PARTIES
Gentle Dental Centre Wellington (“Provider”).
You (the “Client”).
Each being a “party”, and together being “the parties”.
Key Details.
By engaging with the Provider, the Client agrees to these terms (the “Terms”), unless a separate service agreement is signed by both parties.
The Provider and the Client will agree to certain key details (“Key Details”) which will be set out in an invoice from the Provider to the Client, being “Start Date”, “Term”, “Services” and “Charges”.
Definitions.
Unless the context requires otherwise, in these Terms, the following terms shall have the meanings specified:
(a) Business Day means a day (other than a Saturday, Sunday or public holiday) on which registered banks are open for business in New Zealand.
(b) Charges means the Provider’s charges for Services as may be varied from time to time.
(c) Confidential Information means all information regardless of the form it takes and the manner in which it is communicated to the recipient of such information, and whether the recipient has been told that it is confidential Information relating to:
(i) the business, affairs, or financial or commercial arrangements of the disclosing party or of any other person dealing with the disclosing party; or
(ii) contracts or arrangements between the disclosing party and any other person.
(d) Default Interest Rate means an interest rate of 10% per annum.
(e) Expenses means travel, accommodation, car rental, payment processing fees and any other reasonable expenses incurred by the Provider for the purpose of delivering the Services.
(f) Tax means any tax chargeable on the Services.
(g) Information means all information, whether or not patented, including trade secrets, know-how, processes, concepts, ideas, data, business plans, reports, customer or client lists and any other written, printed or electronically stored materials.
(h) Intellectual Information means all discoveries, inventions, improvements, designs, systems, procedures, computer software and programs (whether denominated software, firmware or otherwise), formulae, trademarks, trade names, copyright materials, patents, any applications or registrations for any of the foregoing, and any other intellectual property whatsoever.
(2) Interpretation
Unless the context requires otherwise, in these Terms:
(a) References to the parties include their respective executors, administrators, successors and permitted assigns.
(b) References to persons include individuals, partnerships, firms, associations, corporations and unincorporated bodies of persons, government or semi-government or local body or municipal bodies, and agencies or political subdivisions of them in any case whether having separate legal personality or not.
(c) Any obligation not to do anything includes an obligation not to suffer, permit or cause that thing to be done.
(d) Headings have been inserted for convenience only and shall not affect the construction of these Terms.
(3) Agreement to Provide Services
(a) Services. The Provider agrees to provide the Services to the Client, and the Client agrees to accept those Services, on the terms set out in these Terms.
(b) Provider’s Obligations. The Provider shall:
(i) promptly commence and carry out the services in a timely, competent, and efficient manner;
(ii) supply all equipment, materials and other resources which are necessary to ensure the services are performed efficiently;
(iii) work cooperatively with the Client and the Client’s employees, agents, and other contractors;
(iv) comply with all reasonable directions from the Client relating to the performance of the services;
(v) comply, at all times, with all applicable laws and regulations relating to the provision of the services.
(c) Non-Exclusivity. Nothing in these Terms shall prevent or restrict the Provider from entering into agreements with other persons for the provision of services.
(4) Revisions
The Provider may make revisions to any works produced in the course of delivering the Services at the Client’s request (“Revision” or “Revisions”) at the Provider’s sole discretion. The failure to provide a Revision or Revisions shall not be deemed a failure by the Provider to meet its obligations under these Terms.
(5) Joint and Several Liability
If a party comprises more than one person then each person comprising that party shall be bound jointly and severally.
(6) Term and Termination
(a) Term. These Terms shall commence on the Start Date and continue in force for the length of the Term, unless terminated earlier in accordance with these Terms.
(b) Renewal. If either party wishes to renew these Terms, it must give written notice to the other party at least 30 working days prior to the expiry of the current term (“Renewal Notice”). The Renewal Notice must contain the length of the renewal term, and may contain any other variation to the terms of these Terms.
(c) Term. These Terms shall commence on the Start Date and continue in force for the length of the Term, unless terminated earlier in accordance with these Terms.
(d) Default. These Terms may be terminated immediately by the Provider giving notice in writing to the Client:
(i) upon the Client committing any material breach of these Terms which is incapable of being rectified; or
(ii) upon the Client committing any material breach of these Terms which is not rectified within 2 working days of written notice of the breach having been given to the other party by the First Party; or
(iii) upon the Client becoming insolvent; or
(iv) upon a receiver or manager of any asset of the Client being appointed, or an order made or resolution passed for the liquidation of the Client.
(e) By Notice. The Provider may terminate these Terms by giving 30 working days notice of termination to the other party, and the Term shall terminate upon the expiry of such notice.
(f) Rights to continue. Termination of these Terms shall be without prejudice to any rights of either party accrued up to the date of termination including any rights, powers or remedies available to that party in contract, at law or in equity.
(7) Price and Payment
(a) Invoice. For all one-time payments, the Client will be invoiced for the value of this quote with the agreed-upon payment breakdown.
(b) Payment. The Client will pay any Charges invoiced, together with all applicable Tax chargeable on the Services, in the manner set out in each invoice, within 7 days of receiving the invoice from the Provider unless otherwise agreed upon. If payment is not made by the due date, the Client will be liable to pay a collection fee of 10% of the amount outstanding. If in an extreme case the Client’s due amount remains outstanding, the Provider will pass the Client’s account to a debt collection agency. The Client will be liable for any fees incurred as part of the debt collection process. The Provider also reserves the right to halt any Services in the event of an unpaid account.
(c) Ongoing Monthly Management Fees. For all ongoing monthly management fees, the Client will supply a credit card to the Provider, this will be charged directly each month.
(d) Ongoing Third-Party Subscription. For all ongoing costs of third-party subscription, the Client will supply a credit card number and details for the Provider to use on the selected accounts.
(e) No Set-Off. The Client must pay all Charges without deduction, deferment or any set-off it may have against the Provider.
(f) Review of Charges. The Provider, in its sole discretion, may amend the Charges if the Client requests additional work beyond the scope of the agreed Services.
(g) Late Payment. Where any amount payable under an invoice rendered to the Client under this clause remains unpaid following the due date for payment, the Provider may (without prejudice to any other right):
(i) charge interest on the unpaid amounts at the Default Interest Rate from the due date for payment on the unpaid amounts to the date of payment;
(ii) cease to provide Services to the Client;
(iii) refuse to publish, and/or remove any websites or other outputs created by the Provider in the course of providing the Services.
(h) Disbursements. Unless otherwise stated, the Provider may disburse Expenses to the Client in addition to the Charges.
(8) Confidential Information
(a) Confidentiality. The parties acknowledge that, in the course of the Provider providing the Services to the Client under these Terms, each party (for the purposes of this clause, the “Recipient”) will have access to Confidential Information about the other party, and each party agrees that it shall:
(i) not at any time, either during or following termination of these Terms, except in the proper performance of its obligations under these Terms, either directly or indirectly use, copy, publish or disclose to any person any Confidential Information;
(ii) use its best endeavours to prevent the unauthorised use, copying, publication or disclosure of any Confidential Information which it may acquire during the course of performing its obligations under these Terms; and
(iii) keep the terms of these Terms confidential.
(b) Exceptions. The parties acknowledge that the provisions of clause 8(a) shall not apply to any information which:
(i) had been rightfully in the possession of the Recipient prior to its disclosure to the Recipient;
(ii) had been in the public domain prior to its disclosure to the Recipient;
(iii) has become part of the public domain by publication or by any other means except an unauthorised act or omission on the part of the Recipient;
(iv) had been supplied to the Recipient without restriction by a third party who is under no obligation to maintain such information in confidence; or
(v) is required to be disclosed by virtue of any law, by-law or regulation or by any applicable judgment of the courts of New Zealand.
(c) Continuing Obligation. The obligations of confidentiality as contained in this clause shall survive termination of these Terms.
(9) Intellectual Property
(a) Intellectual Property. All Intellectual Property conceived, discovered, developed, made, perfected, improved, modified or altered by the Provider in the course of performing the Services, whether:
(i) alone or in conjunction with the other party or any other parties;
(ii) capable of being patented or registered or not, shall be the absolute property of the Provider, may be exploited or used by the Provider in any manner in the Provider’s absolute discretion. The Client will be granted an exclusive, non-assignable licence to use any such Intellectual Property in perpetuity.
(10) Exclusion of Liability and Indemnity
(a) The Provider shall not be liable to the Client or any third parties for any loss, damage, expenses or any other liability arising directly or indirectly from the performance of the Services by the Provider pursuant to these Terms.
(b) To the fullest extent permitted by law, the Provider excludes all warranties or conditions implied by statute, at law, by trade, custom or otherwise.
(c) The Client acknowledges that the Client assumes sole and entire responsibility for, and indemnifies and saves harmless the Provider from, any and all claims, liabilities, losses, expenses, responsibilities and damages by reason of any claim, proceedings, action, liability or injury arising out of or as a result of:
(i) the Client’s conduct in relation to these Terms;
(ii) the Client’s use of any of the material, advice or other results of the Services provided by the Provider;
(iii) the Client’s relations with the Client’s customers and other third parties; or
(iv) any breach of these Terms by the Client.
(11) Miscellaneous
(a) Contractor. The Provider enters into these Terms as an independent contractor and the parties expressly agree that no partnership, employment, joint venture or other relationship shall be implied into the terms of these Terms.
(b) Notices. Any and all notices related to these Terms must be delivered in person, by courier, or by email. Any notice given after 5.00 pm, or on a day which is not a Business Day, shall be deemed to be given at 9.00 am on the next Business Day.
(c) No Assignment. Rights, duties or obligations under these Terms shall not be assignable by any party without the prior written consent of the other party. Any attempt to assign the rights, duties or obligations under these Terms without such consent shall be of no effect.
(d) Non-Waiver. No failure to exercise and no delay in exercising any right under these Terms shall operate as a waiver of that right nor shall any single or partial exercise of any right preclude any further or other exercise of that right or any other right.
(e) Partial Invalidity. If any provision of these Terms is declared or adjudged to be invalid, void or unenforceable, such provision shall be severable, shall be deemed to be deleted from these Terms and shall not affect the validity, existence, legality or enforceability of the remaining provisions.
(f) Further Assurance. The Client agrees that at any time, and from time to time, upon the written request of the Provider, the Client will promptly and duly execute and deliver to the Provider any and all such further documents as the Provider may deem desirable for obtaining the full benefit of these Terms.
(g) Rights Cumulative. Each and all of the several rights and remedies of the parties contained or implied in these Terms shall be construed as cumulative. No right or remedy will be construed as exclusive of the others or of any right or remedy allowed by law or equity.
(h) Entire Agreement. The provisions of these Terms, along with any email correspondence between the parties defining the Key Details, constitute the entire agreement between the parties with respect to its subject matter and supersede all previous understandings, arrangements, agreements and communications, whether verbal or written, between the parties or their advisers with respect to that subject matter.
(i) Applicable Law and Jurisdiction. These Terms shall be governed by and construed in accordance with New Zealand law. Each party agrees to submit to the non-exclusive jurisdiction of the tribunals and courts of New Zealand with respect to any claim or matter arising out of or in connection with these Terms.
