.
1. SERVICES, WORK ORDERS, AND CHANGE ORDERS
1.1. Services. Subject to the terms and conditions of this Agreement and at the Client’s request and direction, Visio will perform for the Client the services described in one or more Work Orders (as deﬁned below) (the “Services”). The execution of this Agreement does not oblige Visio to undertake any projects for the Client and Visio will be free to accept and reject jobs from the Client on a per-project basis.
1.2. Work Orders. The speciﬁc details of the Services to be performed will be determined on a per-project basis, and the details for each project will be described in a written work order, that is executed by both parties (each, a “Work Order”). Once executed by both parties, each Work Order will be a unique agreement that incorporates the terms of this Agreement and stands alone with respect to all other Work Orders. If there is a conﬂict between the terms of this Agreement and the terms of a Work Order, the terms of this Agreement will prevail unless the Work Order states that a speciﬁc provision of this Agreement will be superseded by a speciﬁc provision of the Work Order.
1.3. Change Orders. Unless otherwise speciﬁed in a Work Order, the Client may reasonably request in writing that changes be made in respect to the Services or deliverables set forth in that Work Order (each, a “Change Order”). If a Change Order requires (a) changes to the Client’s personnel allocated to such Work Order pursuant to Section 2.1 or (b) materially increases the scope of the Services or the eﬀort required to deliver deliverables under the applicable Work Order, then within 5 working days after Visio’s receipt of such Change Order, Visio will deliver to Client a written, revised Work Order with revised Services, deliverables, delivery schedule and payment schedule based on the Change Order. If the Client approves the revised Work Order, the parties will sign the same to accept the changes and then the revised Work Order will supersede the then-existing Work Order. If the Client does not approve the revised Work Order within 5 working days after its receipt by the Client, the then-existing Work Order will remain in full force and eﬀect, and Visio will have no further obligation with respect to the applicable Change Order.
1.4. Project Delay. Visio shall inform the Client as soon as practical of any anticipated delays in the delivery of any deliverable or any item speciﬁcally set forth in any Work Order and of the actions being taken to assure completion of the such item. If such delay is the result of any action or inaction by the Client, Visio will provide the Client with written notice that such a delay is anticipated or has occurred, and the reason(s) for the delay relative to the action or inaction of the Client. If the Client fails to remedy the delay within 10 calendar days, Visio may, at its sole option, terminate this Agreement and pursue all remedies and collect all amounts owed pursuant to Section 6.2(b). Notwithstanding any delay on the part of the Client, Visio shall make commercially reasonable eﬀorts to continue work on the Work Order, and shall halt work only to the extent that work cannot reasonably continue without corrective action on the part of the Client. If work on the Work Order is halted in accordance with this Section 1.4, then, unless a notice of default has been given to the Client by Visio pursuant to this Section 1.4 terminating this agreement, work shall resume as soon as commercially possible after the Client has taken such corrective action on its part as is necessary and has provided notice of such corrective action to Visio.
2. PERFORMANCE OF SERVICES
2.1. Project Management. For each Work Order, each party will designate a single point of contact within its organisation to manage the projects described in such Work Order (each, a “Project Leader”). In addition, all personnel of the Client who will contribute to the projects described in such Work Order shall be identiﬁed in writing (via e-mail or other such method mutually agreeable amongst the Parties) to Visio at the time of commencement of the Services associated with such Work. Except as otherwise speciﬁed in a Work Order, Visio’s Project Leader will only receive direct instructions from the Client’s Project Leader, but will reasonably work with the Client’s other personnel in connection with performing the Services set forth in the applicable Work Order. Any request by the Client to add any new personnel to any projects described in any Work Order after commencement of the Services associated with such Work Order or any request to replace the Client’s Project Leader shall be considered a Change Order pursuant to the terms of Section 1.3 of this Agreement. The Project Leaders will meet as necessary to manage the Services to be performed under a Work Order. Visio’s Project Leader will provide the Client’s Project Leader with regular reports on the status of the Services.
2.2. Release. On behalf of all personnel of the Client who will contribute to the projects described in any Work Order as well as any other parties participating in such project at the direction of or by the request of the Client, the Client hereby grants the following rights and permissions to Visio (subject to anything to the contrary in a Work Order):
(a) Visio has the absolute right and permission to take, use, reuse, publish, and republish video and/or photographic images (in any media whether electronic, digital, recorded or otherwise) of those recorded or photographed, including any minors, or in which any minor may be included, in whole or in part, or composite or distorted in character or form, without restriction as to changes or alterations from time to time, in conjunction with the adult’s or minor’s own or a ﬁctitious name, or reproductions of such videos or photographs in color or otherwise, made through any medium and in any and all media now or hereafter known.
(b) the Client speciﬁcally consents to the digital compositing or distortion of any such media, including without restriction any changes or alterations as to color, size, shape, perspective, context, foreground or background.
(c) the Client releases, discharges, and agrees to hold harmless and defend Visio, its legal representatives or assigns, and all persons acting under its permission or authority or those for whom Visio is acting, from any liability by virtue of any reason in connection with the making and use of such videos or photographs, including blurring, distortion, alteration, optical illusion, or use in composite form, whether intentional or otherwise, that may occur or be produced in the taking of said recording or picture or in any subsequent processing thereof, as well as any publication of them, including without limitation any claims for defamation or violation of any right of publicity or privacy.
(d) the Client hereby warrants that they have legal authority to make such an agreement on behalf of any personnel of the Client as well as any other parties participating in such project at the direction of or by the request of the Client or minor present in connection with the Services. This release contained in this Section 2.2 shall be binding upon the Client, and the Client’s representatives, successors and permitted assigns.
2.3. Personnel. The Services must be performed in a competent, professional, and workmanlike manner by qualiﬁed personnel in accordance with all applicable laws.
2.4. Subcontractors. Visio may utilise independent contractors to perform all or part of the Services. Visio will remain solely responsible for the performance of all of the Services that are subcontracted.
2.5. Exclusive Representation. Except as expressly set forth to the contrary in a Work Order, the Client agrees that during the term of this Agreement Visio shall be the exclusive provider of Services pursuant to any Work Order and the Client shall not, without Visio’s prior written consent, engage any other party to provide services related to any project described in any Work Order. In the event of any engagement in violation of this Section 2.5, Visio shall be entitled to immediately terminate this Agreement and the provisions of Section 6.2(b) herein shall apply.
2.6. Materials. Except as otherwise speciﬁed in a Work Order, Visio will be responsible for and supply all necessary equipment, materials, and other resources required to perform the Services, provided that the cost of the same will be met by the Client and included in the Service Fees..
2.7. Client Materials; Licence. Any materials provided by Client to Visio are to be used solely to perform the Services (“Client Materials”). Visio will treat the Client Materials as the Client’s Conﬁdential Information (as deﬁned below). The Client hereby grants to Visio a non-exclusive, worldwide, royalty free licence in and to any deliverables under the applicable Work Order and Client Materials, under all of the Client’s intellectual property rights therein, solely for the purpose of performing the Services contemplated by any Work Order in accordance with the terms of this Agreement. Client also hereby grants to Visio a non-exclusive, worldwide, royalty-free licence to use any one or more of the trademarks, service marks, trade names, domain names, logos, business and product names, slogans, and registrations and applications for registration thereof owned by Client (the“Client Brand”) solely for the purpose of performing the Services contemplated by any Work Order in accordance with the terms of this Agreement.
2.8. Data Protection. The Client will be solely responsible for ensuring that the Client has a back-up of any data or digital media, digital content, information, files or hardware provided to Visio at any time during the term of this agreement. Visio will not be liable for failure to store, loss of or corruption of the Client’s data, information or files.
3. DELIVERABLES; ACCEPTANCE OF DELIVERABLES
3.1. Initial Delivery. Visio will notify the Client when Visio believes that it has appropriately completed a deliverable and will deliver the deliverable to the Client in the format speciﬁed in the applicable Work Order for the Client’s acceptance in accordance with the terms of this Section 3.
3.2. Inspection. After Visio’s delivery of each deliverable, the Client will have 5 working days to inspect the deliverable to verify that it conforms in all respects to the applicable speciﬁcations speciﬁed in the applicable Work Order. If the Client has not delivered a Rejection Notice (as defined below) within 5 working days of receipt of delivery such deliverable will be deemed automatically accepted by the Client.
3.3. Rejection Notice. If the Client reasonably determines in good faith that the deliverable does not conform to the applicable speciﬁcations or does not otherwise meet the applicable acceptance criteria set out in the relevant Work Order, the Client will promptly notify Visio by written notice which sets out a description of the nonconformities exhibited by the deliverable (“Rejection Notice”).
4. THIRD PARTY MATERIALS
4.1. Sublicense from Visio. If a Work Order requires Visio to obtain, for use in connection with the Services or incorporation into an Invention (as deﬁned in Section 8.1), any material from a third party from whom Visio has been granted an appropriate right of sublicense, then, with prior approval from the Client, Visio will duly sublicense the third party materials to the Client to the extent necessary for the Client to fully utilise the Invention. Visio will grant the sublicense to the Client subject to the terms and conditions of any applicable sublicense agreements required by the third party; and the sublicense agreement will be executed by the parties and attached as part of the applicable Work Order.
4.2. Visio’s Obligation to Seek a License. If a Work Order requires Visio to obtain, for use in connection with the Services or incorporation in to an Invention, any material from a third party from whom Visio or the Client has not acquired the necessary right or license for the use or incorporation, then Visio will make good faith and diligent eﬀorts to license the third party material from the third party on the Client’s behalf. If successful Visio will forward to the Client all communications and invoices received from the third party by Visio. Unless otherwise speciﬁed in a Work Order, the Client will be responsible for all costs associated with Visio performing its obligations under this Section 4.2.
4.3. Client’s Obligation to Seek a License. If a Work Order requires the Client to obtain, for use in connection with the Services or incorporation into an Invention, any material from a third party from whom Visio or the Client has not acquired the necessary right or license for the use or incorporation, then the Client will, at its sole expence, acquire the necessary right or license to the third party material.
5. FEES & PAYMENTS
5.1. Fees. The Client will pay the fees as set out in each Work Order (“Service Fees”). Reimbursement of any costs and expenses shall be as specified in any Work Order or as otherwise agreed between the parties in writing.
5.2. Payment. Visio will invoice the Client on the dates specified in the relevant Work Order or if no dates are specified on a monthly basis. Invoices shall be payable by the Client by the 20th of the month following issue of invoice unless alternative arrangements have been made with Visio or the Work Order stipulates otherwise. Unless otherwise specified in this agreement all prices are in NZ dollars and are exclusive of Goods and Services Tax (“GST”), which the Client must pay. All payments must be made in New Zealand dollars.
5.3 Disputed Invoices. If the Client disputes an invoice the Client must give notice within 5 working days of receipt of the invoice advising Visio of the reasons why the invoice is disputed and pay any undisputed amount. If notice is not given within 5 working days the Client will be deemed to have accepted the invoice.
5.4 Overdue Service Fees: Subject to Section 5.3 where any invoice is not paid in full and on time then Visio shall be entitled to:
(1) charge an over due fee of $40 , or 3% of the outstanding bill, whichever is greater.
(2) to suspend work under any current Work Order/s.
The Client shall also be liable for any costs and expenses incurred by Visio (including (without limitation) costs as between solicitor and own client) in the recovery or attempted recovery of any overdue amounts from the Client.
6. TERM AND TERMINATION
6.1. Term. This Agreement will commence on the date it is signed by both parties and continue for 12 months from that date, after which time the term of this Agreement shall automatically renew for successive 12 month periods unless either party delivers written notice to the other party of its desire to terminate this Agreement, at least 30 days prior to any such automatic renewal. Notwithstanding the foregoing, in the event that any Work Order has not been completed as of the date that this Agreement terminates, this Agreement, along with any such Work Order shall continue to be eﬀective until the completion of such Work Order unless speciﬁcally terminated in accordance with the terms of this Agreement or the terms of such Work Order.
6.2. Termination; Termination Fee.
(a) The Client may terminate this Agreement upon written notice to Visio if Visio is in breach of any material provision of this Agreement and such breach is not remedied or an acceptable explanation submitted to the Client within 14 days of the date of the written notice.
(b) In the event of any termination of this Agreement by Visio or by the Client pursuant to any section of this Agreement other than pursuant to Section 6.2(a) above, the Client shall pay to Visio within 5 working days of the date of such termination:
(i) in consideration of Visio forgoing other business opportunities in anticipation of the Services that otherwise would have been provided to the Client pursuant to this Agreement, a termination fee equal to 15% of the total unpaid amounts of any Service Fees associated with any then outstanding Work Order;
(ii) any undisputed amount set forth in any invoices delivered pursuant to Section 5; and
(iii) any and all other out of pocket costs and expenses speciﬁed in any then outstanding Work Order (including, but not limited to, any upfront costs paid by Visio related to any third party independent contractor speciﬁed in any applicable Work Order) that has actually been incurred by Visio in anticipation of fulﬁllment of any then outstanding Work Order prior to delivery of the written notice of termination by Client.
6.3. Survival. Upon termination, all rights and obligations of the parties under this Agreement shall cease except that Sections 2.2, 2.7, 6.2, 6.3, 7, 8, 9, 10, and 11 will survive termination or expiration of this Agreement.
7.1. Deﬁnition. “Conﬁdential Information” means any nonpublic information that relates to the actual or anticipated business, research, or development of the Client and any proprietary information, trade secrets, and knowhow of the Client that are disclosed to Visio by the Client or its agents, directly or indirectly, in writing, orally, or by inspection or observation of tangible items. Conﬁdential Information includes research, development, and commercialisation plans, processes, techniques, formulas, prototypes, and all information generated by Visio in the performance of the Services. Conﬁdential Information includes information that is deﬁned as “Conﬁdential Information” under any other agreement between the parties. Conﬁdential Information also includes the conﬁdential information of third parties that has been provided to the Client. Conﬁdential Information is the sole property of the Client.
7.2. Exceptions. Conﬁdential Information does not include any information that Visio can demonstrate was publicly known and made generally available in the public domain before the Client disclosed the information to Visio, or became publicly known and made generally available, after disclosure to Visio by the Client, through no wrongful action or inaction of Visio or was in Visio’s possession, without conﬁdentiality restrictions, at the time of disclosure by the Client, as shown by Visio’s ﬁles and records, or was independently developed without use of or reference to the Conﬁdential Information.
7.3. Nondisclosure and Nonuse. Except in connection with any Conﬁdential Information contained in any Final Edit Version of any deliverable that the Client has granted Visio a limited license to use pursuant to Section 8.4 of this agreement, Visio will not, during and after the term of this Agreement, disclose the Conﬁdential Information to any third party or use the Conﬁdential Information for any purpose other than the performance of the Services on behalf of the Client. Visio will take all reasonable precautions to prevent any unauthorised disclosure of the Conﬁdential Information including, but not limited to, requiring each employee and independent contractor with access to Conﬁdential Information to execute a non-disclosure agreement containing terms that are substantially similar to the terms contained in this Agreement. Visio will not, during and after the term of this Agreement, reverse engineer the Conﬁdential Information.
7.4. Supersede Existing Obligations. The obligations in this Section 7 replaces and supersedes in full each party’s obligations of conﬁdentiality and nondisclosure under the terms of any conﬁdentiality or non-disclosure agreement between the parties.
Except as expressly set out to the contrary in a Work Order, prior to payment by the Client to Visio of the applicable Service Fee related to any Work Order, ownership of Inventions (as deﬁned in Section 8.1) and related intellectual property rights associated with the Final Edit Versions (as deﬁned below) of any deliverable delivered pursuant to such Work Order will be vested in Visio. Upon payment by the Client to Visio of the applicable Service Fee related to any Final Edit Versions of any deliverable delivered pursuant to any Work Order, ownership of Inventions and related intellectual property rights associated with such Final Edit Version of such deliverable delivered pursuant to such Work Order will be allocated as follows:
8.1. Inventions. All works of authorship, inventions, discoveries, improvements and information conceived, discovered, developed or otherwise made (as necessary to establish authorship, inventorship, or ownership) by Visio, solely or in collaboration with others, solely as they relate to Final Edit Version of a deliverable delivered pursuant to such Work Order; that reﬂect or contain the Client’s Conﬁdential Information; or that form all or part of a Final Edit Version of a deliverable provided as part of the Services; in each case whether developed as part of the Services or separately, but excluding Pre-Existing Works (as deﬁned in Section 8.2) or Visio Work Product (as deﬁned in Section 8.3)(collectively, “Inventions”) will be the sole property of the Client
8.2. PreExisting Works. If in the course of performing the Services, Visio incorporates into any deliverable or Invention any other work of authorship, invention, discovery, improvement or information existing before the Eﬀective Date that is owned or controlled by Visio (a “Pre-Existing Work”) or Visio Work Product (as deﬁned in Section 8.3), Visio will grant and does now grant to the Client a nonexclusive, royalty free, perpetual, irrevocable, worldwide licence to reproduce, manufacture, modify, distribute, import, and otherwise use the Pre-Existing Work or Visio Work Product, as applicable, as part of or in connection with the deliverable or Invention.
8.3. Final Edit Versions. Unless otherwise speciﬁed in a Work Order, all deliverables set forth in any Work Order, subject to acceptance of such deliverable by the Client pursuant to the terms of Section 3, shall be delivered to the Client containing all edits and adjustments deemed necessary by Visio to satisfy the applicable acceptance criteria set forth in the relevant Work Order, if any (each such deliverable accepted by the Client pursuant to the terms of Section 3, a “Final Edit Version”). with any Work Order Visio shall only deliver to the Client, and the Client shall only retain ownership in, the Final Edit Version of any deliverable and ownership of all other intellectual property and work product (including, but not limited to any and all processes, techniques, formulas, analysis, strategies, tactics, methods, procedures, material(s) and footages created but not used in any deliverables such as outtakes and B-roll, and other operational instructions whether or not protectable under applicable law, that are created for the Client by Visio and whether they be created by independent contractors, employees or subcontractors of Visio) associated with such deliverables (the “Visio Work Product”) shall be retained by Visio.
8.4. Limited Publicity License. Unless otherwise speciﬁed in a Work Order, the Client hereby grants to Visio a non-revocable, non-exclusive, worldwide, royalty-free license to use the Client Brand and any Final Edit Version of any deliverable solely for the purpose of use in connection with Visio’s physical or electronic portfolio and/or website that Visio shows to other potential clients in the ordinary course of Visio’s business.
9.1. Client Warranties. The Client warrants that:
(1) anything provided or supplied to Visio by the Client for the purposes of creating or delivering the deliverable or Invention will not breach the intellectual rights of any third party; and
(2) no characteristic of the deliverable or Invention created will breach the intellectual rights of any third party; and
(3) the Client has obtained a right or licence to use any third party materials or intellectual property to be incorporated or used in the creation or delivery of the deliverable or Invention.
9.2. Reliance. The Client acknowledges that Visio will rely on the warranties contained in Section 9.1 and accordingly fully indemnifies and will keep indemnified Visio from and against all loss, costs, expenses, demands or liability, whether direct, indirect or consequential or otherwise, and whether arising in contract, tort (including negligence), or equity or otherwise, arising out of a claim by a third party alleging infringement of that third party’s intellectual property rights.
9.3. Visio Warranties. Visio warrants that the Services will be performed in a timely, competent, professional, and workmanlike manner by qualiﬁed personnel.
(a) Subject to Section 11.4 herein Visio will indemnify, the Client and its directors, oﬃcers, agents, successors, and assigns from and against all losses, damages, liabilities, costs, and expenses, including Solicitors’ fees and other legal expenses, arising directly or indirectly from or in connection with: any negligent, reckless, or intentional act of Visio or Visio’s, employees or agents; any breach by Visio or Visio’s employees or agents of any of the covenants, warranties, or representations contained in this Agreement; any failure of Visio to perform the Services in accordance with all applicable laws, rules, and regulations; any violation or claimed violation of a third party’s rights resulting in whole or in part from Client’s use of the work product of Visio or deliverables under this Agreement (except in connection with any violation or claimed violation of a third party’s rights that Client was obligated to obtain a right or license from pursuant to the terms of this Agreement); or injuries to persons that occur on Visio’s premises or premises under Visio’s control.
(b) The Client will indemnify Visio and its agents, successors, and assigns from and against all losses, damages, liabilities, costs, and expenses, including Solicitors’ fees and other legal expenses, arising directly or indirectly from or in connection with: any negligent, reckless, or intentional the act of Client or the Client’s directors, employees or agents; any breach by the Client or the Client’s directors, employees or agents of any of the covenants, warranties, or representations contained in this Agreement; any failure of the Client to comply with all applicable laws, rules, and regulations; any violation or claimed violation of a third party’s rights resulting in whole or in part from any violation or claimed violation of a third party’s rights that the Client was obligated to obtain a right or license from pursuant to the terms of this Agreement; or injuries to persons that occur on the Client’s premises or premises under the Client’s control.
10.2. Intellectual Property Infringement. In the event of any claim concerning the intellectual property rights of a third party that would prevent or limit Client’s use of the Inventions (except in connection with any violation or claimed violation of a third party’s rights that Client was obligated to obtain a right or license from pursuant to the terms of this Agreement), Visio will, in addition to its obligations under Section 10.1, take one of the following actions at its sole expense:
(a) procure for the Client the right to continue use of the Invention or infringing part thereof; or
(b) modify or amend the Invention or infringing part thereof, or replace the Invention or infringing part thereof with another Invention having substantially the same or better capabilities.
11.1. Services and Information Prior to this Agreement. All services performed by Visio and all information and materials provided to Visio by the Client prior to the date of this agreement will be governed by the terms of this agreement.
11.2. Independent Contractor. Visio is an independent contractor to the Client and is in all respects independent of the Client. Nothing in this Agreement constitutes either party a partner, agent, employee or joint venturer of the other.
11.3. Force Majeure: Visio shall not be liable for any failure to perform its obligations under this Agreement if it is unable to perform as a direct or indirect result of a Force Majeure Event. Any such suspension of performance must be limited to the period during which the Force Majeure Event continues. Force Majeure Event shall include any war, riot, strike, natural or man-made disaster, cyber-attack or IT failure due to malicious third party software or other circumstance of a similar nature.
11.4. Liability. If Visio is liable for any losses arising out of this Agreement Visio’s total aggregate liability to the Client, whether incurred in one claim or cumulatively incurred from multiple claims, shall not exceed the total amount paid by the Client to Visio in the 12 months preceding the event giving rise to the first claim. To the maximum extent permitted by law Visio shall not be liable to the Client for any indirect, punitive, special, incidental or consequential damage in connection with or arising out of this agreement (including for loss of profits, loss of business or other economic advantage), however, it arises, whether for breach of this agreement or in tort (including negligence), and even if Visio has been previously advised of the possibility of such damage.
11.5. Non-exclusive. The Client acknowledges that Visio is providing Services to the Client on a non-exclusive basis and that Visio may provide services of the same or a similar nature as the Services to any other party. Visio is free to provide services to any other party at such times and on such terms Visio in Visio’s sole discretion sees fit, whether or not that other party is in competition with the Client and whether or not Visio is providing services which relate to a contract which one or more Clients are competing for. if the Client is aware that the Work Order will involve a conflict with an existing Visio client the Client will immediately notify Visio of this. In writing, properly addressed and delivered personally or sent by mail or by email to the other party at the address, email address specified below. In the case of delivery by email notice will be deemed to be served when receipt of the email is acknowledged by the party, either orally or by return email or otherwise in writing.
11.6. Disputes Resolution. Where any dispute arises between the parties concerning this Agreement or the circumstances, representations, or conduct giving rise to the Agreement, no party may commence any court or arbitration proceedings relating to the dispute unless that party has complied with the procedures set out in this Section 11.6. The party initiating the dispute (“the first party”) must provide written notice of the dispute to the other party (“the other party”) and nominate in that notice the first party’s representative for the negotiations. The other party must within seven days of receipt of the notice give written notice to the first party naming its representative for the negotiations. Each representative nominated shall have authority to settle or resolve the dispute. If the parties are unable to resolve the dispute by discussion and negotiation within fourteen days of receipt of the written notice from the first party, then the parties must immediately refer the dispute to mediation. The mediation must be conducted in terms of the LEADR New Zealand Inc Standard Mediation Agreement. The mediation must be conducted by a mediator at a fee agreed by the parties. Failing agreement between the parties, the mediator shall be selected and his/her fee determined by the Chair for the time being of LEADR New Zealand Inc.
11.7. Governing Law. This Agreement shall be governed by and must be construed in accordance with the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the courts of New Zealand.
11.8. Notices: Any notice required or contemplated by this
agreement shall be deemed to have been duly given if it is in writing, properly addressed and deliverd personally or sent by mail or by email to the other party at the address, email address apecified below. In the case of delivery by email notice will be deemed to be served when recipt of the email is acknowledged by the party, either orally or by return email or otherwise in writing.
11.9. Waiver: A failure, delay, relaxation or indulgence by either party in exercising any right, power or privilege conferred on that party by this Agreement shall not operate as a waiver of the power or right. A single or partial exercise of any right, power or privilege hereunder does not preclude the further exercise of the same right or the exercise of any other right hereunder. A waiver of a breach does not operate as a waiver of any other breach.
11.10. Severability: If any part of this Agreement is held by a court of competent jurisdiction to be invalid, then:
(a) where the offending provision can be read down so as to give it a valid and enforceable operation of a partial nature it must be read down to the extent necessary to achieve that result; and
(b) in any case the offending provision must be severed from this Agreement the remainder of this Agreement shall continue in full force and effect unless such reading down or severance affects the basic nature of this Agreement.
11.11. Counterparts: This Agreement may be executed in counterparts (including by facsimile or emailed PDF transmission) each of which is deemed to be an original.
11.12. Headings: Headings to clauses are for reference only and are not an aid to interpretation.
11.13. Entire Agreement: This Agreement constitutes the entire agreement between the parties and will supersede all previous negotiations, commitments and representations. Any variation to this agreement shall be in writing signed by both parties.