Terms and conditions

These terms and conditions are between Mango Treehouse Pty Ltd (ABN 79 644 539 444) (we, us or our) and you (you or your), together the Parties and each a Party. These terms and conditions and the Quote form the entire agreement under which we will provide the Goods and Services to you (Terms).

1. ACCEPTANCE
   • We provide the Services which are accessible at https://portal.qdactivealigners.co.nz and may be available through other addresses and channels (Site).
   • You accept these Terms by clicking a box indicating your acceptance.
   • These Terms are binding on you, on and from the date on which you accept these Terms (Effective Date), until the date on which your Account and these Terms are terminated in accordance with these Terms (Term).
   • You may request a design of the Goods (Design) through our Site (Design Request). Each Design Request must include, at a minimum, a complete prescription form, digital photos of the Patient’s face and mouth and a digital scan.
   • Once you have reviewed the Design, you may request the Goods through the Site. Once you request the Goods, you will be sent a Quote through the Site. You must approve the Quote through the Site. Any approval of the Quote for the Goods is an offer by you to purchase the Goods in accordance with these Terms.
   • To the extent of any ambiguity or discrepancy between the Quote (including any special conditions and payment terms) and these Terms, the terms of the Quote will prevail.
   • If you are agreeing to these Terms on behalf of a company, your employer, an organisation, government or other legal entity (Entity), then “you” means the Entity and you are binding that Entity to these Terms. If you are accepting these Terms on behalf of an Entity, you as an individual represent and warrant that you are authorised by the Entity to do so.
2. DISCLAIMER
   • You acknowledge and agree that the Design developed through the Software is an approximation only. We may provide factual information for your use in creating or evaluating the effectiveness of a proposed Treatment. The Design and the Treatment must be reviewed by you, to determine whether the Design and Treatment is appropriate for the specific patient. You are also responsible for the approval of the Design, the use and application of the Design and Treatment and the resulting outcome of the Treatment. The Services and information provided are not a substitute for dental or medical advice. Any decisions about a Design or a Treatment for a Patient are to be made by you. To the extent permitted by law, we do not assume any responsibility or liability, and you waive and release us from all responsibility or liability, arising from or connected with your reliance on the Design or Treatment provided in the delivery of the Services.
3. PROVISION OF SERVICES
   • We will provide the Services in accordance with these Terms, whether ourselves or through our Personnel.
   • You agree that we may amend the Services (including any features) at any time, by providing written notice to you. If you do not agree to any amendment made to the Services, you may terminate these Terms in accordance with clause 1

Accounts

• We will create an Account for you to enable you and your Personnel to use the Services.
• You must ensure that any information you provide to us, or we request from you, for your Account, is complete and accurate and you are authorised to provide this information to us.
• You are the Account owner and regardless of any change in any contact details, you will remain responsible for your Account, as set out in these Terms. If you wish to change the Account owner, you must provide us with a written request to transfer the ownership of the Account to the incoming party, which must also include the incoming party’s written consent to take over full responsibility for the Account, in a form acceptable to us.
• It is your responsibility to keep your Account details confidential. You are responsible for all activity on your Account and all activity by any of your Personnel, and for ensuring that any activities on any Account complies with these Terms.
• We are not responsible for the management or administration of your Account.

Licence    

• Subject to your compliance with these Terms, we grant you a non-exclusive, non-transferable (except with our written permission), non-sublicensable, personal and revocable licence to access and use the Services for the Term, for your use and enjoyment of the Services, as contemplated by these Terms (Licence).
• You must not access or use the Services except as permitted by the Licence and you must not (and must not permit any other person to) use the Services in any way which is in breach of any applicable Laws or which infringes any person’s rights, including Intellectual Property Rights, including to:

• use the Services to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted;
• use the Services in any way that damages, interferes with or interrupts the supply of the Services;
• introduce malicious programs into our hardware and software or Systems, including viruses, ransomware, malware, trojan horses and e-mail bombs;
• reveal or allow others access to your Account’s password or authentication details or allow others to use your Account or authentication details;
• carry out security breaches or disruptions of a network, including accessing data where you are not the intended recipient or logging into a server or account that you are not expressly authorised to access or corrupting any data (including network sniffing/monitoring, pinged floods, packet spoofing, denial of service and forged routing information for malicious purposes);
• use any program/script/command, or send messages of any kind, with the intent to interfere with, or disable, any person’s use of the Services;
• if applicable, send any form of harassment via email, or any other form of messaging, whether through language, frequency, or size of messages, or use the Services in breach of any person’s privacy (such as by way of identity theft or “phishing”); or
• circumvent user authentication or security of any of our Services, networks, accounts or hosts or those of our other users.

4. SUPPLY OF GOODS

Goods

• This clause 4 applies to the extent that you have ordered Goods from us, as set out in the Quote on the Site.
• Subject to your compliance with these Terms, we agree to provide you with the Goods in accordance with these Terms, whether ourselves or through our Personnel.

Delivery

• We will deliver, or direct the manufacturer of the Goods to deliver, the Goods to your nominated delivery address. You acknowledge and agree that we may provide you with an estimated date and time for delivery of the Goods and that any date and time provided is an estimate only.
• You agree to pay for all Delivery Costs, which are included in the Quote.

Title and Risk

• You acknowledge and agree that we are facilitating the delivery of the Goods from the manufacturer, and that ultimately it is the responsibility of the manufacturer to deliver the Goods to you.
• We agree to assist you with any initial questions or concerns you may have in relation to the timing and delivery of your Goods. Once the Goods arrive into New Zealand, we will provide the live tracking details of the delivery of the Goods through the Site. However, we reserve the right to direct you to discuss your delivery directly with the manufacturer at any time, and in this circumstance, we will have no obligation to communicate with you further as to the status of your order.
• Title and risk in the Goods will pass to you on delivery of the Goods to your nominated delivery address.

Manufacturer’s Warranty

• We may pass on to you a Manufacturer’s Warranty with respect to the Goods. Please refer to the relevant Manufacturer’s Warranty card provided by the manufacturer of the Goods.
• We will use our reasonable commercial endeavours to assist you in bringing warranty claims to a manufacturer under a Manufacturer’s Warranty, however, the Manufacturer Warranty is between you and the manufacturer and we have no obligations to you under the Manufacturer’s Warranty.
• We agree that you may sell the Goods to your Patients and install the Goods.

Replacement

• If the Goods are defective, arrive damaged or do not arrive at all, you must immediately inform us and cooperate with us to remedy any issues which may include us replacing the relevant Goods.

Selling the Goods

• We agree that you may sell the Goods to your Patients. You are responsible for the sale of the Goods to your Patients.

Treatment Expiration Date

• Up until the Treatment Expiration Date you may order additional Goods for the Price outlined in the Price List.
• After the Treatment Expiration Date for any Treatment, if you need to purchase additional Goods for the Treatment, you must request the Goods on the Site and pay the Price in the Quote. For the avoidance of doubt, after the Treatment Expiration Date, you will need to make a new Design Request, request the Goods and approve the Quote as per the process outlined in clauses 4 and 1.5.

5. PRICE AND PAYMENT
   • You agree to pay us the Price in accordance with the Payment Terms. All amounts are stated in New Zealand dollars and are exclusive of GST (unless otherwise stated).
   • If we prepare a Design for you and you do not provide your approval for us to manufacture the Goods based on the Design, you must pay us the Design Fee.
   • You agree that we may amend the Price (including the Price List) at any time, by providing 30 days’ written notice to you. If you do not agree to any amendment made to the Price, you may terminate these Terms in accordance with clause 1.
   • Unless otherwise agreed between the Parties, the Price set out in the Quote must be paid before we supply the Goods and/or before we commence the provision of the Services.
   • If any amounts are unpaid 7 days after the payment date (as set out in the Payment Terms), those amounts will become a debt immediately due and payable to us, and we may:

• immediately recover or repossess any Goods belonging to us, and you agree to grant us such rights of access to any premises where the Goods are located to allow us (or our Personnel) to recover or repossess the Goods;
• charge interest at a rate equal to the Reserve Bank of New Zealand’s cash rate from time to time plus 8% per annum (calculated daily and compounding monthly); and/or
• suspend the provision of the Goods and Services until we receive payment.

6. YOUR RESPONSIBILITES
   • During the Term, you agree to provide the Goods and any associated services to your Patients:

• with due care, skill and diligence;
• with due expedition and without delay; and
• in a proper and professional manner, and in accordance with best industry practice.
  • You agree (and you agree to ensure that your Personnel):
• will not commit any act or omission, directly or indirectly, which may bring us into breach of any Law, the subject of any Liability, or into disrepute;
• will comply with the provisions of these Terms and all applicable Laws (including the New Zealand Health Practitioners Competence Assurance Act 2003);
• will not do anything that may adversely affect our goodwill, brand or reputation;
• immediately inform us of any issues, concerns or matters which may (directly or indirectly) adversely affect our reputation or brand (or that of the Goods), including where you have become aware of a Good being defective, and cooperate with, and assist, us to respond to, or rectify or remedy, any such issues, concerns or matters;
• not make or offer any warranty or guarantee, or make any representation, in relation to the Treatment or the Goods, other than those warranties, guarantees or representations expressly stated in the material provided to you by us; and
• to assist us with executing any recalls of the Goods when notified by us, and within the timeframe reasonably required by us. We agree to reimburse you for any costs or expenses reasonably incurred as part of assisting us to execute a recall, unless the recall was caused by you.

7. YOUR OBLIGATIONS AND WARRANTIES
   • You represent, warrant, acknowledge and agree that:

• there are no legal restrictions preventing you from engaging us, or agreeing to these Terms;
• you have not relied on any representations or warranties made by us in relation to the Goods and Services (including as to whether the Goods and Services are or will be fit or suitable for your particular purposes), unless expressly stipulated in these Terms;
• you and your Personnel will cooperate with us, will not interfere with our supply of the Goods and Services, and will provide us with all assistance, resources, data, documentation, information, instructions and access necessary to enable us to provide the Goods and Services and as otherwise requested by us, from time to time, and in a timely manner;
• the information you provide to us is true, correct and complete and that we will rely on such information and documentation in order to provide the Services;
• you will not infringe any third party rights in working with us and receiving the Goods and Services;
• you are responsible for obtaining, and providing to us if necessary, any access, consents, licences, approvals and permissions from other parties necessary for the Goods and Services to be provided, at your cost, including but not limited to any Patient consent required to share Personal Information;
• the Services are provided to you solely for your benefit and you will not (or you will not attempt to) disclose, or provide access to, our Services to third parties without prior written consent;
• you have, and will maintain, professional registration as a dentist, as required by the Dental Council of New Zealand, and will undertake any continuing professional development requirements or other requirements needed to maintain professional registration as a dentist. You must immediately notify us of any current investigations by the Dental Council of New Zealand relating to you, or any conditions placed upon you by Dental Council of New Zealand;
• you will follow all relevant professional codes, guidelines, policies and standards, including those developed or enforced by the Dental Council of New Zealand, or any similar body or authority relevant to the standards and practice of dentistry;
• you are responsible for the acts or omissions, or the goods or services provided by, your Personnel, and you agree to ensure they cooperate with us and do not interfere with our supply of the Goods and Services;
• you will be responsible for the use of any part of the Services, and you must ensure that no person uses any part of the Services to break any Law or infringe any person’s rights (including Intellectual Property Rights) or in any way that damages, interferes with or interrupts the supply of the Services;
• you have all the hardware, software and services which are necessary to access and use the Services, including any required operating systems as set out on the Site;
• we will not be responsible for any Liability that arises as a result of any works, goods or services not provided by us, or provided by you or your Personnel; and
• you agree to keep, store, use and maintain the Goods in accordance with the instructions provided by us, the manufacturer, or those provided with the Goods.

8. NEW ZEALAND CONSUMER LAWS
   • We warrant that the Goods and Services will, at the time they are provided, materially conform to any requirement set out on the Site.
   • If the Services do not meet a warranty, at your request and at our cost, we must reperform the Services so that they meet or satisfy that warranty. Our obligation under this clause 2 is your sole remedy against us for breach of warranty.
   • To the maximum extent permitted by law, our warranties are limited to those stated in clause 1. Any implied condition or warranty (including any warranty under Part 3 of the New Zealand Contract and Commercial Law Act 2017) is excluded.
   • You agree and represent that you are acquiring the Services for the purposes of trade. The Parties agree that:

• to the maximum extent permissible by law, the New Zealand Consumer Guarantees Act 1993 does not apply to the supply of the Services or these Terms;
• sections 9, 12A, 13 and 14(1) of the Fair Trading Act 1986 are excluded and our liability under the FTA is accordingly limited; and
• it is fair and reasonable that the Parties are bound by these Terms, including this clause 4.
  • This clause 8will survive the termination or expiry of these Terms.

9. TERM AND TERMINATION
   • Either Party may terminate these Terms at any time by giving 30 days’ notice in writing to the other Party.
   • These Terms will terminate immediately upon written notice by a Party (Non-Defaulting Party) if:

• the other Party (Defaulting Party) breaches a material term of these Terms and that breach has not been remedied within 10 Business Days of the Defaulting Party being notified of the breach by the Non-Defaulting Party; or
• the Defaulting Party is unable to pay its debts as they fall due.
  • These Terms will terminate immediately upon written notice by us, if you:
• if you fail to provide us with clear or timely instructions or information to enable us to provide the Goods and/or Services; or
• for any other reason outside our control which has the effect of compromising our ability to provide the Goods and/or Services.
  • Upon expiry or termination of these Terms:
• we will immediately cease providing the Goods and Services;
• we will be entitled to permanently delete all Customer Data within 1 month from expiry or termination of these Terms (except to the extent we are required to retain any Customer Data under Law);
• we will provide any further disengagement services at our then current rates, and such further disengagement support services must be agreed in writing by the Parties;
• without limiting your statutory rights, you agree that any payments made by you to us are not refundable to you;
• you are to pay for all Goods provided prior to termination, including Goods which have been provided and have not yet been invoiced to you, and all other amounts due and payable under these Terms;
• by us pursuant to clause 2(a) or you pursuant to clause 9.1, you also agree to pay us our additional costs, reasonably incurred, and which arise directly from such termination;
• where the Price or any other amount payable by you to us under these Terms has not been paid in accordance with the Payment Terms, you agree to grant us such rights of access to any premises where the Goods are located to allow us (or our Personnel) to recover or repossess any Goods belonging to us; and
• you agree to promptly return (where possible), or delete or destroy (where not possible to return), any information, documentation or material owned by us that is in your possession or control, subject to any rights you may have to any Intellectual Property in accordance with clause 12.
  • We will retain your documents (including copies) as required by law or regulatory requirements. Your express or implied agreement to these Terms constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on expiry or termination of these Terms.
  • Termination of these Terms will not affect any rights or liabilities that a Party has accrued under it.
  • This clause 9 will survive the termination or expiry of these Terms.

10. INDEMNITY
    • Except to the extent that the Liability arose from our negligent acts or omissions or any of our Personnel, you indemnify us and our Personnel against all Liability that we or any of our Personnel may sustain or incur as a result, whether directly or indirectly, of:

• your or your Personnel’s breach of clauses 6, 7, 12, 13, 14, 15;
• your or your Personnel’s negligent, unlawful or wilful acts or omissions in connection with these Terms, the Services or the Goods.
  • To the maximum extent permitted by law, we agree to indemnify you in respect of, any actual Liability that you suffer or incur, to the extent relating to a third party claim against you for any death or personal injury or loss of a Patient, resulting from our negligent act or wilful misconduct.

11. LIMITATION OF LIABILITY
    • Despite anything to the contrary, to the maximum extent permitted by law, you are liable for, any Liability that we may suffer, incur or otherwise become liable for, arising from or in connection with:

• your installation of the Goods with your Patients;
• your (or your Personnel’s) performance of the services to your Patients in relation to the Goods;
• any breach by you (or any of your Personnel) of any provision of these Terms;
• you or any of your Personnel infringing the rights of any third party (including Intellectual Property Rights).
  • Each Party must use reasonable efforts, to the extent within its control and consistent with each Party’s obligations under these Terms, to promptly mitigate any Liability likely to be or actually sustained or suffered by it under or in connection with these Terms.
  • Despite anything to the contrary, to the maximum extent permitted by law:
• we will not be liable for any Consequential Loss;
• a Party’s liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel), including any failure by that other Party to mitigate its loss; and
• our aggregate liability for any Liability in relation to the provision of the Goods and Services or these Terms will be limited to us resupplying the Goods and Services to you or, in our sole discretion, to us repaying you the amount of the Price paid by you to us in respect of the relevant provision of the Goods and Services to which the Liability relates.
  • This clause 11 will survive the termination or expiry of these Terms.

12. INTELLECTUAL PROPERTY
    • You agree that all Intellectual Property Rights:

• in the Services and Our Materials;
• in the New Materials and Improvements; and
• in the Feedback,

will at all times vest, or remain vested, in us (or, if applicable, our third party service providers).  To the extent that ownership of the Intellectual Property Rights do not automatically vest in us, you agree to do all acts necessary or desirable to assure our title to such rights.

• We grant you a non-exclusive, revocable, worldwide, non-sublicensable and non-transferable right and licence, to use Our Materials that we provide to you, the New Materials and Improvements, solely for the purposes for which they were developed and for your use and enjoyment of the Goods and/or Services, as contemplated by these Terms.
• We grant you a non-exclusive, revocable, non-sublicensable and non-transferable right and licence, for the duration of the Term, to use our marketing and promotional materials that we provide to you, solely for the purpose of marketing and promoting the Treatment and the Goods. You agree to use the most recent versions of any marketing or promotional material provided by us.
• You grant us a non-exclusive, worldwide, right and licence, for the duration of the Term, to use, commercialise and advertise on our website and in any other channel that we reasonably see fit, details about your dental clinic, including website address, location and contact details and your branding that you provide to us, including any images and details of any relevant professional biography, for the purposes of marketing our services, or any other purpose reasonably contemplated by these Terms.
• You grant us a non-exclusive, revocable, worldwide, non-sublicensable and non-transferable right and licence, for the duration of the Term, to use Your Materials that you provide to us, solely for the purposes for which they were developed and solely for the performance of our obligations under these Terms.
• In the use of any Intellectual Property Rights in connection with these Terms, you must not (and you must ensure that your Personnel do not) commit any intellectual property breach.
• You must not whether directly or indirectly, without our prior written consent:

• copy or use, in whole or in part, any of our Intellectual Property;
• reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any of our Intellectual Property to any third party;
• reverse assemble, reverse engineer, reverse compile or enhance the Services;
• attempt to discover the source code or object code or underlying structures, ideas, know how or algorithms in relation to the Services, the data or documentation;
• breach any Intellectual Property Rights connected with the Services, including altering or modifying any of our Intellectual Property;
• cause any of our Intellectual Property to be framed or embedded in another website; or create derivative works from any of our Intellectual Property;
• resell, assign, lease, hire, sub-license, transfer, distribute or make available the Services to third parties;
• “frame”, “mirror” or serve any of the Services on any web server or other computer server over the Internet or any other network; and
• alter, remove or tamper with any trademarks, any patent or copyright notices, any confidentiality legend or notice, any numbers or any other means of identification used on or in relation to the Services.
  • If you or any of your Personnel have any Moral Rights in any material provided, used or prepared in connection with this Agreement, you agree to (and agree to ensure that your Personnel) consent to our use or infringement of those Moral Rights.
  • This clause 12 will survive the termination or expiry of these Terms.

13. CONFIDENTIALITY
    • Each Receiving Party agrees:

• not to disclose the Confidential Information of the Disclosing Party to any third party;
• to use all reasonable endeavours to protect the Confidential Information of the Disclosing Party from any unauthorised disclosure; and
• to only use the Confidential Information of the Disclosing Party for the purposes for which it was disclosed or provided by the Disclosing Party, and not for any other purpose.
  • The obligations in clause 1 do not apply to Confidential Information that:
• is required to be disclosed in order for the Parties to comply with their obligations under these Terms;
• is authorised to be disclosed by the Disclosing Party;
• is in the public domain and/or is no longer confidential, except as a result of a breach of these Terms; or
• must be disclosed by Law or by a regulatory authority, including under subpoena.
  • Each Party agrees that monetary damages may not be an adequate remedy for a breach of this clause 13. A Party is entitled to seek an injunction, or any other remedy available at law or in equity, at its discretion, to protect itself from a breach (or continuing breach) of this clause 13.
  • This clause 13 will survive the termination or expiry of these Terms.

14. CUSTOMER DATA
    • You grant us a limited licence to copy, transmit, store and back-up or otherwise access the Customer Data during the Term and for a reasonable period after the Term to:

• supply the Services (including for back-ups) to you (including to enable you, and your Personnel to benefit from the Services);
• diagnose problems with the Services;
• enhance and otherwise modify the Services, and
• as reasonably required to perform our obligations under these Terms.
  • You must, at all times, ensure the integrity of the Customer Data and that your provision of, and use of the Customer Data is compliant with all Laws.
  • You represent and warrant that:
• you have obtained all necessary rights, releases and permissions to provide all your Customer Data to us and to grant the rights granted to us in these Terms;
• the Customer Data is accurate and complete;
• the Customer Data (and its transfer to and use by us as authorised by you) under these Terms does not violate any Laws (including those relating to export control and electronic communications) or rights of any third party, including any Intellectual Property Rights, rights of privacy, or rights of publicity; and
• any use, collection and disclosure authorised in these Terms is not inconsistent with the terms of any applicable privacy policies.
  • We assume no responsibility or Liability for the Customer Data. You are solely responsible for the Customer Data and the consequences of using, disclosing, storing or transmitting it. It is your responsibility to back up the Customer Data.
  • You acknowledge and agree that the operation of the Services is reliant on the accuracy of the Customer Data, and the provision of inaccurate or incomplete Customer Data by you may affect the use, output and operation of the Services.

15. PRIVACY AND COMMUNICATION
    • You are responsible for the collection, use, storage and otherwise dealing with Personal Information related to your business and all matters relating to the Customer Data.
    • You must, and must ensure that your Personnel, comply with the legal requirements of the New Zealand Privacy Act 2020, the New Zealand Health Information Privacy Code 2020 and any privacy or anti-spam Laws applicable to you in respect of all Personal Information collected, used, stored or otherwise dealt with under or in connection with these Terms.
    • We agree to handle any Personal Information you provide to us, solely for the purpose of performing our obligations under these Terms and in accordance with any applicable Laws.
    • We may contact you via the Site for the Services, using in-Account notifications or via-off platform communication channels, such as text messages or email with functional notifications.
    • We may also send marketing and promotional material which may be of interest to you, using your contact details. You may opt out of receiving direct marketing messages at any time. Where you opt-out we will continue to send you functional communications relevant to your use of the Services.
    • This clause 15 will survive the termination or expiry of these Terms.
16. GENERAL
    • Amendment: These Terms may only be amended in writing and as agreed by the Parties.
    • Assignment: Subject to clause 3, a Party must not assign or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent is not to be unreasonably withheld).
    • Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with these Terms, to a debt collector, debt collection agency, or other third party.
    • Disputes: A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, these Terms (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the President of the New Zealand Law Society to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
    • Entire agreement: These Terms contain the entire understanding between the Parties, and supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter. Without limiting the previous sentence, the Parties agree to contract out of sections 9, 12A and 13 of the New Zealand Fair Trading Act 1986, and that it is fair and reasonable that the Parties are bound by this clause 5.
    • Force majeure: Neither Party will be liable for any delay or failure to perform their respective obligations under these Terms if such delay or failure is caused or contributed to by a Force Majeure Event. This clause will not apply to a Party’s obligation to pay any amount that is due and payable to the other Party under these Terms.
    • Further assurance: Each Party must promptly do all things and execute all further instruments necessary to give full force and effect to these Terms and your obligations under it.
    • Governing law: These Terms is governed by the laws of New Zealand. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New Zealand and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
    • GST: If and when applicable, GST payable on the Price will be set out in your quote and our invoice (if applicable). You agree to pay the GST amount at the same time as you pay the Price.
    • Joint and several Liability: Where you constitute two or more individuals or entities, you will each be jointly and severally liable under these Terms.
    • Notices: Any notice given under these Terms must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email, and where the time of transmission is not during business hours on a Business Day, 9am on the next Business Day.
    • Online execution: These Terms may be executed by means of such third party online document execution service as we nominate, subject to such execution being in accordance with the applicable terms and conditions of that document execution service.
    • Relationship of Parties: These Terms is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
    • Severance: If any provision (or part of it) under these Terms is held to be unenforceable or invalid in any jurisdiction, then it will be interpreted as narrowly as necessary to allow it to be enforceable or valid. If a provision (or part of it) under these Terms cannot be interpreted as narrowly as necessary to allow it to be enforceable or valid, then the provision (or part of it) must be severed from these Terms and the remaining provisions (and remaining part of the provision) of these Terms is valid and enforceable.
    • Variations: All variations to these Terms must be agreed in writing between the Parties and will be priced as reasonably determined by us. If we consider that any instruction or direction from you constitutes a variation to the scope of our obligations under these Terms, or would result in us suffering or incurring any additional cost or delay, then we will not be obliged to comply with such instruction or direction unless agreed in accordance with this clause 15.
17. INTERPRETATION & DEFINITIONS
    • Any reference to “Goods and Services” may mean “Goods and/or Services”, as the case may be.
    • In these Terms, unless the context otherwise requires, capitalised terms have the meanings given to them in the Quote, and:

Account means an account accessible to you to use the Services.

Business Days means a day on which banks are open for general banking business in New Zealand, excluding Saturdays, Sundays and public holidays.

Confidential Information includes information which:

• is disclosed to the Receiving Party in connection with these Terms at any time;
• is prepared or produced under or in connection with these Terms at any time;
• relates to the Disclosing Party’s business, assets or affairs; or
• relates to the subject matter of, the terms of and/or any transactions contemplated by these Terms,

whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever the Receiving Party receives that information.

Consequential Loss includes any consequential, special or indirect loss, damage or expense, or any real or anticipated loss of revenue, loss of profit, loss of use, loss of occupation, loss of benefit, loss of financial opportunity, or economic loss (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise, and howsoever arising). The Parties acknowledge and agree that your obligation to pay us the Price and any other amounts due and payable by you to us under these Terms will not constitute “Consequential Loss” for the purposes of this definition.

Customer Data means the information, materials, logos, documents, qualifications and other Intellectual Property or data inputted by you or your Personnel into the Services or stored by the Services or generated by the Services as a result of your use of the Services.

Delivery Costs means the costs associated with the delivery or provision of the Goods, including any insurance, customs, tariffs, duties or other such charges that may apply to the Goods and Services.

Design Fee is set out on the Price List on the Site.

Disclosing Party means the party disclosing Confidential Information to the Receiving Party.

Force Majeure Event means any event or circumstance which is beyond a Party’s reasonable control including but not limited to, acts of God including fire, hurricane, typhoon, earthquake, landslide, tsunami, mudslide or other catastrophic natural disaster, civil riot, civil rebellion, revolution, terrorism, insurrection, militarily usurped power, act of sabotage, act of a public enemy, war (whether declared or not) or other like hostilities, ionising radiation, contamination by radioactivity, nuclear, chemical or biological contamination, any widespread illness, quarantine or government sanctioned ordinance or shutdown, pandemic (including COVID-19 and any variations or mutations to this disease or illness) or epidemic.

Goods means the goods we agree to provide under these Terms, as further particularised on the Site and in the Quote.

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

Improvements means any development, modification, adaptation or improvement of Our Materials or any New Materials made by or on behalf of either Party (or any of their respective Personnel), or in respect of which Intellectual Property Rights are acquired by, either Party during the Term, including, but not limited to any machine learning algorithms output from the Services.

Intellectual Property means any copyright, registered or unregistered designs, patents or trade mark rights, domain names, know-how, inventions, processes, trade secrets or Confidential Information, circuit layouts, software, computer programs, databases or source codes (including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing).

Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property.

Law or Laws means all applicable laws, orders, judgments, rules, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any person with the authority to bind the relevant Party in connection with these Terms or the provision of the Goods and/or Services.

Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party, a Party or otherwise.

Manufacturer Defect means a defect in the Goods that is covered by the manufacturer under the Manufacturer’s Warranty.

Manufacturer’s Warranty means the warranty offered to you by the manufacturer of the Goods (if any), which is between the manufacturer and you.

Moral Rights has the meaning given in the New Zealand Copyright Act 1994.

New Materials means all Intellectual Property developed, adapted, modified or created by or on behalf of us or you or any of your or our respective Personnel in connection with these Terms or the supply of the Goods and Services, whether before or after the Start Date.

Our Materials means all work, models, processes, technologies, strategies, materials, information, documentation, specifications and services that we may provide to you under these Terms, and which may contain material which is owned by or licensed to us, and is protected by New Zealand and international laws.

Patient means a patient that receives the Treatment from you which includes using the Goods which we have supplied to you.

Payment Terms means the Price, method and timing of payment set out in the Quote.

Personal Information is defined in the New Zealand Privacy Act 2020 and includes health information as defined in the New Zealand Health Information Privacy Code 2020, and also includes any similar term as defined in any other privacy law applicable to you.

Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents.

Price means the price set out on the Price List on our Site and in your Quote for the provision of the Goods and includes any deposit (if applicable).

Price List means the list of prices for the Goods as outlined on our Site.

Quote means the online quote to which these Terms are attached by reference.

Receiving Party means the party receiving Confidential Information from the Disclosing Party.

SaaS Services means our Software as a service as described on the Site.

Services means the Software, the SaaS Services, any technical support services as further particularised on the Site.

Software means our cloud-based software, including all instructions in hard copy or electronic form and any update, modification or release of any part of that software as described on the Site;

Start Date means the date these Terms is accepted in accordance with clause 1.1.

Treatment means the aligner treatment as outlined on the Site and in the Quote.

Treatment Expiration Date is calculated as 2 years from the date of shipment of the Goods.

Your Materials means all work, models, processes, technologies, strategies, materials, information, documentation and services (including Intellectual Property), owned or licensed by you or your Personnel before the Start Date and/or developed by or on behalf of you or your Personnel independently of these Terms.