Background

A. The parties have agreed that the Partner may use the ezyVet APIs to integrate its application with ezyVet’s Software, and access data from, and/or (where permitted by ezyVet) input data into, the ezyVet Software on the terms and conditions of this Agreement.

1. Definitions and Interpretation

1.1 In this Agreement, unless it is specified otherwise, or the context requires otherwise:

Agreement means the ezyVet Private API Integration Agreement entered into between the Partner (subscriber) and ezyVet;

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

Commencement Date means the commencement date set out in Item 1 of the Specific Terms;

Confidential Information means any and all information relating to either ezyVet, the Partner and/or any User that is disclosed to a party (the Receiving Party) in connection with this Agreement as is marked or indicated by the disclosing party as confidential or which the Receiving Party ought reasonably to consider confidential by its designation or nature and will include for the purposes of this Agreement the terms of this Agreement or the fact that an agreement between the parties may be in place, but will not include information which:

(a) is or becomes generally available to the public (other than as a result of any breach by the Receiving Party of its confidentiality obligations under this Agreement);

(b) was, is, or becomes, available to the Receiving Party on a non-confidential basis from a person who is not bound by an obligation of confidence to the disclosing party or otherwise prohibited from disclosing the information to the Receiving Party;

(c) is independently developed by the Receiving Party without use or reference to the Confidential Information of the other party; or

(d) the parties agree in writing is not confidential or may be disclosed;

Disengagement Period means the period specified in Item 3 of the Specific Terms;

Dispute has the meaning given to that term in clause 13.4(a);

ezyVet APIs means the ezyVet application programming interfaces and other tools made available to the Partner by ezyVet that allow the Partner to integrate its Partner Application with the ezyVet Software;

ezyVet Data means any data or information (in whatever form that information may exist) relating to ezyVet, ezyVet’s related companies or any of ezyVet’s or its related companies’ operations, facilities, customers, personnel and assets;

ezyVet MSA means the “ezyVet Corporate Master Services Agreement” between ezyVet and the Partner entered into on or about the date of this Agreement;

ezyVet Software means ezyVet’s veterinary practice management software and related platforms provided on a software-as-a-service basis, and all future versions and derivative products;

Fees means the fees (if any) payable by the Partner for use of the ezyVet APIs as specified in Schedule 2;

Force Majeure means a circumstance that is beyond the reasonable control of a party, including acts, omissions, systems, networks, equipment or data of the other party or the acts, omissions, systems, networks, equipment or data of any third party (including, without limitation, the Internet or any telecommunications or utilities network, service or equipment), acts of God, natural disaster, lightning strikes, earthquakes, floods, storms, explosions, fire, riot, terrorism, acts of war, malicious damage, strikes, blockades and analogous industrial actions;

GST means applicable goods and services tax (or equivalent tax), if any;

Infringing Item has the meaning given to that term in clause 10.1;

Initial Term means the period specified in Item 2 of the Specific Terms;

Intellectual Property Rights means all brand names, trade marks, service marks, trade names, logos, copyrights, patents, licences, designs and rights in a design, look and feel, know-how, trade secrets, inventions, technical data, concepts, ideas, moral rights and all other similar property, whether or not registered, in the course of being registered or unregistered and any analogous rights worldwide;

IP Claim has the meaning given to that term in clause 10.1;

Online API Documentation means the documentation made available in respect of the ezyVet APIs at https://apisandbox.trial.ezyve...;

Partner Application means the software and other technology offered to customers by the Partner described more fully in Item 4 of the Specific Terms;

Partner Data means any data or information (in whatever form that information may exist) relating to the Partner, the Partner’s related companies (if any) or the Partner’s operations, facilities, customers, personnel and assets;

Partner Privileges means the additional privileges granted to the Partner by ezyVet as set out in item 5 of the Specific Terms;

Practice means each veterinary clinic, practice, location or separate business who has subscribed for a licence to use the ezyVet Software and/or the Partner Application;

Relevant Month has the meaning given to that term in clause 6.1(a);

Renewal Term has the meaning set out in clause 7.2;

Required Partner Reports means the reports specified in Item 6 of the Specific Terms to be provided by the Partner to ezyVet in accordance with clause 6.1(a);

Specific Terms means the terms set out in Schedule 1;

Term means the Initial Term and each Renewal Term;

User means end-users of the ezyVet Software and/or the Partner Application; and

User Data means any data or information (in whatever form that information may exist) relating to a User or Practice including without limitation, information relating to that User’s and/or Practice’s clients, operations, facilities, customers or personnel (as applicable).

1.2 In this Agreement, unless the context requires otherwise:

(a) headings are for convenience only and do not affect the interpretation of this Agreement;

(b) person includes a corporation or any other entity, unincorporated association or body;

(c) including and similar expressions are not used as, nor are intended to be interpreted as, words of limitation;

(d) any reference to a party to this Agreement includes that party’s successors and, in the case of Partner, permitted assigns or in the case of ezyVet, assigns;

(e) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings; and

(f) the singular includes the plural, and vice versa.

2. Licence

2.1 ezyVet Licences: In consideration for the Fees (if any), ezyVet grants to the Partner a non-exclusive, non-transferable, revocable, limited licence for the Term to:

(a) use the ezyVet APIs to enable the Partner Application to interact with the ezyVet Software; and

(b) retrieve and use User Data stored with ezyVet Software,

in each case on and subject to the terms of this Agreement and provided that nothing in this clause 2.1 permits Partner to retrieve or use any User Data unless the Partner has the relevant User’s prior written approval to retrieve and use such User Data.

2.2 Partner Licences: The Partner grants to ezyVet a royalty-free, non-exclusive, non-transferable licence to:

(a) link to and direct ezyVet Users to the Partner Application;

(b) use, store and maintain any write-back data that the Partner passes through the ezyVet API to the extent necessary to update any User Data held by ezyVet in connection with ezyVet’s User services;

(c) refer to the Partner in any marketing or publicity as a licensee of the ezyVet API; and

(d) publish details relating to the Partner Application, and the Partner’s name and branding, on ezyVet’s websites, promotional materials and press releases,

in each case for the Term and any Disengagement Period and on and subject to the terms of this Agreement, provided that ezyVet’s licence to any write-back data granted in accordance with clause 2.2(b) shall continue beyond the Term and any Disengagement Period.

2.3 Updates and Modifications: ezyVet may, at its sole discretion, modify the ezyVet APIs or release subsequent versions of the ezyVet APIs. The Partner is responsible for ensuring the Partner Application integrates with any modified or updated version of the ezyVet APIs. The Partner must review the Online API Documentation (as updated by ezyVet from time to time) to ensure that the Partner Application continues to integrate with the ezyVet APIs as updated and modified from time to time. Without limiting the Partner's obligations under this clause 2.3, ezyVet shall use its reasonable endeavors to notify the Partner of any updates to the ezyVet APIs or the Online API Documentation as soon as practicable.

3. Use of ezyVet APIs

3.1 Acknowledgement: The Partner acknowledges and agrees that it may not access, use, transfer, disclose or share any User Data accessed via the ezyVet APIs other than with the relevant User prior written consent. The Partner indemnifies ezyVet for and against any and all loss, damage, liability, cost and/or expense that ezyVet sustains or incurs arising out of or in connection with the Partner’s use or collection of any User Data accessed through the ezyVet API in breach of this clause 3.1.

3.2 Restrictions: The Partner will not, and shall procure that its officers, employees and agents do not:

(a) copy, modify, translate (in each case other than as permitted under this Agreement), reverse engineer, decompile or (as applicable) otherwise attempt to extract the source code of, the ezyVet Software, the ezyVet APIs, the ezyVet Data, any User Data or any part of those items;

(b) use the ezyVet APIs to connect to any application other than the Partner Application, including any application that constitutes, promotes or is used in connection with spyware, adware, other malicious programs or code;

(c) use the ezyVet APIs, the ezyVet Data or any User Data in any manner or for any purpose that violates any law or regulation, any right of any person, including but not limited to Intellectual Property Rights or rights of privacy;

(d) without limiting clause 3.1, share, sell or transfer any User Data to any third party (other than the relevant User(s)) without ezyVet’s express prior written consent;

(e) use the ezyVet APIs to carry out any benchmarking across multiple User accounts other than with ezyVet’s express prior written consent;

(f) replicate, in whole or in part, the "look and feel" of the ezyVet Software in the Partner Application or in any other Partner product or service;

(g) circumvent technological measures that prevent direct database access, or manufacture tools or products to that effect;

(h) build conversion functionality that converts User Data from the ezyVet Software for use on a competing product or service; or

(i) use ezyVet’s name, branding, trademarks or logos without the prior written consent from ezyVet.

3.3 Other Partner Obligations: Partner will:

(a) ensure that it includes its own end-user licence agreement and privacy policy for Users to agree to when they access the Partner Application;

(b) in performing its obligations under this Agreement, comply with all applicable laws in respect of privacy and data security including as applicable, EU General Data Protection Regulation (GDPR);

(c) without limiting clause 5, use reasonable endeavours to promote the use of the ezyVet Software on the Partner’s website and in other marketing materials;

(d) at ezyVet’s request, provide appropriate training for ezyVet personnel on the use and operation of the Partner Application (as the functionality of the Partner Application may change from time to time) to enable ezyVet to assist its Users with their use of the Partner Application, as integrated with the ezyVet Software; and

(e) support, manage and maintain all functions of the Partner Application for the Term and any Exit Period (Support Services). Such Support Services will ensure that the Partner Application integrates seamlessly with the ezyVet Software (including through the ezyVet APIs) and will include the provision of fault resolution and updates to the Partner Application from time to time.

3.4 Management of security breach: If the Partner becomes aware of, or has reason to suspect the existence of, any incident involving unauthorized access to the ezyVet APIs, ezyVet Software, any ezyVet Data or User Data through Partner Application, the Partner will:

(a) promptly notify ezyVet and take all steps reasonably available to the Partner to identify the individuals involved, and to inform ezyVet of their identity; and

(b) promptly notify ezyVet as to whether any incident involved the unauthorized disclosure of "personal information" (as that term is defined in the Privacy Act 1993 (Privacy Act)) and take all steps reasonably available to the Partner to cure such unauthorized access through the Partner Application and comply with any reasonable request made by ezyVet in connection with the management of such unauthorized disclosure.

3.5 Restrictions on API Calls: The Partner acknowledges and agrees that the number of API calls to the ezyVet Software (using the ezyVet APIs) that the Partner is permitted to make during any given period is limited as set out in the “Request Throttling” section of the Online API Documentation.

3.6 Right to track: ezyVet may track the Partner’s use of the ezyVet APIs and access and use of any User Data to identify any use of the ezyVet APIs and any User Data outside of the permitted limits set out in this Agreement.

3.7 ezyVet right to audit:

(a) Subject to clause 3.7(c), at ezyVet's written request from time to time, the Partner shall permit and arrange for ezyVet or ezyVet’s authorized third party representative (Auditor) to have access, on reasonable prior written notice, to all premises, systems or records under the control of the Partner, and there to:

(i) examine hardware, software and data and any other records, documents, processes or other relevant information relating to this Agreement;

(ii) take copies of the material referred to in (a) above; and

(iii) ask for (and the Partner shall ensure that the Auditor receives) adequate explanations from the Partner and/or its personnel, in relation to the material in (a) above and/or the Partner’s activities in connection with this Agreement,

in each case solely to the extent reasonably required by the Auditor for the purpose of:

(iv) auditing the accuracy of the Partner's invoices under this Agreement; and/or

(v) otherwise allowing the Auditor to satisfy itself that the Partner is complying with its obligations under this Agreement (including in respect of the Partner's access and use of the ezyVet APIs).

(b) ezyVet will be responsible for all fees and expenses of its Auditor in relation to any inspection, copying or access undertaken by the Auditor, provided that if it is discovered or verified during the course of any audit that the Partner has been undercharged by ezyVet as a result of inaccuracies in the Required Partner Reports or the Partner’s failure to provide the Required Partner Reports (a Fee Deficit), then all reasonable costs incurred by ezyVet in connection with the audit will be borne by the Partner, and the Partner will immediately (i) reimburse ezyVet such audit cots and (ii) pay to ezyVet on demand the amount of any Fee Deficit.

(c) Unless any audit is required by ezyVet as a result of ezyVet being notified or made aware of any breach of this Agreement by the Partner, ezyVet shall not request an audit be carried out in accordance with this clause 3.7 more than once every 12 calendar months. The Partner may require that ezyVet or the Auditor be appropriately supervised by the Partner's personnel during any audit.

4. Restriction on Third Party Access

4.1 Restriction: The Partner is not permitted to allow any third-party access to the ezyVet APIs or the ezyVet Software other than with ezyVet’s express prior written consent.

4.2 Indemnity for unauthorized third-party access: The Partner indemnifies ezyVet for and against any and all loss, damage, liability, cost and/or expense that ezyVet sustains or incurs arising out of or in connection with any use of, or access to, the ezyVet APIs, the ezyVet Software, any ezyVet Data or any User Data by any third party to the extent the Partner has facilitated or enabled that third party’s access.

5. Consultation and Publicity

5.1 Publicity: Except as set out in this Agreement, the Partner may not make any public statements about this Agreement or the integration of the Partner Application with the ezyVet Software without ezyVet’s prior written consent.

5.2 Good faith: Each party will act in good faith towards the other party in all communications with its respective Users or otherwise in the public domain (including by maintaining professional opinions of one another and its products). Each party will not intentionally harm the reputation of the other party or otherwise bring the other party’s brand into disrepute.

5.3 Conduct: The Partner will avoid deceptive, misleading or unethical practices that are, or might be, detrimental to ezyVet, the ezyVet Software, or the public, and will not publish or employ, or co-operate in the publication or employment of, any false, misleading or deceptive advertising material or other representations with regard to the Partner, ezyVet, the Partner Application or the ezyVet Software.

6. Fees and Payment

6.1 Invoicing and payment:

(a) No later than five Business Days following the last day of each month (the Relevant Month) the Partner shall issue to ezyVet the Required Partner Reports (if any).

(b) No later than five Business Days following receipt of the Required Partner Reports for the Relevant Month (or if no Required Partner Reports are required to be issued, five Business Days following the last day of the Relevant Month), ezyVet will reconcile the relevant reporting and either:

(i) issue the Partner an invoice for the Fees for the Relevant Month; or

(ii) request clarification or further information in respect of the Required Partner Reports.

(c) The Partner will pay each invoice issued by ezyVet under this Agreement in accordance with the payment terms set out in the relevant invoice, or if no terms are set out, by the 20th of the month following the month of the invoice.

6.2 Default: If the Partner fails to pay any invoice when due then without prejudice to any other rights and remedies of ezyVet:

(a) ezyVet may, without liability to the Partner or any User:

(i) disable access to all or part of the ezyVet APIs and ezyVet will be under no obligation to provide access to the ezyVet APIs;

(ii) cease providing training or support to the Partner; and/or

(iii) suspend any of the Partner Privileges or other rights,

while the invoice(s) concerned remain unpaid; and/or

(b) interest will accrue on such due amounts at an annual rate equal to 2% over the then current base overdraft rate of ezyVet’s bankers calculated from the due date until the date the amount is paid in full.

6.3 Sales tax: All amounts and Fees stated or referred to in this Agreement are exclusive of sales tax (if any).

6.4 Fee increase: ezyVet may increase any of the Fees upon 60 days' prior written notice to the Partner.

7. Term and Termination

7.1 Initial Term: This Agreement will commence on the Commencement Date and will continue for the Initial Term, unless earlier terminated in accordance with this Agreement.

7.2 Renewal: This Agreement will automatically renew for further periods of six months each (each such period being a Renewal Term) at the end of the Initial Term or the then current Renewal Term, unless either party gives at least 90 days’ prior written notice to the other party to terminate this Agreement at the end of the Initial Term or the then current Renewal Term (as applicable).

7.3 Termination for cause: A party may terminate this Agreement with immediate effect on giving written notice to the other party if the other party:

(a) materially breaches this Agreement and:

(i) the material breach cannot be rectified; or

(ii) the material breach can be rectified but the defaulting party fails to remedy such breach within 10 Business Days of notice in writing of that breach; or

(b) becomes bankrupt, goes into liquidation or has a receiver, statutory manager or administrator appointed over any of its assets, becomes insolvent, ceases to carry on its business or makes any composition or arrangement with creditors.

7.4 ezyVet termination rights: ezyVet may terminate this Agreement:

(a) at any time without cause by giving the Partner 60 days’ prior written notice;

(b) with immediate effect on giving written notice to the Partner if:

(i) the Partner repeatedly fails to comply with its obligations under this Agreement, whether those obligations are minor or significant;

(i) the Partner has a conflict of interest that in ezyVet’s reasonable opinion is so material as to impact adversely on the Partner's performance of its obligations under this Agreement; or

(ii) the Partner's continued performance of this Agreement will cause ezyVet to be in breach of any applicable regulatory requirements or any other statute, regulation or by-law to which ezyVet is subject.

7.5 Consequences of termination or expiry: On expiry or termination of this Agreement:

(a) subject to paragraph (c) below, Partner will cease using the ezyVet APIs, the ezyVet Data or any User Data obtained via the ezyVet API, deactivate the Partner Application or otherwise remove its integration from the ezyVet Software;

(b) each party will, at each other party’s direction, either deliver to that other party, or destroy/delete, all copies of that other party’s Confidential Information in its possession or control; and

(c) unless otherwise specified by ezyVet, Partner will continue to supply any Partner Data and/or User Data in the Partner’s possession to the ezyVet Software during the Disengagement Period to the extent necessary to allow for a smooth transition for Users from the Partner Application to any other application that integrates with the ezyVet Software, on and subject to the terms and conditions of this Agreement.

7.6 Survival: Clauses 2.2(b), 3.8, 4, 5, 7.5, 8, 9, 10, 11, 12 and 13.5 survive expiry or termination of this Agreement. Termination of this Agreement will not affect any claim by either party against the other party arising out of any breach or failure under this Agreement prior to termination.

8. Confidentiality

8.1 Obligation: Each party will keep the other party's Confidential Information confidential and will not:

(a) use, copy or modify any of the other party’s Confidential Information except to the extent expressly permitted by this Agreement or as reasonably required for the party to exercise its rights or perform its obligations under this Agreement; or

(b) disclose the other party’s Confidential Information in whole or in part to any third party except as expressly permitted by clause 8.2.

8.2 Disclosure: Notwithstanding clause 8.1(b), a party (the Disclosing Party) may disclose the other party's Confidential Information where:

(a) the Disclosing Party has obtained the express prior written consent of the other party;

(b) the Disclosing Party discloses such information to its officers, employees, contractors or professional advisors (Representatives) who need to know for the proper purposes of their role, provided the Disclosing Party informs such Representatives of the confidential nature of that information and remains responsible at all times for its Representatives use of such information;

(c) the Disclosing Party is required to release the information by any statutory or regulatory obligation, or by any judicial or arbitration process provided that the parties meet in good faith to discuss and agree any reasonable restrictions on the scope of disclosure required as a result of the statutory or regulatory obligation; and/or

(d) the disclosure of information is reasonably required for the implementation of this Agreement.

9. Intellectual Property Rights

9.1 ezyVet IP: Partner acknowledges and agrees that all Intellectual Property Rights in the ezyVet APIs, the ezyVet Software and any ezyVet Data (including any modifications or adaptations of such) are the property of ezyVet or its licensors, as the case may be, and Partner will have no rights in or to the ezyVet APIs, the ezyVet Software or any ezyVet Data other than as expressly provided in this Agreement or the ezyVet MSA.

9.2 Partner IP: ezyVet acknowledges and agrees that all Intellectual Property Rights in the Partner Application and any Partner Data are the property of the Partner or its licensors. The Partner will have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Partner Application and any Partner Data.

9.3 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 9 according to its true intent.

9.4 Trademarks: Neither party shall use any trademark owned by the other party, except as expressly provided in this Agreement, without first obtaining the other party’s prior written consent.

10. IP Indemnity

10.1 IP Indemnity: Partner will indemnify ezyVet against all loss, damage, cost and expense arising from any claim or proceeding brought against ezyVet to the extent that the claim or proceeding is based on an allegation that ezyVet’s, or any ezyVet User’s, use of the Partner Application or any Partner Data in accordance with this Agreement (each an Infringing Item), infringes any third party’s Intellectual Property Rights (IP Claim).

10.2 Management of IP Claims:

(a) Partner will, upon becoming aware of any IP Claim or potential IP Claim, promptly notify ezyVet in writing of the IP Claim or potential IP Claim.

(b) In the event of an IP Claim:

(i) unless otherwise required by ezyVet, Partner will (at its own cost) promptly defend or settle the IP Claim, but in all cases will:

(A) consult with and keep ezyVet informed in relation to the IP Claim;

(B) obtain ezyVet's prior written approval to any proposed settlement of the IP Claim; and

(C) use its best endeavours to ensure that ezyVet's name and reputation are not adversely affected by any steps taken in relation to the IP Claim; and

(ii) the Partner will (at its own cost) take all necessary steps to minimise the detrimental impact of any IP Claim on ezyVet's use of the Infringing Item, including by:

(A) altering or replacing the relevant Infringing Item so as to avoid infringement (without affecting the functionality or performance (as applicable) of the Infringing Item); or

(B) obtaining the necessary rights for the Partner and ezyVet to use the Infringing Item without liability for such infringement.

ezyVet will co-operate with the Partner in defending or settling any IP Claim and will (at the Partner's cost) use reasonable endeavours to make its employees and agents available to give information, statements and evidence as the Partner may reasonably request provided that nothing in this clause 10.2 shall limit ezyVet's right to be separately represented in respect of any such IP Claim.

10.3 ezyVet Developments: The Partner acknowledges and agrees that ezyVet may independently create products or services that may be the same or similar to, or competing with, the Partner Application. Nothing in this Agreement will be construed as restricting or preventing ezyVet from creating and fully exploiting such products or services.

11. Warranties

11.1 Warranty: Each party warrants to the other party that it has the full power and authority to enter into this Agreement.

11.2 Exclusions: Except as expressly stated in this Agreement, all warranties, conditions and terms, whether express or implied by statute, common law or otherwise are hereby excluded to the extent permitted by law. Without limiting the effect of the preceding sentence, ezyVet does not warrant that the ezyVet Software, ezyVet APIs, any ezyVet Data or any User Data is accurate, complete, reliable, secure, useful or fit for purpose.

12. Limitation of Liability

12.1 Unrecoverable loss: Notwithstanding anything in this Agreement to the contrary, ezyVet will not be liable under the law of tort, contract or otherwise for any:

(a) loss suffered or incurred by Partner as a result of or in connection with Partner’s use of the ezyVet APIs, the ezyVet Software, any ezyVet Data or any User Data; or

(b) loss of profits or any indirect or consequential loss or damage arising out of, or in connection with, this Agreement.

12.2 Maximum liability: ezyVet’s liability to Partner arising out of all claims for any loss or damage under this Agreement will not exceed in aggregate USD10,000.

13. General

13.1 No exclusivity: Nothing in this Agreement will prevent ezyVet from obtaining products and/or services from a third party that are similar or identical to, or compete with, the services provided by the Partner.

13.2 Notices: Any notice to be given in terms of this Agreement must be made in writing, by post or by email, sent to the address for that party as follows or to such other address as may be notified by either party to the other from time to time:

Any:

(a) communication by email will be deemed to be received when the email enters the recipient’s information system as evidenced by a delivery receipt requested by the sender and it is not returned undelivered or as an error;

(b) other communication in writing will be deemed to be received when left at the specified address of the recipient or on the third Business Day following the date of posting.

13.3 Variation: No variation of this Agreement will be effective unless it is in writing and signed by both parties.

13.4 Assignment: The Partner may not assign or transfer any of its rights or obligations under any this Agreement without ezyVet’s prior written consent. Any change in effective management or control of the Partner will be deemed to be an assignment by the Partner for the purposes of this clause. ezyVet may assign any of its rights and/or obligations under this Agreement to a related company (as that term is defined in section 2(3) of the Companies Act 1993) of ezyVet at any time.

13.5 Dispute Resolution:

(a) Dispute: If any dispute, disagreement or difference of opinion arising under this Agreement as to the meaning or application of any part of this Agreement or any other matter arising in connection with or relating to this Agreement (Dispute), a party may not commence any court or other formal proceedings relating to the Dispute unless it has complied with clauses 13.5(b) to (d), except where the party seeks urgent interlocutory or injunctive relief.

(b) Dispute Notice: A party claiming a Dispute has arisen must give written notice to the other parties specifying the nature of the Dispute (a Dispute Notice). On receipt of a Dispute Notice, the contractive representatives from each party will meet within 10 Business Days of the date of the Dispute Notice and will use their best endeavours to resolve the Dispute amicably and promptly

(c) Internal escalation: If the Dispute is not resolved within 20 Business Days of a party's receipt of a Dispute Notice, the Dispute must be referred to senior officers of the parties, who must meet and endeavour to resolve the Dispute.

(d) Arbitration: If the Dispute is not resolved within 10 Business Days (or within such longer period agreed as the parties may agree in writing) of the parties’ respective senior officers meeting to resolve the Dispute in accordance with clause 13.5(c) then either party may, by giving written notice to the other parties, require the Dispute to be submitted to arbitration. The arbitrator will be appointed by the parties or, if the parties cannot agree on an arbitrator within 10 Business Days of the written notice requiring arbitration, an arbitrator will be appointed, on application of any party, by the President of the New Zealand Law Society within a further five Business Days. Each party will bear its own costs of the arbitration and will contribute equally to the cost of the arbitrator.

(e) Continue to perform obligations: Pending resolution of a Dispute, the parties must continue to perform their obligations under this Agreement.

13.6 Force Majeure:

(a) Neither party is liable to the other for any failure to perform its obligations under this Agreement by reason of any cause or circumstance that is caused by Force Majeure. To avoid doubt, a party cannot rely on this clause 13.6 to the extent that it could have avoided the effects of the Force Majeure by taking reasonable steps, including ensuring business continuity by implementing a reasonable and industry standard disaster recovery plan.

(b) The party affected must:

(i) immediately notify the other party and provide full information concerning the event of Force Majeure including an estimate of the time likely to be required to overcome the event;

(ii) use all reasonable endeavours to overcome the event and minimize the loss to the other party; and

(iii) continue to perform its obligations as far as practicable.

(c) A party may terminate this Agreement by notice if, as a result of Force Majeure, the other party is unable to perform any of its material obligations under this Agreement for 30 days or more.

13.7 Waiver: A failure to exercise or delay in exercising any right under this Agreement will not operate as a waiver of that right. A party will not be deemed to have waived any right under this Agreement unless the waiver is in writing and signed by that party. Any such waiver will not constitute a waiver of any subsequent or continuing right or of any other provision in this Agreement.

13.8 Entire Agreement: This Agreement constitutes the entire agreement between the parties in relation to its subject matter and supersedes any previous agreement, representation or warranty in relation to any matter dealt with in this Agreement.

13.9 Severability: If any provision of this Agreement is invalid or unenforceable in any jurisdiction it must, in relation to that jurisdiction:

(a) be read down to the minimum extent necessary to achieve its validity, if applicable; and

(b) be severed from this Agreement in any other case,

without invalidating or affecting the remaining provisions of this Agreement or the validity of that provision in any other jurisdiction.

13.10 Relationship of the parties: Nothing expressed or implied in this Agreement will constitute either party as the employee, employer, officer, agent, partner or joint venturer of the other party. Neither party has authority to act or to assume any obligation or liability on behalf of the other party except as expressly provided in this Agreement.

13.11 Counterparts: This Agreement may be executed by the parties in counterparts, each of which will be deemed to be an original and all of which will constitute together one and the same agreement.

13.12 Governing law: This Agreement is subject to the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the New Zealand courts.