Website Terms of Use - HealthSafe NZ Ltd

HEALTHSAFE SOLUTION GENERAL TERMS

A. HealthSafe provides a software-as-a-service solution to assist organisations in managing their health and safety obligations for those who work at and interact with them, for example visitors, contractors and employees.

B. We have agreed to provide, and you have agreed to subscribe and pay for, the HealthSafe Solution (as defined below) on the terms and conditions set out in these General Terms and the specific terms set out in an Order Form.

1. Definitions and Interpretation

1.1. In this Agreement, unless the context requires otherwise:

Affiliate means any entity that controls, is controlled by, or is under common control of a party;

Agreement means these General Terms (including any Schedule) and any Order Form entered into between the parties;

Approved Applications means the software applications which we approve to be integrated with the HealthSafe Solution as specified in an Order Form;

App Terms means the terms of use for the HealthSafe App as accepted by each Visitor on downloading the HealthSafe App;

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

Client Data means any data created, collected or obtained: (a) via the HealthSafe Solution; and/or (b) from you, Your Users or Visitors, in each case from or in relation to a HealthSafe-Enabled Place, you, Your Users or Visitors, but excluding HealthSafe Anonymised Data;

Confidential Information means any information (in whatever form) about or belonging to a party that:

(a) is by its nature confidential;

(b) the other party knows or should know is confidential; or

and is disclosed to, or obtained by, the other party in connection with this Agreement;

Data Protection Legislation means all applicable laws and regulations relating to data protection and privacy in any jurisdiction in which our or your obligations are performed or data is being Processed in connection with this Agreement, including the Privacy Act 2020 (NZ);

Documentation means the documentation (if any) we make available to you, which sets out a description of, and user instructions for, the HealthSafe Solution;

Effective Date means the date of an Order Form;

Fees means the fees payable by you for the Services, your access and use of the HealthSafe Solution, and any HealthSafe-Provided Devices as set out in an Order Form and/or as otherwise agreed between the parties in writing;

Fixed Term means the period (if any) set out in an Order Form;

General Terms means these general terms that form part of the Agreement and are located at [include website link];

Good Industry Practice means exercising the skill, diligence and care expected of a skilled and experienced person in the same or similar circumstances;

HealthSafe, we, us and our mean HealthSafe NZ Limited;

HealthSafe Anonymised Data means any Client Data that we anonymise and aggregate for our use for statistical analysis and product development purposes in accordance with this Agreement;

HealthSafe API means our application programming interface and other related tools we make available, as specified in an Order Form, that allow you to integrate your Approved Applications with the HealthSafe Solution and receive Client Data;

HealthSafe App means the mobile application we make available to Visitors pursuant to the App Terms;

HealthSafe-Enabled Place means any building, property or workplace owned or managed by you where the HealthSafe Solution is used by you as set out in an Order Form;

HealthSafe Marks means our name, trade mark registrations and applications and other marks and logos (if any) that we authorise you to use in writing from time to time;

HealthSafe Portal means the portal we provide you (on a software-as-a-service basis and, if requested, via a mobile application) which can be used to receive Client Data and access dashboard, alerting and reporting functionality;

HealthSafe Products means the products that HealthSafe agrees to licence to you as set out in an Order Form (being either SecurePass and/or dynamicRMS);

HealthSafe-Provided Device means any device which we provide to you pursuant to this Agreement (as more specifically described in an Order Form);

HealthSafe Solution means the health and safety management solution we provide to you under this Agreement, comprising (a) the Services, (b) HealthSafe-Provided Devices (if any), (c) the HealthSafe Portal, (d) the HealthSafe Products, (e) the HealthSafe App, (f) the Documentation, (g) (where we agree under any Order Form) the HealthSafe API, and (h) the software, hardware, systems and technology owned by or licensed to us that enable us to provide the HealthSafe Solution, but not including any Third Party Applications;

HealthSafe Website means our website at www.healthsafe.co, or any other URL address for our website that we notify you of from time to time;

Installation Services means the services identified as such and described in an Order Form;

Intellectual Property Rights means any patent, trade mark, service mark, copyright, moral right, right in a design, right in databases or other sui generis right, right in know-how and any other intellectual property rights, whether registered, in the course of being registered or unregistered and any analogous rights worldwide;

Losses means all liabilities, fines, costs, expenses and other charges (including legal costs on a solicitor and client basis) and any related taxes or interest;

Order Form means any document (including online forms) agreed between the parties specifying the commercial and/or technical terms applying to our provision of the Services and the HealthSafe Solution and any other Order Form entered by the parties pursuant to clause 1.4;

Personal Information means any information relating to an identified or identifiable natural person. An identifiable natural person is one who can be identified, directly or indirectly, including by reference to an identifier such as a name, identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;

Privacy Notice means our privacy notice located at https://healthsafe.co/privacy-policy or any other URL address that we notify you of from time to time;

Process means to collect, store, use and/or disclose, or otherwise perform any operation on, any data (and Processed and Processing have corresponding meanings);

Services means all services we provide to you under this Agreement and includes the Installation Services, Support Services and any Supplementary Services;

Supplementary Services has the meaning in clause 3.4;

Support Services means the services identified as such and described in an Order Form;

Third Party Application means a software application owned or developed by a third party that is incorporated into or interoperates with the HealthSafe Solution;

Timetable means any timetable or milestone dates specified in any Order Form for the completion of any Services or Your Tasks;

Unavoidable Event means any event or circumstance that is beyond a party’s reasonable control;

Virus means any thing or device (including any software, code, file or program) which may prevent, impair or otherwise adversely affect (a) the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; or (b) access to or the operation of any program or data, including the reliability of any program or data, in each case including worms, trojan horses, viruses and other similar things or devices;

Visitor means a natural person who visits or works (including employees or contractors) in a HealthSafe-Enabled Place (whether or not that person has downloaded or uses the HealthSafe App);

White-labelled Solution means a version of the HealthSafe Solution customised to include Your Branding (and any other content specified by you), in accordance with clause 2.13;

Your Branding means your name, trade mark registrations and applications and other marks and logos (if any) that you make available to us to incorporate into a White-labelled Solution;

Your Tasks means the tasks (if any) set out in any Order Form that you are required to perform before the HealthSafe Solution can be made available to you; and

Your User means any Affiliate (only where permitted under clause 2.4), employee, contractor, officer or agent of yours who you authorise to access and use the HealthSafe Solution in accordance with this Agreement.

1.2. In this Agreement, unless the context requires otherwise:

(a) a reference to a statute includes all regulations under and amendments to that statute, and any statute passed in substitution for that statute or incorporating any of its terms;

(b) the singular includes the plural and vice versa;

(d) “person” includes a natural person and any entity whether or not incorporated; and

(e) the words “includes” or “including” do not imply any limitation.

1.3. These General Terms may be varied by us at any time, effective upon us publishing varied terms at the website link where these General Terms are located or as otherwise notified to you in writing (including by email). If we make a change to these General Terms which has a material adverse effect on the HealthSafe Solution or Services you receive from us, then you may, on no less than 30 days’ notice to us, terminate this Agreement. If you terminate this Agreement because of a change to the General Terms in accordance with this clause 1.3, then we will refund the portion of any prepaid amount for the HealthSafe Solution and Services that have not been provided at the date of termination.

1.4. The parties may agree one or more Order Forms in respect of the HealthSafe Solution and Services in accordance with clause 2. When the parties agree an Order Form, it forms an Agreement between the parties consisting of the terms of the Order Form and these General Terms. This Agreement (including all Order Forms) constitutes one single contract between the parties, and the effect of the parties entering into a further Order Form will be to amend this Agreement by the addition of that Order Form.

1.5. If there is a conflict between any terms of this Agreement, the following order of priority will apply to resolve the conflict (unless the Agreement explicitly says otherwise):

(a) first, the then-current General Terms;

(b) second, any Order Form (with the latest in time prevailing if there is a conflict between any Order Forms, and provided that if an Order Form expressly varies or overrides any specified provision of the General Terms, that variation will apply in accordance with its terms and will not be considered a conflict);

2. Access to HealthSafe Solution

Order Form

2.1. You must place an order with us by completing an Order Form.

2.2. An Order Form is not agreed unless signed (including by electronic signature) by both parties.

Licence

2.3. We grant you, with effect from the Effective Date, a non-exclusive, non-transferable right to access and use the HealthSafe Solution solely for the purpose of monitoring and managing the Visitors in your HealthSafe-Enabled Places, subject to the terms of this Agreement and as more specifically described in any Order Form.

2.4. We may extend the licence in clause 2.3 to one or more of your Affiliates, only to the extent this is expressly agreed in an Order Form.

Your Users

2.5. Without limiting any of your other obligations under this Agreement:

(a) you will be responsible for determining the level of access that each of Your Users has to the HealthSafe Solution, and you acknowledge that we will not be responsible for any issue arising due to:

(i) any act or omission of any of Your Users; or

(ii) you incorrectly granting a level of access to any of Your Users;

(b) you will ensure that each of Your Users complies with the terms of this Agreement;

(d) any act or omission of Your Users relating to the HealthSafe Solution will be treated as your act or omission. Without limiting our other rights and remedies, we can terminate any authority or access you have granted to any of Your Users if we consider they have put you in breach of this Agreement.

Visitors

2.6. You must ensure that any terms you have in place with Visitors (including terms in relation to Personal Information): (i) are consistent with; (ii) would not put you in breach of; and (iii) allow us to exercise our rights and perform our obligations under, this Agreement.

Upgrades

2.7. You acknowledge that we regularly upgrade and update the HealthSafe Solution, and that the HealthSafe Solution will continually evolve. We will provide you with reasonable notice of any such changes if we consider this is necessary. You are responsible for the costs of implementing any upgrades required in your technology environment to ensure the upgraded or updated HealthSafe Solution continues to operate.

Your access obligations

2.8. You will:

(a) keep secure logins and passwords for your (and Your Users’) access and use of the HealthSafe Solution and keep them confidential;

(b) promptly disable any login account if you or we discover that any details have been disclosed or compromised;

(c) allow us at any time on reasonable notice to audit your use of the HealthSafe Solution to establish whether it is being used in accordance with this Agreement;

(d) on demand, pay us the amount of any underpayment of Fees discovered by us through the audits referred to in clause 2.8(c); and

(e) be solely responsible for procuring and maintaining your network connections and telecommunications links from your systems to ours (and we will not be liable for any problems, conditions, delays, delivery failures or any other Losses arising from your network connections or telecommunications links or caused by the internet).

2.9. You will not access, store, distribute or transmit any Viruses, and we can, without liability and without limiting our other rights and remedies, disable your access to the HealthSafe Solution if you are in breach of this clause.

2.10. You will not:

(a) except as expressly permitted under this Agreement or by any law which cannot be excluded by agreement between us:

(i) copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any part of the HealthSafe Solution; or

(ii) reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the HealthSafe Solution;

(b) access the HealthSafe Solution to build a product or service which competes with the HealthSafe Solution;

(c) use the HealthSafe Solution to provide services to third parties (other than to Your Users and Visitors in accordance with this Agreement);

(d) make the HealthSafe Solution available to any third party (other than to Your Users and Visitors in accordance with this Agreement);

(e) undermine the integrity or security of the HealthSafe Solution;

(f) use the HealthSafe Solution in a manner likely to cause excessive load or otherwise interfere with the delivery of the HealthSafe Solution to third parties;

(g) attempt to do any of the things specified in paragraphs (a) to (f) above.

2.11. You will use all reasonable efforts to prevent any unauthorised access to, or use of, the HealthSafe Solution and, in the event of any such unauthorised access or use, promptly notify us.

Analytics

2.12. As part of the HealthSafe Solution we may provide you, via the HealthSafe Portal or otherwise, with analytics, insights or other information in relation to, or derived from, Client Data (Analytics). You acknowledge that the results of, assumptions used in, and information generated from any Analytics are for informational purposes only, and are subject to change depending on a variety of factors, which may not have been taken into account in providing the Analytics. To the maximum extent permitted by law, we will not be liable for any Losses arising in connection with your reliance on and use of Analytics. You agree that you will not rely solely on the Analytics and will carry out your own research, testing and diligence to verify the accuracy, correctness, reliability and completeness of the Analytics.

White-labelled Solution

2.13. We may at our absolute discretion agree to provide you with a White-labelled Solution. If we agree to provide you with a White-labelled Solution:

(a) you will promptly provide us with Your Branding and other content or material required for the White-labelled Solution in the format we specify;

(b) we will develop the White-labelled Solution and agree the content of the White-labelled Solution with you (subject to the terms of this Agreement and any applicable Order Form);

(c) you grant us the non-exclusive right for the term of this Agreement to use Your Branding and any other content or material you provide in relation to the White-labelled Solution, for the purpose of us developing and providing you with the White-labelled Solution and in accordance with any reasonable guidelines set by you from time to time;

(d) any other terms (including any further Fees) in relation to the White-labelled Solution will be set out in the applicable Order Form; and

(e) the provisions of this Agreement applying to the HealthSafe Solution will apply to the White-labelled Solution.

Integration with Third Party Applications

2.14. The HealthSafe Solution may include functionality or features which use or integrate with Third Party Applications. To use such functionality or features, you may need to obtain access to Third Party Applications from their providers, and to grant us access to your account(s) on those Third Party Applications. We cannot guarantee the continued availability of Third Party Applications (or the functionality or features which utilise them) and we can stop providing or linking with them at any time without liability to you.

2.15. You must:

(a) comply, and ensure Your Users and Visitors comply, with the terms of use for any Third Party Applications; and

(b) ensure we are authorised to access your account(s) on Third Party Applications where required under any Order Form or as otherwise reasonably required by us to provide the HealthSafe Solution.

2.16. Any use by you of Third Party Applications, and any exchange of data between you and the provider of any Third Party Application is a matter solely between you and the applicable provider and we do not have any liability for, or warrant or support, Third Party Applications or their providers.

3. Services

3.1. We will, in accordance with any applicable Order Form:

(a) provide the Services using Good Industry Practice and appropriately qualified personnel; and

(b) use all reasonable efforts to complete the Services in accordance with any Timetable.

3.2. You will, in accordance with any Order Form:

(a) perform Your Tasks (within any applicable timeframes set out in an Order Form);

(b) obtain and maintain any licences, authorisations or consents required so we can perform our obligations under this Agreement;

(c) ensure we have access to any HealthSafe-Enabled Places, your premises and your technology environment to the extent required for us to provide the HealthSafe Solution and the Services; and

(d) comply with any reasonable instructions we give you regarding the HealthSafe Solution or the Services.

3.3. If you do not comply with clause 3.2:

(a) we will not be liable for any failure or delay in providing the relevant Services or the HealthSafe Solution;

(b) if applicable, the parties will agree a reasonable extension of time so that we can provide the relevant Services; and

3.4. We may provide you with support, helpdesk, training, analytics or other services in relation to the HealthSafe Solution (Supplementary Services). The specific terms (including the Fees) in relation to Supplementary Services will be set out in the applicable Order Form.

3.5. During the term of this Agreement, the parties may:

(a) hold progress meetings for the purpose of discussing the performance of the Services. These meetings will be held at the times and locations agreed between us; and

(b) agree to amend any Order Form to provide for any agreed changes to the Services or the terms relating to your access and use of the HealthSafe Solution.

3.6. We will not be required to do anything that is not identified in an Order Form or otherwise reasonably determined by HealthSafe as out of scope.

4. Change in Access Terms

4.1. You can request us to:

(a) add, remove or change Your Users;

(b) configure or customise any part of the HealthSafe Solution; or

We can accept or refuse any such request at our discretion. If we accept any such request, we will take the necessary action in accordance with the provisions of this Agreement, including requiring you to enter into a new Order Form.

4.2. If you downgrade the HealthSafe Solution or Services, no refunds will be paid. If you upgrade or customise the HealthSafe Solution or Services, we will charge you for any amount due as a result of the upgrade/customisation (including amending the relevant Fees if required).

4.3. Downgrading or customising the HealthSafe Solution or Services may cause loss of data, content, features or capacity. If you choose to downgrade or customise the HealthSafe Solution or Services, we will not be liable for any resulting loss of data, content, features or capacity.

5. Device Terms

5.1. If an Order Form sets out that we will sell HealthSafe-Provided Devices to you then the terms set out in this clause 5 will apply in respect of those HealthSafe-Provided Devices.

5.2. We transfer to you such title as we have in the HealthSafe-Provided Devices.

5.3. You acknowledge and agree that title to, and any Intellectual Property Rights in, any software embedded in, or used in conjunction with, the HealthSafe-Provided Devices will not transfer to you, and your right to use any such software is subject to the terms of this Agreement.

5.4. The HealthSafe-Provided Devices are sold "as seen". We make no representations and give no warranties as to the quality, condition, state or description of the HealthSafe-Provided Devices, or their fitness or suitability for any purpose. To the extent we are permitted to do so, we will pass on the benefit of any warranties provided by the manufacturers of the HealthSafe-Provided Devices to you.

5.5. We will deliver the HealthSafe-Provided Devices to the location(s) and on the date(s) specified in any Order Form or as otherwise agreed by us. Time of delivery is approximate only and will not be of the essence.

5.6. Delivery will be completed when the HealthSafe-Provided Devices are unloaded at the relevant location specified in the applicable Order Form or otherwise agreed by us.

5.7. The risk of damage to or loss of the HealthSafe-Provided Devices will pass to you on delivery.

5.8. Title to the HealthSafe-Provided Devices will pass to you on payment in full of the relevant Fees.

5.9. Until title to the HealthSafe-Provided Devices has passed to you, you must:

(a) store the HealthSafe-Provided Devices separately from all other goods you hold so they remain readily identifiable as our property;

(b) not remove, deface or obscure any identifying mark on or relating to the HealthSafe-Provided Devices; and

(c) maintain the HealthSafe-Provided Devices in satisfactory condition and keep them insured against all risks for their full price from the date of delivery.

5.10. We are not liable for any damage or Losses caused by the installation of any HealthSafe-Provided Devices, other than to the extent such damage or Losses are caused by our negligence or wilful misconduct.

6. API Terms

6.1. If we have agreed in an Order Form to provide you with access to the HealthSafe API, the terms of this clause 6 will apply.

6.2. We grant you, with effect from the Commencement Date, a non-exclusive, non-transferable and revocable right to use the HealthSafe API to enable your Approved Applications to interact with the HealthSafe Solution and retrieve and use the Client Data, to the extent necessary to facilitate your use of the HealthSafe Solution as authorised under this Agreement. You grant us the right to access the Approved Applications for the same purpose.

6.3. We may, at our absolute discretion, provide integration and testing assistance in relation to your use of the HealthSafe API. The specific terms (including any Fees) in relation to such assistance will be set out in the applicable Order Form.

6.4. You acknowledge and agree that we can limit the number of API calls to the HealthSafe Solution that you are permitted to make during any given period. We will determine, at our sole discretion, call limits based on any factors we consider relevant, including how any Approved Application is used or the anticipated volume of use associated with it. We may impose reasonable charges for API calls that exceed the call limits we determine, and you must pay any such charges on demand.]

7. Data

7.1. Client Data (and any Intellectual Property Rights in respect of Client Data) are, and will remain at all times, your property, subject to any rights of individuals attaching to Client Data under Data Protection Law. Except as expressly provided in this Agreement, we are not granted any Intellectual Property Rights, or any other rights or licences, in respect of Client Data.

7.2. Notwithstanding clause 7.1, you grant us the right to Process Client Data to the extent necessary for us to:

(a) provide, run, manage and support the Services and the HealthSafe Solution in accordance with this Agreement;

(b) comply with our legal obligations; and

7.3. The HealthSafe Anonymised Data (and any Intellectual Property Rights in respect of the HealthSafe Anonymised Data) are, and will remain at all times, our property. Except as expressly provided in this Agreement, you are not granted any Intellectual Property Rights, or any other rights or licences, in respect of the HealthSafe Anonymised Data.

7.4. Each party:

(a) grants to the other party all rights and licences (including any assignment or licence of any relevant Intellectual Property Rights) necessary to give effect to clauses 7.1, 7.2 and 7.3 above; and

(b) will do anything necessary to effect any assignment or licence required under clause 7.4(a).

7.5. Each party will comply with Data Protection Legislation and take appropriate technical, physical and organisational measures and safeguards against unauthorised or unlawful Processing of the Client Data and Personal Information in that party’s possession or control, or their accidental loss, damage or disclosure. We will, as part of these measures, use reasonable efforts to back-up any Client Data in our possession or control. You acknowledge that if there is any loss or damage to Client Data in our possession or control, your sole and exclusive remedy will be for us to use all reasonable efforts to restore such lost or damaged data from the latest back-up maintained by us (subject to any rights you may have under Data Protection Legislation). We will not be responsible for any loss, damage or disclosure of Client Data caused by any third party.

7.6. You agree that we may Process Client Data in accordance with our Privacy Notice.

7.7. You acknowledge and agree that we can allow any Third Party Application and its provider to access Client Data as required for the interoperation or integration of that Third Party Application with the HealthSafe Solution. We are not responsible for any disclosure, modification or loss of Client Data caused by any Third Party Application or its provider.

8. Your General Obligations

8.1. You will:

(a) provide us with all necessary co-operation and access to any information we require to provide the HealthSafe Solution;

(b) comply with all applicable laws in relation to the use of the HealthSafe Solution and your activities under this Agreement; and

(c) promptly notify us of any malfunction of the HealthSafe Solution and provide us with the opportunity to correct the malfunction. You acknowledge and agree that we may suspend provision of the HealthSafe Solution until a correction can be made.

9. Fees and Payment

9.1. You will pay the Fees to us in accordance with this clause 9 and the terms of any applicable Order Form, except to the extent otherwise agreed by us in writing.

9.2. Unless otherwise specified in an Order Form, any fixed Fees will be payable in advance and any time & materials Fees will be payable in arrears.

9.3. On or about the first day of each month, we will issue a valid tax invoice to you for:

(a) any fixed Fees due for that month; and

(b) any time & materials Fees incurred in the previous month(s) and yet to be invoiced.

Unless otherwise specified by us, each invoice will be payable by the 20th of the month following the date of the invoice. Payment details will be specified on the invoice.

9.4. If you fail to pay any invoice when due, then without affecting any of our other rights and remedies, we may:

(a) disable your access to the HealthSafe Solution until the invoice(s) concerned remain unpaid;

(b) charge you interest that will accrue on any due amounts at an annual rate equal to 4% over the then current base overdraft rate of our bankers calculated from the due date until the date the amount is paid in full; and

(c) recover all reasonable costs we incur in recovering overdue amounts and interest from you, including any legal and/or debt enforcement costs (and you indemnify us for such costs).

9.5. All amounts referred to in this Agreement are exclusive of GST or other value added tax (if any).

9.6. You are responsible for paying all taxes associated with your purchases under this Agreement (other than taxes assessed against us based on our income). If you are required by law to deduct or withhold taxes or charges from the amounts due to us under this Agreement, you will ensure that the amount due to us is increased so that the payment actually made to us equals the amount due to us as if no such taxes or charges had been imposed.

9.7. Where any amount is indicated as estimated, you agree that the actual amount invoiced will be calculated on our standard rates for the actual time taken and materials used to perform the work required. Travel, accommodation and other disbursements (if applicable) will be invoiced at cost.

9.8. We may increase the Fees for the HealthSafe Products or Services no more than once each year of the Fixed Term by a percentage amount that is equal to the change in the New Zealand Consumer Price Index (CPI) for the immediately preceding 12-month period. We may change the Fees for the HealthSafe Products or Services at any time following the end of the Fixed Term by giving you at least 30 days’ prior written notice.

10. Intellectual Property Rights

10.1. You acknowledge and agree that we or our licensors own all Intellectual Property Rights in the:

(a) HealthSafe Solution and any White-labelled Solution (excluding Your Branding);

(b) HealthSafe App; and

together with all modifications, enhancements and other developments created as part of the Services or otherwise (whether or not recommended, suggested or commissioned by you).

Except as expressly provided in this Agreement, you are not granted any Intellectual Property Rights, or any other rights or licences, in respect of the items set out in this clause 10.1.

10.2. We acknowledge and agree that, subject to clause 10.1, you own the Intellectual Property Rights in Your Branding. You grant to us a non-exclusive right to use Your Branding to perform our obligations and exercise our rights under this Agreement.

10.3. We confirm that we have all the rights in relation to the HealthSafe Solution that are necessary to grant all the rights we purport to grant under this Agreement.

11. Confidentiality

11.1. Each party (the Recipient) must:

(a) keep strictly confidential any Confidential Information of the other party (the Discloser); and

(b) only use the Discloser’s Confidential Information to exercise its rights and perform its obligations under this Agreement.

11.2. The obligations of confidentiality in clause 11.1 will not apply to information that:

(a) the Recipient can clearly show was independently developed by the Recipient, or available to the Recipient from a third party with the right to disclose it;

(b) is in the public domain through no fault of the Recipient or any other person to whom the Recipient discloses the information;

(c) the Recipient is obliged by law, a regulator or the rules of any stock exchange to disclose, provided that it has first advised the Discloser of this obligation, has allowed the Discloser reasonable time to avoid the disclosure having to be made, and has given the Discloser any assistance (at the Discloser’s cost) the Discloser reasonably requests in doing this;

(d) the Recipient discloses to its accounting, legal or technical services professionals for the purposes of them providing professional services to the Recipient, provided they have a need to know the information and are subject to confidentiality obligations at least equivalent to those in this clause 11.

11.3. The Recipient will on demand and, in any event, on termination of this Agreement, delete or deliver to the Discloser (at the Discloser’s election) all Confidential Information supplied by or obtained from the Discloser.

11.4. Notwithstanding any other provisions of this clause 11, we can mention or refer to your name, and identify you as a customer of HealthSafe, on our HealthSafe Website and in any publicity or marketing collateral (including any case studies) and you grant us a continuing right to use Your Branding for such purposes, including after termination of this Agreement.

11.5. This clause 11 will survive termination or expiry of this Agreement.

12. Warranties and Liability

12.1. Each party warrants that it has the power and authority to enter into, and perform its obligations under, this Agreement.

12.2. We warrant that the HealthSafe Solution (excluding the HealthSafe-Provided Devices):

(a) will function substantially as described in the Documentation; and

(b) does not infringe the copyright of any third party.

12.3. If we are in breach of either warranty in clause 12.2, we will, at our option, either:

(a) modify the HealthSafe Solution to conform to the Documentation; or

(b) provide a workaround solution.

If neither of the options in clause 12.3 (a) or (b) is commercially feasible, we may terminate this Agreement by giving written notice to you, in which case we will refund to you all Fees pre-paid to us for unused Services or unused access to the HealthSafe Solution. Such correction or substitution constitutes your sole and exclusive remedy for any breach of the warranty in clause 12.2(a).

12.4. We will not be liable for a breach of either warranty in clause 12.2 to the extent any non-conformance or infringement is caused by:

(a) data that you or any third party has inputted to the HealthSafe Solution;

(b) any instructions you have provided to us;

(c) your, or Your Users or Visitors’, use of the HealthSafe Solution contrary to the Documentation or any of our instructions;

(d) loss of or damage to the HealthSafe-Provided Devices caused by you or any third party; or

(e) modification or alteration of the HealthSafe Solution, or integration with Third Party Applications, by any party other than us or our authorised contractors or agents.

12.5. Other than as expressly set out in this Agreement, we do not warrant:

(a) that your use of the HealthSafe Solution will be uninterrupted or error-free;

(b) that the HealthSafe Solution or the information you obtain through the HealthSafe Solution will meet your requirements or will always be available, either in its current form or at all;

(c) that we will support, maintain or continue to offer the HealthSafe Solution for a period longer than the term of any Order Form; or

(d) the accuracy, correctness, reliability or completeness of any information obtained through your use of the HealthSafe Solution or the Services.

12.6. You acknowledge and agree that:

(a) the HealthSafe Solution and any Services provided under this Agreement are supplied and acquired in trade, and accordingly the parties agree to contract out of the provisions of the Consumer Guarantees Act 1993 and sections 9, 12A, 13, and 14(1) of the Fair Trading Act 1986 in respect of the HealthSafe Solution and the Services;

(b) we may rely on the provision of services by third parties (including data centre, electricity, telecommunications network and outsourcing providers) to provide the HealthSafe Solution (Third Party Providers) and the HealthSafe Solution may be subject to limitations, delays and other problems inherent in the use of services provided by Third Party Providers;

(c) we will not be responsible for any delays, delivery failures, or any other Losses arising out of or in connection with any services provided by Third Party Providers; and

(d) the HealthSafe Solution and Services are not a guarantee or assurance (and are not intended to be and cannot be considered or relied upon as a guarantee or assurance) of the personal safety of any Visitor to, or that there will be no damage to or loss of any tangible property in, any HealthSafe-Enabled Place. Ensuring the safety of any Visitor to the HealthSafe-Enabled Place is your responsibility. We do not assume any of your legal health and safety responsibilities as a consequence of this Agreement or the provision of the HealthSafe Solution or the Services.

12.7. Except as expressly set out in this Agreement, the HealthSafe Solution and Services are provided on an “as is” basis and all representations, conditions or warranties (whether express or implied, statutory or otherwise, and including warranties of merchantability and fitness for a particular purpose) in respect of the HealthSafe Solution and Services are expressly excluded to the extent permitted by law.

12.8. You agree to pay us, on demand, the full amount of any Losses we incur resulting from your, any of Your Users’ or any Visitors’, use of the HealthSafe Solution or Services (except to the extent such Losses are a direct result of our negligence or our breach of this Agreement).

12.9. Except for: (i) your liability under clause 12.8, (ii) a breach by either party of its confidentiality obligations or (iii) an infringement by either party of the other’s Intellectual Property Rights:

(a) neither party will be liable to the other party for any loss of profits, loss of revenue, or any indirect, consequential or special Losses incurred by the other party; and

(b) our total liability under this Agreement will not exceed in aggregate an amount equal to the Fees actually paid by you in the six months immediately prior to the first time you make a claim under this Agreement in respect of any Losses.

12.10. You acknowledge and agree that Your Users are not granted any rights under (other than any rights granted to Affiliates under clause 2.4), or permitted to make a claim in relation to, this Agreement.

12.11. Each party will take reasonable steps to mitigate any Losses it incurs in connection with this Agreement.

13. Termination

13.1. Unless an Order Form (and/or this Agreement) is terminated earlier in accordance with its terms:

(a) each Order Form starts on the date of last signature and continues for the Fixed Term; and

(b) following the end of any Fixed Term (or if there is no Fixed Term), each Order Form will automatically continue for successive terms of 12 months (each subsequent period a Renewal Term), unless terminated by either party giving the other party at least 30 days’ prior written notice that the Order Form will terminate on the expiry of the then-current term.

This Agreement will continue in force for the term of any Order Forms.

13.2. Either party can terminate this Agreement immediately at any time on notice to the other party if the other party:

(a) materially breaches this Agreement and (if the breach is capable of remedy) fails to remedy the breach within 30 days of receiving notice from the other party specifying the breach and requiring it to be remedied; or

(b) goes into liquidation or has a receiver or statutory manager appointed in respect of any of its assets, becomes insolvent or makes any arrangement with creditors.

13.3. On termination or expiry of this Agreement for any reason:

(a) you must promptly pay the Fees due for the HealthSafe Solution and Services on a pro-rata basis for each day up to and including the date of termination of this Agreement;

(b) all licences we grant you under this Agreement will immediately terminate and you must immediately cease using the HealthSafe Solution and HealthSafe Marks;

(c) each party will promptly return, and make no further use of, all property and materials (and all copies of them) belonging to the other party;

(d) unless we agree in writing, and you agree to pay the additional Fees specified by us, for us to provide you with a copy of the Client Data in an agreed format, we will delete or purge any Client Data in our possession or control no later than 30 days following termination of this Agreement. It is your responsibility to export a copy of the Client Data in a meaningful way prior to termination using the available features in the HealthSafe Solution; and

(e) the accrued rights of the parties as at termination will not be affected or prejudiced.

13.4. If we terminate this Agreement under clause 13.2, you will not be entitled to a refund of any Fees pre-paid to us for unused Services or access to the HealthSafe Solution.

13.5. Clauses 2.3, 2.6, 2.10, 7, 10, 11, 12.8, 12.9, 12.10, 13.3, 13.4, 13.5, 15 and all other terms which by their nature are required to survive expiry or termination, will survive expiry or termination of this Agreement.

14. Sub-contracting

14.1. We can sub-contract any of our obligations under this Agreement without your consent.

14.2. If we use a sub-contractor, we are not relieved of any of our liabilities or obligations under this Agreement.

15. Disputes

15.1. If a dispute occurs relating to this Agreement (Dispute), the party claiming the Dispute has arisen must give written notice to the other party specifying the nature of the Dispute.

15.2. On receipt of that notice, the parties will use all reasonable efforts to resolve the Dispute by discussion, consultation, negotiation or other informal means.

15.3. If the Dispute is not resolved within 15 Business Days of the notice being given pursuant to clause 15.1 (or within any further period agreed in writing by the parties), either party may commence court proceedings relating to the Dispute.

15.4. Nothing in this clause 15 restricts or prevents a party from applying for urgent interlocutory relief at any time.

16. Unavoidable Events

16.1. Neither party will have any liability under this Agreement for any delay or failure to perform its obligations if the delay or failure is caused by an Unavoidable Event and the delay or failure could not have been prevented by following Good Industry Practice.

16.2. If an Unavoidable Event happens, the affected party must promptly give written notice of the fact and circumstances of the Unavoidable Event to the other party and use its best efforts to mitigate any effects.

16.3. If an Unavoidable Event continues for a period of 30 days or more, then the unaffected party will be entitled to terminate this Agreement by giving the other party notice in writing.

17. General

17.1. This Agreement is the entire agreement between you and us about its subject matter and replaces any previous understandings, agreements or representations about that subject matter. This Agreement will apply to the exclusion of any other terms and conditions, including those contained or referred to in any communication you send to us.

17.2. This Agreement will not be deemed to create a partnership, joint venture or agency relationship of any kind between the parties.

17.3. Except as set out in clauses 1.3 and 1.4, this Agreement may only be varied by written agreement between the parties.

17.4. If any part of this Agreement is judged invalid or unenforceable in a jurisdiction it is severed for that jurisdiction and the remainder of this Agreement will continue to operate.

17.5. A provision or a right under this Agreement may not be waived except in writing signed by the party granting the waiver.

17.6. A party can exercise a right, power or remedy under this Agreement at its discretion, and separately to or concurrently with another right, power or remedy. A single or partial exercise of a right, power or remedy by a party under this Agreement does not prevent a further exercise of that (or any other) right, power or remedy.

17.7. Neither party will assign, transfer or otherwise deal with this Agreement or any of its rights or obligations under this Agreement, whether in whole or in part, without the other party’s prior written consent, other than in connection with a change in control, merger, acquisition, consolidation, asset sale or other corporate reorganisation.

17.8. Notices and other communications under this Agreement are to be given in writing by email, personal delivery or by post and must be:

(a) sent to the correct email or address specified in the Order Form or as otherwise specified in writing by each party for that purpose from time to time; and

(b) marked for the attention of the designated person or office holder (if any).

17.9. A notice or communication in relation to this Agreement will be deemed to be received:

(a) in the case of a letter, on the tenth Business Day after posting; or

(b) in the case of email, on the Business Day on which the email is successfully delivered; and

17.10. This Agreement (and any non-contractual obligations arising out of or in connection with it) will be governed by and interpreted in accordance with the laws of New Zealand. The New Zealand courts will have exclusive jurisdiction.

17.11. This Agreement can be executed in any number of counterparts (including a scanned PDF counterpart), each of which will be an original, but all of which together will constitute the same instrument. No counterpart will be effective until each party has signed at least one counterpart.

These Terms were last updated on 22 April 2024