In acceptance of this (“Terms and Conditions of Use Policy”) you accept the following rights and obligations as outlined within this agreement 

BETWEEN    ACTIONMAIL LIMITED 
                        trading as ActionHQ and as identified within this agreement as ("ActionHQ") 
AND               Your organisation as is named within the email invitation to register for this website, and as identified within this agreement as ("the Clinic")  

A.  ActionHQ is a specialist provider of integrated customer relationship and fulfilment services.

B.  The Clinic is a veterinary clinic with special requirements in relation to the management and fulfilment of its End Customers’ prescriptions of specific pharmaceutical items.

C.  ActionHQ agrees to provide, and the Clinic commits to receiving, the VetServe branded Service and Related Services, on the terms of the following Agreement.

D.  The VetServe branded Service is a subscription-based, software-as-a-service offering that will enable the Clinic to manage its End Customers’ prescriptions of specific pharmaceutical products. 

E.  Related Services may include, but are not limited to, the following:

a.  fulfilment of End Customers’ prescriptions

b.  implementation and integration

c.  training

d.  permitted user registration

e.  consulting

f.  support

 

 

 

1.1  Definitions: In this Agreement, the following terms have the stated meaning:

 

“Confidential Information” means the terms of this Agreement and any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, this Agreement. ActionHQ’s Confidential Information includes but is not limited to Intellectual Property owned by ActionHQ (or its licensors), including the VetServe software. For the sake of clarity, the Clinic’s Confidential Information includes but is not limited to the Clinic Data.

“Clinic Data” means all data, content, and information (including Personal Information in relation to End Customers) owned, held, used or created by or on behalf of a Clinic that is stored using, or inputted into, the VetServe system under the terms of a Clinic Agreement;

“End Customers” means the Clinic’s customers.

 

 

“Force Majeure” means an event that is beyond the reasonable control of a party but excludes: an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care; or a lack of funds for any reason.

 

“Intellectual Property Rights” means copyright and all rights existing anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trademarks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity. “Intellectual Property” has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.

 

“Objectionable” means being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.

 

“Permitted Users” means those personnel of the Clinic who are authorised to access and use the Service and Related Services on the Clinic’s behalf in accordance with clause 3.3.

 

“Personal Information” means, in relation to End Customers, information about an identifiable individual (as defined in the Privacy Act 2020).

 

 

“Start Date” means the commencement date of this Agreement as set out in Schedule 1.

 

“Sponsor” means a third party pharmaceutical business that has entered into a separate Services Agreement (“Sponsor Agreement”) with ActionHQ to subsidise the cost of providing the Service and Related Services to the Clinic. 

 

“Underlying Systems” means the software, IT solutions, systems and networks (including software and hardware) developed and owned by ActionHQ and that it uses to provide the Service and Related Services, and including any third party solutions, systems and networks.

 

“VetServe” means the brand owned and promoted by Elanco in relation to the Service.

 

“Service” means the service provided to you by ActionHQ under this Agreement and having the core functionality described in Schedule 1. The Service is described in more detail on the Website, as the Website is updated from time to time.

 

 

 

1.2  Interpretation: In this Agreement:

(a)  clause and other headings are for ease of reference only and do not affect the interpretation of this Agreement;

(b)  words in the singular include the plural and vice versa; 

(c)  a reference to:

(i)  a party to this Agreement includes that party’s permitted assigns;

(ii)  personnel includes officers, employees, contractors and agents, but a reference to the Clinic’s personnel does not include ActionHQ;

(iii)  a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity;

(iv)  including and similar words do not imply any limit; and

(v)  a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them;

(d)  no term of this Agreement is to be read against a party because the term was first proposed or drafted by that party; and

(e)  if there is any conflict between Section B and Section A of this Agreement, Section B prevails unless expressly stated otherwise in Section A.

 

 

2.1  General: ActionHQ must use reasonable efforts to provide the Service and Related Services: 

(a)  in accordance with this Agreement and New Zealand law;

(b)  exercising reasonable care, skill and diligence; and

(c)  using suitably skilled, experienced and qualified personnel.

 

2.2  Non-exclusive: ActionHQ’s provision of the Service and Related Services to the Clinic is non-exclusive. Nothing in this Agreement prevents ActionHQ from providing the Service and Related Services to any other person.

 

2.3  Availability: 

(a)  Subject to clause 2.3(b), ActionHQ will use reasonable efforts to ensure the Service is available on a 24/7 basis. However, it is possible that on occasion the Service may be unavailable to permit maintenance or other development activity to take place or in the event of Force Majeure. ActionHQ will use reasonable efforts to publish on the Website and/or notify you by email in advance details of any unavailability.

(b)  Through the use of web services and APIs, the Service interoperates with a range of third-party service features. ActionHQ does not make any warranty or representation on the availability of those features. Without limiting the previous sentence, if a third-party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, ActionHQ may cease to make available that feature to the Clinic. To avoid doubt, if ActionHQ exercises its right to cease the availability of a third-party feature, the Clinic is not entitled to any refund, discount or other compensation. 

 

2.4  Additional Services:

(a)  ActionHQ may, from time to time, make available additional services to supplement the Service.

(b)  At the request of the Clinic and subject to the Clinic paying the applicable Fees, ActionHQ may agree to provide the Clinic an additional service on the terms of this Agreement.

 

 

3.1  General use: The Clinic and its personnel must:

(a)  use the Service and Related Services in accordance with this Agreement solely for:

(i)  the Clinic’s own business and commercial purposes; and 

(ii)  for the purposes of fulfilling its End Customers’ prescription needs; and

(iii)  lawful purposes (including complying with the Unsolicited Electronic Messages Act 2007); and

(b)  not resell or make the Service and Related Services available to any third party, or otherwise commercially exploit the Service and Related Services.

 

3.2  Access conditions: When accessing the Service and Related Services, the Clinic and its personnel must:

(a)  not impersonate another person or misrepresent authorisation to act on behalf of others or ActionHQ;

(b)  correctly identify the sender of all electronic transmissions;

(c)  not attempt to undermine the security or integrity of the Underlying Systems;

(d)  not use, or misuse, the Service and Related Services in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the Service and Related Services;

(e)  not attempt to view, access or copy any material or data other than: 

(i)  that which the Clinic is authorised to access; and

(ii)  to the extent necessary for the Clinic and its personnel to use the Service in accordance with this Agreement;

(f)  neither use the Service and Related Services in a manner nor transmit, input or store any Data, that breaches any third party right (including Intellectual Property Rights and privacy rights) or is Objectionable, incorrect or misleading; and

(g)  comply with any terms of use on the Website, as updated from time to time by ActionHQ.

 

3.3  Personnel: 

(a)  Without limiting clause 3.2, no individual other than a Permitted User may access or use the Service and Related Services.

(b)  The Clinic may authorise any member of its personnel to be a Permitted User, in which case the Clinic will provide ActionHQ with the Permitted User’s name and other information that ActionHQ reasonably requires in relation to the Permitted User.

(c)  The Clinic must procure each Permitted User’s compliance with clauses 3.1 and 3.2 and any other reasonable condition notified by ActionHQ to the Clinic from time to time.

(d)  A breach of any term of this Agreement by the Clinic’s personnel (including, to avoid doubt, a Permitted User) is deemed to be a breach of this Agreement by the Clinic.

 

3.4  Authorisations: The Clinic is responsible for procuring all licences, authorisations and consents required for it and its personnel to use the Service and Related Services, including to use, store and input Clinic Data into, and process and distribute Clinic Data through, the Service and Related Services.

 

 

4.1  Supplier Access to Clinic Data:

(a)  The Clinic acknowledges that:

(i)  ActionHQ may require access to the Clinic Data to exercise its rights and perform its obligations under this Agreement; and

(ii)  to the extent that this is necessary but subject to clause 7, ActionHQ may authorise a member or members of its personnel to access the Clinic Data for this purpose.

(b)  The Clinic must arrange all consents and approvals that are necessary for ActionHQ to access the Clinic Data as described in clause 4.1(a).

 

4.2  Analytical Data: The Clinic acknowledges and agrees that: 

(a)  ActionHQ may:

(i)  use Clinic Data and information about the Clinic’s and the Clinic’s End Customers’ use of the Service and Related Services to generate anonymised and aggregated statistical and analytical data (“Analytical Data”); and

(ii)  use Analytical Data for ActionHQ’s internal research and product development purposes and to conduct statistical analysis and identify trends and insights; and

(iii)  supply Analytical Data to third parties;

(b)  ActionHQ’s rights under clause 4.1(a) above will survive termination or expiry of this Agreement; and

(c)  title to, and all Intellectual Property Rights in, Analytical Data is and remains ActionHQ’s property.

 

4.3  Agent:

(a)  The Clinic acknowledges and agrees that to the extent Clinic Data contains Personal Information, in collecting, holding and processing that information through the Service and Related Services, ActionHQ is acting as an agent of the Clinic for the purposes of the Privacy Act 2020 and any other applicable privacy law.

(b)  The Clinic must obtain all necessary consents from the relevant individual to enable ActionHQ to collect, use, hold and process that information in accordance with this Agreement.

 

4.4  Backups of Data: While ActionHQ will take standard industry measures to back up all Clinic Data stored using the Service and Related Services, the Clinic agrees to keep a separate backup copy of all Clinic Data uploaded by it onto the Service.

 

4.5  International storage of Data: The Clinic agrees that ActionHQ may store Clinic Data (including any Personal Information) in secure servers in overseas territories and may access Clinic Data (including any Personal Information) in overseas territories and New Zealand from time to time.

 

4.6   Indemnity: The Clinic indemnifies ActionHQ against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by ActionHQ’s solicitors) and loss of any kind arising from any actual or alleged claim by a third party that any Clinic Data infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that the Clinic Data is Objectionable, incorrect or misleading.

 

 

5.1  Fees: The Sponsor will pay the Fees in accordance with the Sponsor Agreement entered into between ActionHQ and the Sponsor.

 

5.2  Sponsor’s costs: The Clinic will pay the Sponsor directly for prescription items ordered by the Clinic and fulfilled by ActionHQ through the Service and Related Services, in accordance with the separate agreement between the Clinic and the Sponsor.

 

 

6.1  Ownership:

(a)  Subject to clause 6.1(b), title to, and all Intellectual Property Rights in, the Service and Related Services, the Website, and all Underlying Systems is and remains the property of ActionHQ (and its licensors). The Clinic must not contest or dispute that ownership, or the validity of those Intellectual Property Rights.

(b)  Title to, and all Intellectual Property Rights in, the Clinic Data (as between the parties) remains the property of the Clinic. The Clinic grants ActionHQ a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate the Clinic Data for any purpose in connection with the exercise of its rights and performance of its obligations in accordance with this Agreement.

 

6.2  Know-how: To the extent not owned by ActionHQ, the Clinic grants ActionHQ a royalty-free, transferable, irrevocable and perpetual licence to use for ActionHQ’s own business purposes any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by ActionHQ in the provision of the Service and Related Services.

 

6.3  Feedback: If the Clinic provides ActionHQ with ideas, comments or suggestions relating to the Service and Related Services or Underlying Systems (together feedback):

(a)  All intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by ActionHQ; and

(b)  ActionHQ may use or disclose the feedback for any purpose.

 

6.4 Third-party sites and material: The Clinic acknowledges that the Service may link to third-party websites or feeds that are connected or relevant to the Service. Any link from the Service does not imply any ActionHQ endorsement, approval or recommendation of, or responsibility for, those websites or feeds or their content or operators. To the maximum extent permitted by law, ActionHQ excludes all responsibility or liability for those websites or feeds.

 

6.5 Third-party Intellectual Property Rights indemnity:

(a)  ActionHQ indemnifies the Clinic against any claim or proceeding brought against the Clinic to the extent that the claim or proceeding alleges that the Clinic’s use of the Service in accordance with this Agreement constitutes an infringement of a third party’s Intellectual Property Rights (IP Claim). The indemnity is subject to the Clinic:

(i)  promptly notifying ActionHQ in writing of the IP Claim;

(ii)  making no admission of liability and not otherwise prejudicing or settling the IP Claim, without ActionHQ’s prior written consent; and

(iii)  giving ActionHQ complete authority and information required for ActionHQ to conduct and/or settle the negotiations and litigation relating to the IP Claim. The costs incurred or recovered are for ActionHQ’s account.

(b)  The indemnity in clause 6.5(a) does not apply to the extent that an IP Claim arises from or in connection with:

(i)  the Clinic’s breach of this Agreement;

(ii)  use of the Service in a manner or for a purpose not reasonably contemplated by this Agreement or otherwise not authorised in writing by ActionHQ; or

(iii)  any third-party data or any Clinic Data.

(c)  If at any time an IP Claim is made, or in ActionHQ’s reasonable opinion is likely to be made, then in defence or settlement of the IP Claim, ActionHQ may (at ActionHQ’s option):

(i)  obtain for the Clinic the right to continue using the items that are the subject of the IP Claim; or

(ii)  modify, re-perform or replace the items that are the subject of the IP Claim so they become non-infringing.

 

 

7.1  Security: Each party must, unless it has the prior written consent of the other party: 

(a)  keep confidential at all times the Confidential Information of the other party;

(b)  effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorised access or use; and

(c)  disclose the other party’s Confidential Information to its personnel or professional advisors on a need-to-know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s Confidential Information is aware of, and complies with, the provisions of clauses 7.1(a) and 7.1(b).

 

7.2  Permitted disclosure: The obligation of confidentiality in clause 7.1 does not apply to any disclosure or use of Confidential Information:

(a)  for the purpose of performing this Agreement or exercising a party’s rights under this Agreement;

(b)  required by law (including under the rules of any stock exchange);

(c)  which is publicly available through no fault of the recipient of the Confidential Information or its personnel;

(d)  which was rightfully received by a party to this Agreement from a third party without restriction and without breach of any obligation of confidentiality; or

(e)  by ActionHQ if required as part of a bona fide sale of its business (assets or shares, whether in whole or in part) to a third party, provided that ActionHQ enters into a confidentiality agreement with the third party on terms no less restrictive than this clause 7.

 

7.3  No Sponsor disclosure: For the sake of clarity, and notwithstanding the permitted disclosures set out in clause 7.2, the obligation of confidentiality in clause 7.1 expressly prevents ActionHQ from disclosing Clinic Data, including Personal Information in relation to End Customers, to a Sponsor.

 

 

8.1  Mutual warranties: Each party warrants that it has full power and authority to enter into and perform its obligations under this Agreement which, when signed, will constitute binding obligations on the warranting party.

 

8.2  No implied warranties: To the maximum extent permitted by law:

(a)  ActionHQ’s warranties are limited to those set out in this Agreement, and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise (including any warranty under Part 3 of the Contract and Commercial Law Act 2017) are expressly excluded and, to the extent that they cannot be excluded, liability for them is limited to NZD1,000.00; and

(b)  ActionHQ makes no representation concerning the quality of the Service and Related Services and does not promise that the Service and Related Services will:

(i)  meet the Clinic’s requirements or be suitable for a particular purpose, including that the use of the Service and Related Services will fulfil or meet any statutory role or responsibility of the Clinic; or

(ii)  be secure, free of viruses or other harmful code, uninterrupted or error-free.

 

8.3  Consumer Guarantees Act: The Clinic agrees and represents that it is acquiring the Service and Related Services, and entering this Agreement, for the purposes of trade. The parties agree that:

(a)  to the maximum extent permissible by law, the Consumer Guarantees Act 1993 and any other applicable consumer protection legislation does not apply to the supply of the Service and Related Services or this Agreement; and

(b)  it is fair and reasonable that the parties are bound by this clause 8.3.

 

8.4  Limitation of remedies: Where legislation or rule of law implies into this Agreement a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in this Agreement. However, the liability of ActionHQ for any breach of that condition or warranty is limited, at ActionHQ’s option, to:

(a)  supplying the Service and Related Services again; and/or

(b)  paying the costs of having the Service and Related Services supplied again.

 

 

9.1  Maximum liability: The maximum aggregate liability of ActionHQ under or in connection with this Agreement or relating to the Service and Related Services, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not in any Year exceed an amount equal to the Fees paid by the Sponsor in accordance with the Sponsor Agreement in relation to the Clinic’s obligations under this Agreement in the previous Year (which in the first Year is deemed to be the total Fees paid by the Sponsor from the Start Date to the date of the first event giving rise to liability). 

 

9.2  Unrecoverable loss: Neither party is liable to the other under or in connection with this Agreement or the Service and Related Services for any:

(a)  loss of profit, revenue, savings, business, use, data (including Clinic Data), and/or goodwill; or 

(b)  consequential, indirect, incidental or special damage or loss of any kind.

 

9.3  Unlimited liability:

(a)  Clauses 9.1 and 9.2 do not apply to limit ActionHQ’s liability: 

(i)  under the indemnity in clause 6.5(a); or

(ii)  under or in connection with this Agreement for:

 

A  personal injury or death;

B  fraud or wilful misconduct; or

C  a breach of clause 7.

(b)  Clause 9.2 does not apply to limit the Clinic’s liability: 

(i)  under the indemnity in clause 4.6; or

(ii)  for those matters stated in clause 9.3(a)(ii).

 

9.4  No liability for the other’s failure: Neither party will be responsible, liable, or held to be in breach of this Agreement for any failure to perform its obligations under this Agreement or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under this Agreement, or by the negligence or misconduct of the other party or its personnel.

 

9.5  Mitigation: Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with this Agreement.

 

 

10.1  Duration: Unless terminated under this clause 10, this Agreement: 

(a)  starts on the Start Date and ends on the End Date; but

(b)  continues for successive terms of 12 months from the Start Date unless a party gives at least 3 months’ notice that this Agreement will terminate on the expiry of the then-current term.

 

10.2 No-fault termination: Either party may terminate this Agreement on the anniversary of the Start Date by giving at least 3 months’ notice prior to that anniversary date. 

 

10.3  Other termination rights:

(a)  Either party may, by notice to the other party, immediately terminate this Agreement if the other party:

(i)  breaches any material provision of this Agreement and the breach is not:

 

A  remedied within 10 days of the receipt of a notice from the first party requiring it to remedy the breach; or

B  capable of being remedied;

 

(ii)  becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason; or

(iii)  is unable to perform a material obligation under this Agreement for 90 days or more due to Force Majeure.

(b)  If the remedies in clause 6.5(c) are exhausted without remedying or settling the IP Claim, ActionHQ may, by notice to the Clinic, immediately terminate this Agreement.

 

10.4  Consequences of termination or expiry:

(a)  Termination or expiry of this Agreement does not affect either party’s rights and obligations that accrued before that termination or expiry.

(b)  Except to the extent that a party has ongoing rights to use Confidential Information, at the other party’s request following termination or expiry of this Agreement and subject to clause 10.4(c), a party must promptly return to the other party or destroy all Confidential Information of the other party that is in the first party’s possession or control.

(c)  At any time prior to one month after the date of termination or expiry, the Clinic may request:

(i)  a copy of any Clinic Data stored using the Service, provided that the Clinic pays ActionHQ’s reasonable costs of providing that copy. On receipt of that request, ActionHQ must provide a copy of the Clinic Data in a common electronic form. ActionHQ does not warrant that the format of the Clinic Data will be compatible with any software; and/or

(ii)  deletion of the Clinic Data stored using the Service, in which case ActionHQ must use reasonable efforts to promptly delete that Clinic Data.

To avoid doubt, ActionHQ is not required to comply with clause 10.4(c)(i) to the extent that the Clinic previously requested deletion of the Data.

 

10.5  Obligations continuing: Clauses which, by their nature, are intended to survive termination or expiry of this Agreement, including but not limited to clauses 4.6, 6, 7, 9, 10.4, 10.5 and 11, continue in force.

 

10.6  Rights to restrict: Without limiting any other right or remedy available to ActionHQ, ActionHQ may restrict or suspend the Clinic’s access to the Service and Related Services and/or delete, edit or remove the relevant Clinic Data if ActionHQ considers that the Clinic (including any of its personnel) has:

(a)  undermined, or attempted to undermine, the security or integrity of the Service or any Underlying Systems;

(b)  used, or attempted to use, the Service: 

(i)  for improper purposes; or

(ii)  in a manner, other than for normal operational purposes, that materially reduces the operational performance of the Service;

(c)  transmitted, inputted or stored any Clinic Data that breaches or may breach this Agreement or any third party right (including Intellectual Property Rights and privacy rights), or that is or may be Objectionable, incorrect or misleading; or

(d)  otherwise materially breached this Agreement.

 

10.7  Process:

(a)  ActionHQ must notify the Clinic where it restricts or suspends the Clinic’s access, or deletes, edits or removes Clinic Data, under clause 10.6.

(b)  Clause 10.4(c)(i) will not apply to the extent that it relates to Clinic Data deleted or removed under clause 10.6.

 

 

11.1  Good faith negotiations: Before taking any court action, a party must use best efforts to resolve any dispute under, or in connection with, this Agreement through good faith negotiations.

 

11.2  Mediation: If any dispute cannot be resolved by negotiation between the parties within ten (10) days or such further period as the parties agree is appropriate, then the matter shall be referred for mediation.

 

11.3  The mediation procedure is as follows:-

(a)  any party may start mediation by serving a mediation notice on the other party;

(b)  the mediation notice must state that a dispute has arisen and identify the substance of the dispute;

(c)  the parties must jointly request the appointment of a mediator. If the parties fail to agree on the appointment within seven (7) days of service of the mediation notice, any of the parties may apply to the executive director for the time being of the Resolution Institute or the nominee of the executive director to appoint a mediator;

(d)  once the mediator has accepted the appointment the parties must comply with the mediator’s instructions; and

(e)  the parties agree that it will be a term of the engagement of the mediator that they release the mediator from any court proceedings relating to this Agreement or the mediation.

 

11.4  Obligations continue: Each party must, to the extent possible, continue to perform its obligations under this Agreement even if there is a dispute.

 

11.5  Right to seek relief: This clause 11 does not affect either party’s right to seek urgent interlocutory and/or injunctive relief.

 

 

12.1  Force Majeure: Neither party is liable to the other for any failure to perform its obligations under this Agreement to the extent caused by Force Majeure, provided that the affected party:

(a)  immediately notifies the other party and provides full information about the Force Majeure;

(b)  uses best efforts to overcome the Force Majeure; and

(c)  continues to perform its obligations to the extent practicable.

 

12.2  Rights of third parties: No person other than ActionHQ and the Clinic has any right to a benefit under, or to enforce this Agreement.

 

12.3  Waiver: To waive a right under this Agreement, that waiver must be in writing and signed by the waiving party.

 

12.4  Independent contractor: Subject to clause 4.3, ActionHQ is an independent contractor of the Clinic, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under this Agreement.

 

12.5  Notices: A notice given by a party under this Agreement must be delivered to the other party via email using the email address set out in Schedule 1 or otherwise notified by the other party for this purpose. If the notice is a notice of termination, a copy of that email must be immediately delivered (by hand or courier) to the Chief Executive or equivalent officer of the other party at the other party’s last known physical address.

 

12.6  Severability:

(a)  If any provision of this Agreement is, or becomes, illegal, unenforceable or invalid, the relevant provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity.

(b)  If modification under clause 12.6(a) is not possible, the provision must be treated for all purposes as severed from this Agreement without affecting the legality, enforceability or validity of the remaining provisions of this Agreement.

 

12.7  Variation: Any variation to this Agreement must be in writing and signed by both parties.

 

12.8  Entire Agreement: This Agreement sets out everything agreed by the parties relating to the Service and Related Services, and supersedes and cancels anything discussed, exchanged or agreed prior to the Start Date. The parties have not relied on any representation, warranty or agreement relating to the subject matter of this Agreement that is not expressly set out in this Agreement, and no such representation, warranty or agreement has any effect from the Start Date. Without limiting the previous sentence, the parties agree to contract out of sections 9, 12A and 13 of the Fair Trading Act 1986, and that it is fair and reasonable that the parties are bound by this clause 12.8.

 

12.9  Subcontracting and assignment:

(a)  The Clinic may not assign, novate, subcontract or transfer any right or obligation under this Agreement without the prior written consent of ActionHQ, that consent not to be unreasonably withheld. The Clinic remains liable for its obligations under this Agreement despite any approved assignment, subcontracting or transfer. Any assignment, novation, subcontracting or transfer must be in writing.

(b)  Any change of control of the Clinic is deemed to be an assignment for which ActionHQ’s prior written consent is required under clause 12.9(a). In this clause change of control means any transfer of shares or other arrangement affecting the Clinic or any member of its group which results in a change in the effective control of the Clinic.

 

12.10  Law: This Agreement is governed by, and must be interpreted in accordance with, the laws of New Zealand. Each party submits to the non-exclusive jurisdiction of the Courts of New Zealand in relation to any dispute connected with this Agreement.

 

12.11  Counterparts: This Agreement may be signed in counterparts, each of which constitutes an original and all of which constitute the same agreement. A party may enter this Agreement by signing and emailing a counterpart copy to the other party.