Terms and Conditions

By engaging Halswell Dental 2024 Limited, trading as Halswell Dental (company number 9156373) (HD, we, our, us) to provide Services to you (you, Client) you acknowledge and agree to the following terms and conditions.
1. Agreement
1.1 The terms of this agreement (Agreement) comprise these Terms of Service (if any).
1.2 Capitalised terms used within these Terms of Service which are not defined in-line have the meaning given to those terms in clause 16 (Definitions and Interpretations).
2. Services
2.1 Standard of Services: HD will perform the Services:
(a) in accordance with the terms of this Agreement;
(b) in a professional and courteous manner; and
(c) in compliance with all applicable laws.
2.2 Communication and reporting:
(a) HD will provide you with such reporting and information in respect of the progress of the Services as may be agreed by the parties from time to time.
(b) You agree that only those with authority to instruct us in relation to the Services will do so, and we are entitled to rely on all instructions provided.
(c) HD will liaise with you during the course of performing the Service in accordance with your reasonable requirements.
(d) HD will comply with the standards, codes and regulations that govern dental practices in New Zealand.
2.3 Client obligations: You agree to:
(a) giving clear instructions;
(b) not interfere with, or damage, our equipment or materials in any way;
(c) promptly respond to HD and in event no later than two Business Days following any request from us for clarification or input in respect of any aspect of the Services;
(d) provide us with such information, co-operation and assistance as may be reasonably required to enable us to provide the Services and perform our obligations under this Agreement in a prompt and efficient manner;
(e) treat all HD personnel with respect and not act in a manner that is abusive towards any of our personnel.
3. Deposit
3.1 If HD requires a deposit to be paid in relation to any Service, this deposit shall be payable at the time and in the manner agreed between the parties.
3.2 The deposit is non-refundable. Reasons for this include:
(a) HD may incur costs in relation to an engagement following entry into this Agreement but prior to delivering the Services (such as in relation to the purchasing of materials, scheduling of labour, and other preparatory work); and
(b) on the understanding that you were committed to the engagement, we may have incurred opportunity costs by turning away other clients in anticipation of providing Services to you.
4. Fees
4.1 You must pay us the Fees for the provision of Services pursuant to this Agreement, unless otherwise agreed by us at our sole discretion.
4.2 We may provide you with your estimated Fee either verbally or in a treatment written estimate.
4.3 We reserve the right to require payment of all or part of the Fee in advance, including if you:
(a) wish to use a Community Services Card to pay for the Service; and
(b) have a history of late or non-payment.
4.4 In addition to the Fees, you shall pay to HD any reasonable expenses incurred by HD in connection with its performance of the Services to the extent the relevant expense is prior approved by you (such approval not to be unreasonably withheld or delayed).
4.5 If you fail to pay any amount due to HD under this Agreement by the relevant due date, you acknowledge and agree that HD may:
(a) charge interest on the overdue amount at the rate of 10% per annum until such time that the overdue amount is paid to HD in full; and/or
(b) suspend performance of the Services until all overdue amounts are paid.
4.6 You may not:
(a) deduct or withhold from the amount payable any amounts for any tax or any other reason unless the withholding or deduction are required by law; and
(b) set-off against or deduct from the amount payable any amounts that are due to you by HD.
4.7 When you are in default, we reserve the right to engage a debt collection agency to recover any amount due, in which case, you must pay HD's costs (including legal costs, as between solicitor and client on an indemnity basis) of and incidental to the enforcement or attempted enforcement of HD's rights, remedies, and powers under this Agreement.
5. Appointments
5.1 If you are no longer able to attend the appointment for the Service, you must give us at least 24 hours notice.
5.2 We reserve the right to charge you, at our sole discretion, 50% of the Fee, if you do not show up to the appointment or if you cancel within 24 hours of the appointment.
5.3 At our discretion, we may require your consent to a Service verbally or in writing.
6. Intellectual Property
6.1 Pre-existing Intellectual Property: All Intellectual Property owned by or licensed to (other than by the other party) either party and existing prior to the Commencement Date (Pre-existing Intellectual Property) shall remain the exclusive property of that party.
New IP:
(a) The parties acknowledge and agree that any Intellectual Property that is developed or created by HD in connection with performance of the Services will vest in, and is assigned to, the Client subject to payment of the Fee in full.
(b) Notwithstanding clause 6.1(a), any Intellectual Property that is developed or created through the modification, enhancement, adaptation and/or development of HD's Pre-existing Intellectual Property shall vest absolutely in HD upon creation.
6.2 Further assurances: Each party undertakes at its own expense to execute and deliver any document and to do all things as may reasonably be required in order to assist, in respect of matters within that party’s control, the other party to obtain the full benefit of this clause 6 according to its true intent.
6.3 Know how: Nothing in this Agreement limits HD's right to use any ideas, concepts, methodologies, processes and know-how that are used, developed or created in the course of providing the Services, provided that such use does not breach any confidentiality obligation owed by HD to you or infringe your Intellectual Property rights.
7. Confidentiality
7.1 Use and disclosure of Confidential Information:
(a) We may only use or reproduce your Confidential Information for the purposes of performing our or exercising our rights under this Agreement.
(b) We must not disclose your Confidential Information to any person except as permitted by this Agreement.
7.2 Disclosure of Confidential Information: We may disclose your Confidential Information to:
(a) our personnel, contractors as is necessary to fulfil our obligations under this Agreement;
(b) the extent that Confidential Information already is or becomes public knowledge other than as result of a breach of this clause 7;
(c) the extent that Confidential Information can be proven to be already known by us at the time of the disclosure, other than as a result of any disclosure under this Agreement and other than as a result of a breach of this clause 7;
(d) any person with your prior written consent; or
(e) the extent the disclosure is required by law.
7.3 Client referee and promotional material: We will seek your consent prior to using any imagery or videography of the works performed for promotional purposes.
8. Privacy
8.1 If HD processes Personal Information (as defined in the New Zealand Privacy Act 2020 in the course of performing its obligations under this Agreement, HD will:
(a) comply with all applicable privacy laws in respect of HD's processing of that Personal Information;
(b) not do or omit to do anything that will cause you to breach your obligations under any applicable privacy law;
(c) adhere to our Privacy Policy.
9. Warranties
9.1 Mutual warranties: Each party warrants to the other party that:
(a) it has full power and capacity to execute, deliver, and perform its obligations under, this Agreement; and
(b) it is not aware of any fact or circumstance which would, or might reasonably be expected to, prevent the party from performing its obligations under this Agreement.
9.2 No warranty as to fitness for purposes: HD does not warrant that the Services and the works produced by them will be fit for any particular purpose.
9.3 Exclusion of implied warranties: The Consumer Guarantees Act 1993, the Fair Trading Act 1986, and other statutes may impose warranties, conditions or obligations on us which cannot by law (or which can only to a limited extent by law) be excluded. The Seller excludes all warranties, conditions or obligations to the extent permitted by law and exclude any warranty, condition or obligation imposed or implied under common law, equity or otherwise.
10. Liability and indemnity
10.1 HD's aggregate and total liability for any and all claims arising under or out of this Agreement (including for negligence) or otherwise howsoever arising that is not already limited under this Agreement is limited to our Fees for the engagement to which the claim relates.
10.2 To the extent that HD is found liable in relation to a fault in the Service, the remedy shall be, at HD's discretion, the reperformance or replacement of the Services or refund of the Fees paid for the relevant Services, provided that:
(a) the fault is not due to something outside of our control; and
(b) the fault occurs within the time period that the particular Service is expected to remain fault free.
10.3 To the maximum extent permitted by law, HD is not liable to the Client for any incidental, special, indirect, consequential, or punitive losses of any character, including damages for loss of business or goodwill, loss of opportunity, work stoppage, system or website disruption, loss of information or data, loss of revenue, profit or anticipated savings, any other commercial or economic loss of any kind, whether arising in contract, breach of warranty, tort (including negligence), product liability, or otherwise.
10.4 You shall indemnify and hold HD harmless in respect of any damage, loss, liability or expense suffered or incurred by HD as a result of:
(a) your breach of this Agreement; or
(b) a third party claim against HD caused or contributed to by an act or omission by you.
11. Force Majeure
11.1 Force Majeure: Neither party will be liable for any act, omission or failure by it under this Agreement if that act, omission or failure results directly from a Force Majeure event, provided that the affected party must:
(a) as soon as reasonably practicable after becoming aware of the Force Majeure, notify the other party in writing accordingly, describing the event or circumstance of Force Majeure; and
(b) use reasonable endeavours to:
(i) overcome, and to mitigate the effects of, the Force Majeure; and
(ii) complete the affected party's obligations under this Agreement so far as is practicable in light of the event of circumstance of Force Majeure.
11.2 Definition: For the purposes of clause 11.1, Force Majeure means, in relation to either party (Affected Party), an event or circumstance which is beyond the reasonable control of the Affected Party, including any war, riot, strike, lockout, slowdown, epidemic, fire, flood, lightning, explosion, hurricane, typhoon, earthquake, act of God or other natural disaster or government action or restriction but does not include any lack of funds on the part of the Affected Party.
12. Term and termination
12.1 Term: This Agreement commences on the Commencement Date and will continue in force until the works are the latter of:
(a) the Services is completed; or
(b) otherwise terminated in accordance with clause 12.2.
12.2 Termination: Either party may terminate this Agreement with immediate effect by notifying the other party in writing if:
(a) the other has committed any material or persistent breach of this Agreement which is either incapable of remedy or which, if capable of remedy, has not been remedied within 14 days of the non-defaulting party giving the other party notice of the nature of such breach and requiring it to be remedied;
(b) the other party suffers an Insolvency Event;
(c) any event of Force Majeure occurs which is of such magnitude or will be of such duration that it is, or is reasonably likely to be, impossible or impractical for HD to comply, to a material extent, with HD's obligations under this Agreement (taken as a whole) for a period of 20 Business Days or longer; or
(d) all Services under the Agreement have been completed.
12.3 Consequences: Upon expiry or termination of this Agreement for whatever reason:
(a) HD will immediately cease to provide the Services and will be entitled to render a final invoice to you in respect of the Fees for all Services performed prior to termination which have not already been invoiced, and you will pay such invoice and any and all other outstanding invoices for Fees in accordance with this Agreement;
(b) the parties acknowledge and agree that such termination will be without prejudice to the rights and remedies of either party in respect of any preceding breach of this Agreement by the other party; and
(c) clauses 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and this clause 12.3 will survive termination of this Agreement, together with such other provisions of this Agreement that are by their nature intended to survive termination.
13. Disputes
13.1 Where any dispute arises in connection with this Agreement or its subject matter, the party raising the dispute must notify the other party in writing, as soon as reasonably practicable specifying the matter in dispute.
13.2 If you notify us, we will acknowledge the receipt of such notice, in writing, within five Business Days.
13.3 Within 10 - 20 Business Days of our written acknowledgement, we will investigate and decide if the complaint is justified. If we require longer than 20 Business Days, we will advise you of this and the reasons for the delay.
13.4 Any claim or dispute arising under the Agreement that cannot be resolved between the parties, will be referred to alternative avenues, in accordance with the New Zealand Dental Association and Health and Disability Commissioner.
13.5 Nothing in this clause prevents either party from taking immediate steps to seek any equitable relief before the New Zealand courts.
14. Notices
14.1 Any written notice required to be given pursuant to this Agreement shall be deemed served when:
(a) given personally, on delivery; or
(b) sent by email, as evidenced by the sender's sent email history, unless the other party can prove it was not received.
14.2 For the purposes of this Agreement:
(a) any notice delivered after 5pm on a Business Day, or at any time on a non-Business Day, shall be deemed received at 9am on the next Business Day; and
(b) our email address for notices is info@halswelldental.co.nz.
15. General
15.1 Entire agreement: This Agreement records the entire understanding and agreement of the parties relating to the matters dealt with in this Agreement. This Agreement supersedes all previous understandings or agreements (whether written, oral or both) between the parties relating to these matters.
15.2 Assignment: You may not assign or otherwise transfer any of your rights or obligations under this Agreement to any other person without our prior written consent.
15.3 Relationship between the parties: Nothing in this Agreement will constitute either party as the partner, agent, employee or officer of the other party, and neither party will make any contrary representation to any other person.
15.4 Amendments: No amendment to this Agreement will be valid unless recorded in writing and signed by a duly authorised representative of each party.
15.5 Governing law and jurisdiction: This Agreement is governed by the laws of New Zealand. The parties submit to the non-exclusive jurisdiction of the New Zealand courts in respect of all matters relating to this Agreement.
16. Definitions and interpretations
16.1 Definitions: In these Terms of Service, unless the context requires otherwise:
Agreement has the meaning given in clause 1.1.
Business Day means any day, excluding Saturdays, Sundays and public holidays in the Canterbury district.
Commencement Date means the date that a quote is accepted by you or our engagement to provide the Services is otherwise actioned by us on your instructions.
Confidential Information means all information of a confidential nature, in any form whether tangible or not and whether visible or not, disclosed or communicated by a party to the other, or learnt or accessed by, or to which the other party is exposed as a result of entering into the provision of Services.
Fees means the amount(s) to be paid to HD for the provision of Services pursuant to this Agreement.
GST means goods and services tax under the Goods and Services Tax Act 1985, at the rate prevailing at the relevant time.
Insolvency Event means, in relation to a party, anything that reasonably indicates that there is a material risk that the party is insolvent or will become unable to pay its debts as they fall due including:
(a) any step being taken to make the party bankrupt, wind up the party's business or to have a receiver, administrator, liquidator or statutory manager appointed to or in respect of the party or any of its assets;
(b) the party ceasing to carry out its business; or
(c) a meeting of the party's creditors being called or held or the party entering into this type of arrangement with, or assignment for the benefit of all or any of its creditors.
Intellectual Property means all intellectual property rights, including patents, trademarks, service marks, logos, trade dress, trade names, domain names, rights in designs, copyright (including computer software and algorithms), database rights, semi-conductor topography rights, utility models, rights in know-how and other intellectual property rights, in each case whether registered or unregistered and including applications for registration, and all other rights or forms of protection having equivalent or similar effect anywhere in the world.
Pre-existing Intellectual Property has the meaning given in clause 6.1.
Services means:
(a) the services to be provided by HD under this Agreement; and
(b) any additional services as may be agreed in writing between the parties from time to time pursuant to a Change Request.
Term has the meaning given in clause 12.1.
Terms of Service means clauses 1 to 14 of this document.
16.2 Interpretation: In these Terms of Service, unless the context requires otherwise:
(a) wherever the words includes or including (or any similar words) are used, they are deemed to be followed by the words "without limitation";
(b) references to any document (however described) are references to that document as modified, novated, supplemented, varied or replaced from time to time, and in any form, whether paper based or in electronic form;
(c) unless otherwise set out in an Agreed Work Order, all monetary amounts are stated in NZD; and
(d) references to any statutory provision include any statutory provision which amends or replaces it, and any regulation or statutory instrument made under it.