TERMS & CONDITIONS

  

SMILE MENTOR SERVICE AGREEMENT Date: 15 February 2010

By purchasing services from Shepperson Dental Limited trading as Smile Mentor (Smile Mentor) you agree to be bound by this Agreement.  Smile Mentor agrees that it will provide the Services to You on the terms set out in this Agreement.

Part A:  Definitions: In this Agreement:  Agreement means this service agreement between You and Smile Mentor including Parts A, B and C.  Disbursements means any amount You must pay to Smile Mentor under clause 7 of Part C Fee means the fee which is payable for the Services You have purchased from Smile Mentor’s website (www.smilementor.com) on the date of Your order subject to variation in accordance with this Agreement Services means the services You have purchased from Smile Mentor’s website (www.smilementor.com) by submitting your order or through negotiation with Smile Mentor directly.  Term means a term commencing on the date you submit your order to Smile Mentor and continuing until terminated in accordance with Part C of this Agreement.  You/Your means the named customer on the electronic order confirmation form submitted to Smile Mentor from www.smilementor.com.

Part B:  Fee Payment Details and Timing of Payments:  You must pay the Fee as follows:  In one lump sum on submission of an order through Smile Mentor’s website    www.smilementor.com In monthly instalments of $                       payable on the            day of each month during the Term where customised fees for Reactivation Consulting apply. 50% Upon signing and returning this agreement where customised fees for In-office Consulting or Reactivation Consulting apply.            50%  48 hours prior to the day of workshop where customised fees for In–office Consultancy or Reactivation Consultancy apply.  All payments must be made in NZ$ and should be made by credit card to:  Smile Mentor,  PO Box 109-469, Newmarket, Auckland 1149, New Zealand  or by Direct Credit  to:  ANZ Account No: 010403 - 0093942-000  Shepperson Dental T/A Smile Mentor.

  Part C: General Terms 

1.             Smile Mentor shall perform the Services during the Term.

2.             In providing the Services, Smile Mentor shall exercise the degree of skill, care and diligence normally expected of a competent professional providing the Services.

3.             You must provide to Smile Mentor, free of cost and as soon as practicable following any request from Smile Mentor, all information in Your power to obtain which may pertain to the Services.  Smile Mentor shall not, without Your prior consent, use information You provide for purposes unrelated to the Services. In providing the information to Smile Mentor it shall be Your responsibility to ensure compliance with any privacy legislation and/or professional codes of conduct and You shall identify any proprietary rights that any other person may have in any information provided.  If You fail to provide or delay providing any information Smile Mentor requests, Smile Mentor’s obligations under these terms of engagement may, at Smile Mentor’s option, be suspended until the information is provided but You shall remain liable for payment of the Fee during any period that the Services are suspended.

4.             If any of the Services include patient observations, You shall establish the patient’s consent to observation during any transaction, interview, examination or clinical procedure.  Where the observation includes acquisition of digital information, such as photos or video, You must obtain written consent from the patient to participate. Smile Mentor shall not be liable for any breach of patient confidentiality, privacy or consent.

5.             Where this agreement has been entered by an agent (or a person purporting to act as agent) on Your behalf, You and the agent shall be jointly and severally liable for all of Your liabilities to Smile Mentor under this Agreement.

6.             You shall pay the Fee to Smile Mentor at the times and dates specified in Part B.  Smile Mentor will supply a tax invoice/s to You prior to the due date for payment.  Late payment shall constitute a default and Smile Mentor shall have the right, in its absolute discretion, to suspend Services until the payment has been made and/or charge penalty interest at a rate of 1% per month on any unpaid portion of the Fee or disbursements. 

7.             If reasonably required for performance of the Services, Smile Mentor may purchase incidental goods and/or services (“disbursements”).  You shall pay the cost of obtaining any disbursements.  Smile Mentor shall maintain records which clearly identify disbursements incurred.

8.             Smile Mentor’s liability will, where permitted by law, be excluded or, if not able to be excluded, only apply to the minimum extent required by law.  You confirm that you are acquiring the Services for the purposes of Your business and that the warranties and guarantees contained in the Consumer Guarantees Act 1993 do not apply.

9.             To the maximum extent permitted by law and:

a.             Without limiting clause 9(b), Smile Mentor’s maximum liability for all claims by You against Smile Mentor whether in contract, tort (including negligence), breach of statutory duty or otherwise (including costs) arising directly or indirectly out of the supply of goods and/or services by Smile Mentor to You is limited to the total amount of the Fee paid (excluding GST) by You to Smile Mentor; and

b.            Without limiting clause 9(a), Smile Mentor is not liable (whether in contract, tort (including negligence), breach of statutory duty or otherwise) for any indirect or consequential or economic loss, cost or damage (including, without limitation, loss or reduction of business or profits) You suffer or incur arising directly or indirectly from the Services or any other act or omission by Smile Mentor.

10.          Notwithstanding clause 9, Smile Mentor shall not be considered liable for any loss or damage resulting from any occurrence unless a claim is formally made within 30 days from completion of Services.

11.          Smile Mentor shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond Smile Mentor’s control. 

12.          You may request variations to the Services in writing or may request Smile Mentor to submit proposals for variation to the Services but Smile Mentor shall not be under any obligation to accept or agree to variations to the Services.

13.          Smile Mentor may vary the Fee at any time by written notice to You.

14.          You may terminate this Agreement by written notice to Smile Mentor which shall immediately make arrangements to stop the Services and minimise further expenditure.  Fees paid up to the time of termination will be non-refundable and you shall be liable for any Fee payable (including any portion of the Fee accrued but not yet invoiced) up to the date of termination.

15.          Smile Mentor may terminate this Agreement by written notice to You at any time for any reason.  If Smile Mentor terminates this Agreement as a consequence of your failure to meet your obligations under this Agreement, You shall be liable for any Fee payable (including any portion of the Fee accrued but not yet invoiced) up to the date of termination.  If Smile Mentor terminates this agreement for any other reason, it shall refund to You any Fees You have paid up to the date of termination.  Termination shall not prejudice or affect the accrued rights or claims and liabilities of either party.

16.          Smile Mentor shall retain copyright of all intellectual property prepared by Smile Mentor and provided to You when performing the Services.  You shall only be entitled to use such intellectual property with Smile Mentor’s consent. 

17.          Smile Mentor shall own any information about You and Your business it collects when providing the Services provided that ownership of this information shall automatically transfer to You when the Fee is paid in full. 

18.          You may only reproduce images, drawings, specifications and other documents in which Smile Mentor has copyright with Smile Mentor’s consent.  Smile Mentor may revoke any consent to use such information at any time.

19.          Smile Mentor agrees that all information it obtains relating to Your business, staff and patients when providing the Services shall be deemed confidential and shall not be disclosed to any other person unless previously authorized by You in writing except only for such information known to Smile Mentor prior to this Agreement, subsequently learned by Smile Mentor from sources other than You or otherwise publicly available.

20.          Disputes shall first be referred to mediation for settlement.  If the dispute is not resolved by mediation the parties will refer the dispute to a single arbitrator.  The single arbitrator will be chosen by the parties or, if they cannot agree, by the President of the New Zealand Law Society, or the President's nominee.  The arbitration will be conducted in accordance with the Rules in Schedules 1 and 2 of the Arbitration Act 1996.

21.          This Agreement is deemed to be a contract made in New Zealand and the construction, validity and performance of this Agreement is governed by New Zealand law. 

22.          You agree that the New Zealand courts have exclusive jurisdiction to entertain all claims and actions arising out of this Agreement.

23.          This Agreement represents the entire agreement between the parties regarding the Services.  All prior relevant agreements, correspondence and undertakings made between the parties are void.

24.          You cannot transfer, assign, create any encumbrance over or deal in any manner with Your rights and obligations under this Agreement without first obtaining Smile Mentor’s written consent.

25.          The undertakings and agreements given in this Agreement will not merge on termination but will remain enforceable despite any rule of law or in equity to the contrary.

26.          The failure of a party at any time to:

a.             enforce or insist upon the strict observance of any provision of or any right in respect of or the remedying of any breach or non-performance of this Agreement; or

b.            to exercise any election or discretion under this Agreement;

does not operate as a waiver of those matters or of any of the rights of such party under this Agreement.

27.          Smile Mentor is an independent contractor and agrees that it will not, except as expressly authorised by this Agreement:

a.             be Your agent, partner, employee or other business associate;

b.            have authority to pledge Your credit;

c.             enter into any order, agreement or arrangement on Your behalf;

d.            make any express or implied representation or statement on Your behalf or in relation to Your products or services;

e.             hold itself out to have any relationship, authority or right which is excluded by this clause.

This clause will not apply to any authority or right expressly given to Smile Mentor by this Agreement.

28.          Where Smile Mentor corresponds with you using electronic communication (as defined in the Electronic Transactions Act 2002 ("the ETA")), the rules set out in the ETA will apply except that electronic communications sent to Smile Mentor will be deemed to be received at the time they come to Smile Mentor’s attention.

29.          The parties agree that the rule of construction known as the contra proferentum rule does not apply to this agreement.