Terms and Conditions

Appendix A – Standard Terms of Business

  1. Definitions
    1. In this Agreement:

Accept means acceptance by the Customer of the SecurePass Services and Implementation Services in accordance with clause 4 and Acceptance and Accepted have corresponding meanings.

Acceptance Tests means the tests, including the performance standards, procedures, time periods and test specifications, to be conducted by the Customer and/or HealthSafe, upon completion of the Implementation Services.

Agreement means the master services agreement together with its schedules and appendices.

App means the SecurePass mobile application.

Business Day means any day other than a Saturday, a Sunday or a public holiday in Auckland, New Zealand.

Commencement Date means the date of the Agreement.

Confidential Information means all information, in any form, relating to the business or prospective business, current or projected plans of a party, except where the information is in the public domain (otherwise than by a breach of this Agreement), or is already in the possession of the recipient party or subsequently comes into the possession of the recipient party from a third party, without any duty of confidentiality imposed or implied.

Customer means the party defined as the Customer in the Agreement.

Data means any data collected by, or inputted into the Website and/or App by, the Customer.

Details means the details of the party set out at the front of the Agreement.

Equipment means the equipment set out in Schedule 1 of the Agreement.

Equipment Fee means the fee payable for the Equipment, set out in Schedule 1 of the Agreement.

Fees means the Equipment Fee, Implementation Services Fee, Training Services Fee and SecurePass Services Fee (as applicable).

GST means goods and services tax payable pursuant to the Goods and Services Tax Act 1985.

Implementation Services means the implementation services set out in Schedule 2 of the Agreement.

Implementation Services Fee means the fee payable for the Implementation Services as set out in Schedule 2 of the Agreement.

Initial Term has the meaning given to it in the Agreement.

Insolvency Event means in relation to a party, where that party becomes unable to pay its debts as they fall due, or a statutory demand is served, a liquidator, receiver or manager (or any similar person) is appointed, or any insolvency procedure under the Companies Act 1993 is instituted or occurs.

Intellectual Property Rights means any current and future intellectual property rights whether registered or unregistered, including copyrights, design rights, trade marks, trade names, domain names, rights in logos and get-up, patents, inventions, confidential information and know-how, all rights in computer software, design, privacy, data and databases.

Renewal Term has the meaning given in clause 2.2.

SecurePass Services means the services to be provided by HealthSafe to the Customer in conjunction with the Software to assist with health and safety compliance and that will be accessed by the Customer and Users through the Website and/or App (as may be amended from time to time to in accordance with any legal or regulatory updates).

SecurePass Services Fee means the fee set out in Schedule 4 of the Agreement, payable in relation to the SecurePass Services. Software means the HealthSafe proprietary software, tools and applications that HealthSafe provides under the name “SecurePass”, which will be hosted in the cloud (as may be altered or upgraded by HealthSafe from time to time).

Term means the Initial Term together with any Renewal Terms.

Training Services means the training services set out in Schedule 3 of the Agreement.

Training Services Fee means the fee set out in Schedule 3 of the Agreement, payable in relation to the Training Services.

User means an individual user who is authorised by the Customer to use the SecurePass Services.

User Accounts Baseline means the baseline total number of Users that are deemed to be accessing the SecurePass Services, as set out in Schedule 4 of the Agreement, which may be amended in accordance with clause 3.3.

Website means www.hssecurepass.com.

 

  • Interpretation

 

Unless the context requires otherwise, in this Agreement:

        1. capitalised terms have the meaning given in clause 1.1 or as otherwise  assigned to them in this Agreement;
        2. a reference to currency is a reference to New Zealand dollars;
        3. a reference to a document includes that document as modified or replaced from time to time;
        4. words in the singular include the plural, and vice versa;
        5. use of the term “includes” or “including” shall be constructed without limitation;
        6. a reference to a clause is to a clause in this Agreement, and a reference to a schedule is a reference to a schedule to this Agreement; and
        7. to the extent that there is any inconsistency between these terms and conditions or any schedule or other attachment that forms part of this Agreement, these terms and conditions shall prevail.
    1. Term 
      1. This Agreement commences on the Commencement Date and subject to clause 2.2, will continue for the Initial Term, unless terminated earlier in accordance with this Agreement.
      2. Subject to clause 15, upon expiry of the Initial Term, this Agreement will automatically renew on a monthly basis (each, a Renewal Term), unless either party notifies the other party in writing at least 20 Business Days prior to the expiry of the Initial Term or Renewal Term, as applicable, that it wishes to terminate this Agreement at the end of the Initial Term or then-current Renewal Term.

 

  • SecurePass Services

 

    1. SecurePass Services

Upon Acceptance of the SecurePass Services, HealthSafe will provide the Customer with:

      1. the User Accounts Baseline, with each User account that forms part of the User Accounts Baseline having the ability to access and use the SecurePass Services; and
      2. first line phone support for the Services during business hours of 7:00am to 7:00pm in New Zealand on Business Days.
    1. User Accounts Baseline
      1. The Customer acknowledges that it will pay at a minimum the Services Fees for the User Accounts Baseline, even if the number of actual Users that the Customer has authorised to access the Services is less than the User Accounts Baseline.
      2. No more than once per year by written notice to HealthSafe, the Customer may ask the User Accounts Baseline to be reduced to reflect the number of actual Users, provided that in no circumstances may the User Accounts Baseline be reduced by more than ten per cent of the then-current User Accounts Baseline.
      3. If the Customer wishes to increase the number of actual Users above the User Accounts Baseline by more than an additional 25 Users, it will by written notice to HealthSafe increase the User Accounts Baseline to reflect such increased actual Users and such increase will be deemed to take effect on the first day of the month following the Customer’s notice.
      4. In the event of:
      1. a decrease in the User Accounts Baseline in accordance with clause 3.2(b), the SecurePass Services Fee will be reduced proportionately by multiplying the “Services Fee per User per month” set out in Schedule 4 of the Agreement by the new User Accounts Baseline and HealthSafe will promptly, upon receipt of an invoice from the Customer, refund the difference between any SecurePass Services Fee already paid under clause 8.2(b) and the decreased SecurePass Services Fee for that period calculated in accordance with this clause; or
      2. an increase in the User Accounts Baseline in accordance with clause 3.2(c), the Services Fees will be increased proportionately by multiplying the “SecurePass Services Fee per User per month” set out in Schedule 4 of the Agreement by the new User Accounts Baseline, and Customer will promptly pay the difference between any Services Fee already paid under clause 8.2(b) and the increased SecurePass Services Fee for that period calculated in accordance with this clause.
  1. Acceptance testing
    1. Ready for testing

HealthSafe will notify the Customer when the Implementation Services have been completed and the SecurePass Services are ready for Acceptance Tests.

    1. Test process

Once HealthSafe has notified the Customer in accordance with clause 4.1, the Customer will promptly test the SecurePass Services in accordance with this clause 4 to determine if the Implementation Services have been completed such that the SecurePass Services substantially comply and perform in accordance with the high-level functionality specified in the Implementation Services description in Schedule 2 of the Agreement.

    1. HealthSafe assistance

The Customer may require HealthSafe or its nominee to operate and run the Acceptance Tests but, if that is done, management of the process will remain with the Customer.  Where HealthSafe or its nominee is operating and running the Acceptance Tests, the Customer may observe such tests and review and sign-off the results.

    1. Completion date

The consequences of failure to successfully complete Acceptance Tests will only apply following the relevant stage completion date specified in the Schedule 2 for completion of the Acceptance Tests and do not apply to any failure of Acceptance Tests which may occur prior to the date required for their completion.  Before such date, Acceptance Tests may be repeated on more than one occasion.

    1. Customer’s obligations in testing

If the Customer is carrying out the Acceptance Tests:

      1. HealthSafe, may observe the Acceptance Tests and review the results;
      2. the Customer must conduct the Acceptance Tests within 5 Business Days of HealthSafe’s notification under clause 4.1;
      3. when an Acceptance Test is successfully completed by the Customer, the Customer must promptly notify HealthSafe in writing that it accepts that the Acceptance Tests are successfully completed; and
      4. if any Acceptance Test is not successfully completed within the relevant Business Day period, the Customer must promptly inform HealthSafe in writing that the Acceptance Test is unsuccessful, such notification to specify the particular respects in which SecurePass Services failed to successfully complete the Acceptance Test and the failures that are to be rectified by HealthSafe. HealthSafe must promptly do all things necessary to rectify the failures at its cost.
    1. Deemed Acceptance of SecurePass Services

Where the Customer has not completed the Acceptance Tests within the relevant Business Day period and has not notified HealthSafe in writing that any Acceptance Test was unsuccessful (in accordance with clause 4.5(d)), then the SecurePass Services will be deemed to be Accepted.

    1. Completion of Acceptance Tests and Acceptance of Implementation Services
      1. Once all of the Acceptance Tests for the SecurePass Services are successfully completed, HealthSafe will issue to Customer a final acceptance certificate in relation to the Implementation Services (Final Acceptance Certificate).  The Customer must, on receipt of this certificate promptly countersign such Final Acceptance Certificate and issue it to HealthSafe within three (3) Business Days.
      2. If the Customer does not countersign and issue the Final Acceptance Certificate to HealthSafe within such period, and has not given notification of the type referred to in clause 4.5(d) within such period, the Implementation Services will be deemed to be Accepted.
    2. Remedies

If passing of the Acceptance Tests is not obtained by the relevant stage completion date specified in the Schedule 2, then Customer may, at its option and without prejudice to any other rights or remedies available to it:

      1. agree to an extension of time for the Acceptance Tests to be run;
      2. allow HealthSafe a further period to rectify, at HealthSafe’s cost, the failures and subject the Services to further testing in accordance with the provisions of this clause; or
      3. accept the Implementation Services and SecurePass Services or any part of them subject to a reasonable reduction in the Implementation Services Fee and/or SecurePass Services Fee as agreed between the parties.
  1. Usage restrictions
    1. Use of Services

The Customer will ensure that its and the Users’ use of the SecurePass Services complies with all applicable laws, statutes, regulations or rules.

    1. Restrictions on use

The Customer will not and will not attempt to, and will procure that its Users do not and do not attempt to:

      1. copy, modify, duplicate, decompile or reverse engineer any part of the SecurePass Services or Software by any means; or
      2. assist third parties in obtaining, or attempting to obtain, access to the SecurePass Services.
    1. Responsibility for Users

Customer will be liable for all of the acts or omissions of:

      1. a User; or
      2. any person using the details of a User to access the SecurePass Service,

in relation to the use, misuse or access to the SecurePass Services, the Software, App and/or the Website.

  1. Equipment
    1. Acknowledgement
      1. The Customer acknowledges that it cannot access the SecurePass Services without the Equipment, which must be properly configured.
      2. HealthSafe will not be liable or responsible for any loss or damage whatsoever arising from the Equipment being incorrectly installed, or modified or customised, by the Customer, or from HealthSafe.
    2. Equipment warranty
      1. The Customer acknowledges that third party manufacturers provide a one-year warranty for the Equipment that is provided to the Customer pursuant to this Agreement (Equipment Warranty).  The Customer will receive the full benefit of all Equipment Warranties, details of which will be provided to the Customer by HealthSafe on entry into the Agreement and are available on the Website.
      2. If the Customer wishes to make an Equipment Warranty claim, the Customer must notify HealthSafe who will coordinate the claim with the third party manufacturer on the Customer’s behalf (unless the Customer wishes to do this directly with the manufacturer).
      3. Any Equipment Warranty provided by a manufacturer to the Customer will not apply to any damage or defect that results from Equipment being modified or customised improperly by the Customer or any third party, used in any way that is not intended, or repaired using components not provided by or recommended by HealthSafe or the manufacturer of the Equipment.
      4. With the exception of any Equipment Warranty, no other condition or warranty will apply to this Agreement unless specifically provided by HealthSafe to the Customer.
  1. Training Services
    1. Initial Training

HealthSafe will provide the Training Services to the Customer, as set out at Schedule 3 of the Agreement. The dates of the Training Services are to be agreed between the Customer and HealthSafe.

    1. Additional Training

Upon the Customer’s request, HealthSafe may, by agreement, provide further training at HealthSafe’s then-current standard rates for such training.

    1. Expenses

Where HealthSafe has to travel to provide training, the Customer will reimburse HealthSafe for all reasonable expenses incurred by HealthSafe in connection with such travel. HealthSafe will advise the Customer of the anticipated expenses prior to undertaking any travel.

  1. Fees
    1. Payment

The Customer will pay the following fees without set-off or deduction:

      1. the Equipment Fee upon signing of the Agreement;
      2. the Implementation Services Fee upon signing of the Agreement
      3. the Training Services Fee, which is payable in full on the earlier of:
      1. Acceptance of the SecurePass Services in accordance with clause 4.5 or 4.6; or
      2. the Customer commencing to allow the Users set out in Schedule 4 to access and use the SecurePass Services; and
      1. the SecurePass Services Fee, payable annually in advance and beginning on the earlier of:
      1. Acceptance of the SecurePass Services in accordance with clause 4.5 or 4.6; or
    1. Taxes
      1. Unless otherwise stated, the Fees and other amounts stated in the Agreement exclude GST and other taxes, duties and levies in connection with the supplies under the Agreement, which the Customer must pay in addition to the Fees.
      2. If a law requires the Customer to deduct an amount in respect of taxes, including any withholding tax, from a payment that is due under the Agreement, then:
      1. the Customer will deduct the amount for such taxes and pay an amount equal to the amount deducted to the relevant government agency in accordance with applicable law, and give the original receipts to HealthSafe; and
      2. the Customer will pay HealthSafe an additional amount so that, after the deduction is made, HealthSafe receives a net sum equal to the sum that it would have received if the deduction had not been made.
    1. Termination for non-payment
      1. In the event that the Customer does not pay any amount due within a further 20 Business Days of the due date for such amount, HealthSafe may terminate the Agreement immediately on written notice to the Customer.
      2. Any failure by HealthSafe to request any payment under this Agreement will not be deemed a waiver by HealthSafe of Customer’s obligations to pay that amount.
    2. Amendment

HealthSafe may increase the SecurePass Services Fee or the Implementation Services Fee (if applicable) no more than once per year and on 40 Business Days’ prior written notice to Customer, increase the SecurePass Services Fees or the Implementation Services Fee by no more than the percentage increase in the “Consumers Price Index”, published by Statistics New Zealand, for the previous 12 months.

    1. Default

HealthSafe may charge the Customer:

      1. interest on any outstanding amounts, calculated and compounded daily from the due date of that amount to the date upon which it is actually paid to HealthSafe, at a rate of 5% per annum above the then-current Bank of New Zealand commercial base lending rate; and
      2. for any reasonable costs incurred by HealthSafe in enforcing the payment of any amounts owed by the Customer to HealthSafe under the Agreement, including:
      1. any costs incurred by HealthSafe in engaging a third party to enforce payment; and
      2. an administration charge of $55 (excluding GST) for every formal notification provided to the Customer in respect of any Fees that are more than three months overdue.

 

  1. Intellectual Property Rights and Ownership
    1. The Customer acknowledges that HealthSafe (and/or its suppliers and licensors) retains:
      1. all Intellectual Property Rights in and to the Software and SecurePass Services and Implementation Services, including the right to use, and to grant third parties the right to use, the SecurePass Services for any and all purposes whatsoever; and
      2. all right, title and interest in the SecurePass Services, including all copies in any form or medium, whether now known or existing or subsequently developed.

Except to the extent expressly granted in the Agreement, the Customer acquires no rights in any of the foregoing.

  1. Data
    1. Access conditional

The Customer will retain any Intellectual Property Rights the Customer has in and to the Data. The Customer’s access to the Data through the SecurePass Services is conditional on full payment of the Fees by the Customer.

    1. Rights granted

The Customer grants, or will procure that its licensors grant to, HealthSafe:

      1. a royalty-free licence for the Term to use, copy, transmit, store, and back-up its Data for the purpose of or relating to providing the SecurePass Services to the Customer; and
      2. an irrevocable, perpetual, royalty-free licence to use an anonymised version of the Data for HealthSafe’s internal business purposes, including to improve the SecurePass Services.
    1. Security

HealthSafe will use reasonable commercial endeavours to maintain the security and integrity of the SecurePass Services and Data, but will not be liable for any loss or destruction of any Data for any reason and does not make any guarantees that there will be no loss of Data.

    1. Rights after termination/expiry

Subject to clause 10.2, at any time prior to or one month after termination of the Agreement, the Customer may request:

      1. a copy of any Data stored using the SecurePass Services, provided that the Data has not been deleted and the Customer pays any reasonable costs of providing it with that copy in the form chosen by HealthSafe. HealthSafe does not warrant that the format of any Data provided to Customer will be compatible with any software; or
      2. the deletion of the Data stored using the SecurePass Services, in which case HealthSafe must use reasonable efforts to promptly delete that Data.  The Customer acknowledges that if it requests the deletion of any Data prior to termination of the Agreement it may affect the quality of, or the Customer’s ability to receive, the SecurePass Services, and HealthSafe will have no liability or responsibility to the Customer in such circumstances.
    1. Data retained

The Customer acknowledges that HealthSafe will retain all Data stored in the Services for a total of seven years from the date that the Data is input into the Services. To the extent that this obligation extends beyond the Term, HealthSafe will provide Customer with a username and password that will allow access to such Data, but no other functions of the SecurePass Services.

    1. Privacy Policy

Any personal or health information provided by Customer will be used in accordance with HealthSafe’s privacy policy, which is set out on the Website.

  1. Confidentiality

Except as is otherwise required by law or any regulatory authority, each party undertakes to the other that during and after the Term it shall keep secret and shall not without the prior written consent of the other party disclose to any third party, except as permitted under the Agreement and except to its legal and professional advisors (provided that before disclosure, the disclosing party must make such persons aware of their obligations of confidentiality under this Agreement), any Confidential Information belonging to the other party.

  1. Warranties and acknowledgments
    1. Exclusion of warranties

To the extent permitted by law, HealthSafe makes no warranties in relation to the Implementation Services, SecurePass Services or the Software and disclaims and excludes all implied conditions or warranties, including that the Implementation Services, SecurePass Services or the Software will be:

      1. fit for a particular purpose;
      2. compatible with the Customer’s equipment; or
      3. free from errors, loss, destruction, interruption, corruption (including corruption of data), or that the Implementation Services, SecurePass Services or the Software will be timely or secure.
    1. Customer warranties
      1. The Customer warrants that it will not, and will procure that its Users do not:
      1. attempt to undermine the security or integrity of the SecurePass Services or the Software, or attempt to gain unauthorised access to any other User’s account;
      2. use or misuse the SecurePass Services or the Software in any way which may impair the functionality of the SecurePass Services or the Software or any other systems used to deliver the SecurePass Services, or impair another User’s use of the SecurePass Services or the Software;
      3. transmit or input into the Website, App or the Software any content or material that may be offensive or in violation of law, or that the User does not have the right to use; or
      4. directly or indirectly introduce or permit the introduction of any files, viruses, worms, trojans or other malicious code into the Website, App or the Software, or in any other manner corrupt, degrade or disrupt the operation of the SecurePass Services, Website, App or the Software or any other person’s software or computing device.
      1. The Customer warrants that where the Customer has registered to use the SecurePass Services on behalf of Users, the Customer has the authority to agree to these standard terms of business on behalf of those Users and agree that by registering to use the SecurePass Service, the Customer binds the Users on whose behalf the Customer act to the performance of any and all obligations that the Customer become subject to by virtue of these terms of business, without limiting the Customer’s own personal obligations under these Terms.
    1. Acknowledgements

The Customer acknowledges that:

      1. HealthSafe requires a reasonable period time to investigate any issues with the SecurePass Services, and will use reasonable endeavours to respond to the Customer within twenty-four (24) hours of any such issue being brought to its attention;
      2. upon identifying any issue and responding to the Customer pursuant to clause 12.3(a) HealthSafe requires a reasonable period of time to rectify the issue;
      3. HealthSafe may from time to time update, alter, upgrade or carry out maintenance on the Website, App or Software which may cause the Services to be unavailable for a period of time. HealthSafe:
      1. will use reasonable endeavours to carry out such work outside of the Customer’s standard business hours; and
      2. where this is not possible, will provide a minimum of three (3) Business Days’ notice to the Customer unless such maintenance or repair is necessary to be performed on an urgent or emergency basis;
      1. it must, and will procure that its Users must, comply with all laws applicable to its use of the SecurePass Services and not use the SecurePass Services for any unlawful purpose;
      2. HealthSafe is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the SecurePass Services may be subject to limitations, delays and other problems inherent in the use of such communications systems; and
      3. the Customer must procure that its Users keep their passwords confidential, and the Customer is solely responsible for all activities that occur through the accounts of its Users.
    1. Communication Conditions

As a condition to the Agreement, if the Customer uses any communication tools available through the Website and/or App (such as any forum, chat room or message centre), the Customer and its Users agree:

      1. only to use such communication tools for lawful and legitimate purposes; and
      2. that the Customer must not use any such communication tool for posting or disseminating any material unrelated to the use of the SecurePass Services, including (but not limited to):
      1. offers of goods or services for sale, unsolicited commercial e-mail, files that may damage any other person’s computing devices;
      2. software, content that may be offensive to any other users of the SecurePass Services, Website, and/or App; or
      3. material in violation of any law (including material that is protected by copyright or trade secrets which the Customer do not have the right to use).

 

    1. Consumer Guarantees Act

The parties both confirm and acknowledge that:

      1. they are each “in trade”;
      2. the Equipment, Implementation Services, Training Services and SecurePass Services are supplied to the Customer in trade and for a business purpose; and
      3. the statutory guarantees and implied terms, covenants and conditions contained in the Consumer Guarantees Act 1993 are excluded from the Agreement to the fullest extent permitted by law.
  1. Limitation of Liability
    1. Exclusion of liability

To the extent permitted by law, neither party will be liable to the other (under the law of contact, for breach of statutory duty, in tort (including negligence) equity, or otherwise) for any indirect, consequential or special damages arising out of or in connection with the Agreement, or for any loss of business, loss of profit or loss of data.

    1. Limitation of liability

Each party’s liability to the other party (under the law of contract, tort including negligence, equity, breach of statutory duty or otherwise) for any loss, cost, damage or expense arising out of or in connection with the Agreement is limited in aggregate to the amount of Fees paid by the Customer to HealthSafe in the twelve months prior to the date on which the cause of action arose.

    1. Exceptions

The limitation set out in clause 13.2 shall not apply to:

      1. any liability that arises out of or in connection to a breach by the Customer of clauses 12.2 or 9;
      2. any liability arising as a result of a breach by either party of clause 11; or
      3. the Customer’s liability to pay the Fees.
  1. Termination 

Either party may terminate the Agreement immediately by giving written notice to the other:

      1. if the other party commits a material breach of its obligations under the Agreement and, in the case of a breach which is capable of remedy, fails to remedy it within 30 Business Days of written notice specifying the breach and requiring it to be remedied; or
      1. if the other party becomes the subject of an Insolvency Event.
  1. Consequences of Termination
    1. Consequences

Upon termination of this Agreement:

      1. the Customer’s rights to access the Services will immediately cease;
      2. no Fees will be refunded to the Customer;
      3. HealthSafe will promptly deliver to the Customer any Equipment that has not yet been delivered; and
      4. each party shall immediately return all Confidential Information belonging to the other which it holds, or if instructed shall arrange for its immediate destruction.
    1. Rights Accrued Not Affected

Termination of this Agreement is without prejudice to the rights of either party accrued up to the date of termination.

    1. Survival

Clauses 9, 10, 11, 12, 13, 15, 16, and 17 and any other provision that by their nature are intended to survive termination or expiration of the Agreement shall so survive.

  1. Dispute resolution procedure
    1. Compliance with this clause mandatory

Except where a party seeks urgent interlocutory relief, a party must not start court or arbitration proceedings unless it has complied with this clause 15.

    1. Parties must attempt self-resolution

If a dispute arises in relation to the Agreement, the parties must first use all reasonable endeavours to attempt to resolve the dispute amongst themselves. If the parties agree a resolution of the dispute, they will sign a statement setting out the terms of the resolution and shall ensure that any actions pursuant to this resolution are fully and promptly carried out.

    1. Mediation

If the parties have not resolved the dispute after 20 Business Days (or such longer period as the parties agree in writing) from the date of a meeting held pursuant to clause 16.2, then before pursuing any other remedies either party must refer the dispute to mediation in which case:

      1. if the parties cannot agree on a suitably qualified mediator within 5 (five) Business Days of the dispute being referred to mediation, either party may request that the chairperson or any other office holder for the time being of the New Zealand chapter of LEADR to appoint a suitably qualified mediator; and
      2. the appointed mediator will set the guidelines for the mediation.

 

    1. If dispute remains unresolved

If the parties have not resolved the dispute within 10 Business Days of commencing mediation, each party may pursue all other remedies that are available to it.

    1.  Injunctive relief

Nothing in this clause 16 affects the right of a party to seek urgent injunctive relief where necessary.

  1. General
    1. General notices

Any notice given under or in relation to the Agreement must be in writing addressed to the recipient at the address notified by the recipient from time to time in writing to the other party.  The initial addresses are those set out in the Details. Delivery may be effected by hand, email, by post with postage prepaid. A notice will be deemed to have been received:

      1. if by hand, at the time of delivery;
      2. if by email, at the time of sending (provided that a valid email address has been used and no delivery failure notice has been received by the sender within four hours of sending the email); or
      3. if by postage, 3 Business Days after posting.
    1. Notice received outside Business Day

If a notice is received or deemed received after 5pm on a day that is not a Business Day, the notice will be deemed received on the next Business Day.

    1. Force Majeure

Neither party has any liability to the other for any lack of performance or failure to comply with the Agreement where the same arises from any cause reasonably beyond the control of either party.

    1. No Assignment by Customer

The Customer may not assign, transfer, licence or subcontract any of its rights or obligations under the Agreement. HealthSafe may assign, transfer, licence or subcontract any of its rights or obligations under the Agreement without the Customer’s consent.

    1. Variations

The Agreement, once signed, may not be amended or modified without the written agreement of both parties.

    1. Severability

If any provision contained in the Agreement is held to be invalid or unenforceable by any judicial or other competent authority, all other provisions of the Agreement will remain in full force and effect and will not in any way be impaired.

    1. No waiver

If HealthSafe does not exercise or enforce any rights available to HealthSafe under the Agreement, that does not constitute a waiver of those rights.

    1. Entire Agreement

The Agreement constitutes the entire agreement and understanding between the parties in relation to its subject matter and no earlier representation, warranty or agreement in relation to any matter dealt with in the Agreement has any force from the Commencement Date.

    1. Governing Law and Jurisdiction

The Agreement is governed by and is to be construed in accordance with New Zealand law and the courts of New Zealand have the exclusive jurisdiction to settle any dispute which may arise out of or in connection with the Agreement.

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