HEX Terms of Use

Below we outline the terms of use for using and accessing our services, products and application.

  1. Application of terms
    1. These Terms apply to your use of the Application (as that term is defined below). By setting up an account, you agree to these Terms.
    2. If you are an External User and your access and use of the Application is on behalf of another person (e.g. a company), you confirm that you are authorised to, and do in fact, agree to these Terms on that person’s behalf and that, by agreeing to these Terms on that person’s behalf, that person is bound by these Terms.
    3. If you do not agree to these Terms, you are not authorised to access and use the Application, and you must immediately stop doing so.
  2. Changes
    1. We may change these Terms at any time by notifying you of the change by email or by posting a notice within the Application. If you are a Client User, we may also change these Terms by notifying the Client of the change. Unless stated otherwise, any change takes effect from the date set out in the notice. You are responsible for ensuring you are familiar with the latest Terms. By continuing to access and use the Application from the date on which the Terms are changed, you agree to be bound by the changed Terms.
    2. These Terms were last updated on September 2023.
  3. Interpretation
    In these Terms:
    Application means:
    • if you are the Client or a Client User, our online application(s) that we have agreed to provide the Client with access to, as agreed in writing between us and the Client; or
    • if you are an External User, our online application(s) that you have been invited by the Client to access and use.
    Client means:
    • if you have paid (or agreed to pay) for your right to access and use the Application or otherwise acquired that right from us, you; or
    • if you have not paid (or agreed to pay) for your right to access and use the Application or otherwise acquired that right from us, the entity who has paid (or agreed to pay) for that right or otherwise acquired that right from us.
    Client User means those personnel of the Client that the Client authorises to access and use the Application on the Client’s behalf.
    Client Data means all data, content, and information (including personal information) owned, held, used or created by the Client or on the Client’s behalf that is stored using, or inputted into, the Application by the Client or Client Users.
    Data means the Client Data and the External User Data.
    External User means a party, other than a Client User, that has been granted access to the Application by the Client.
    External User Data means all data, content, and information (including personal information) owned, held, used or created by an External User or on an External User’s behalf that is inputted into the Application by an External User.
    Fees means the fees (if any) for access to and use of the Application agreed under the Services Agreement or otherwise in writing between the Client and us.
    Force Majeure means an event that is beyond the reasonable control of a party, excluding:
    • 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.
    including and similar words do not imply any limit.
    Intellectual Property Rights includes copyright and all rights existing anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trade marks 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 includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.
    a party includes that party’s permitted assigns.
    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.
    personal information means information about an identifiable, living person.
    personnel includes officers, employees, contractors and agents, but a reference to the Client’s personnel does not include us.
    Services Agreement means the agreement under which the Client has paid (or agreed to pay) for your right to access and use the Application or otherwise acquired that right from us.
    Start Date means the date that you first set up an account.
    Terms means these terms titled HEX terms of use.
    Underlying Systems means the software, IT solutions, systems and networks (including software and hardware) used to provide the Application, including any third party software, solutions, systems and networks.
    We, us or our means Health Economics Consulting NZ Limited, company number 5804789.
    Year means a 12-month period starting on the Start Date or the anniversary of that date.
    You or our means you or, if clause 1.2 applies, both of you and the other person on whose behalf you are acting.
    Words in the singular include the plural and vice versa.
    A reference to 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.
  4. Provision Of The Application
    1. If you are the Client, during the term for which we have agreed in writing to provide you with access to the Application:
      1. we agree to use reasonable efforts to provide the Application:
        1. in accordance with these Terms and New Zealand law;
        2. exercising reasonable care, skill and diligence; and
        3. using suitably skilled, experienced and qualified personnel;
      2. subject to clause 4.3, we must use reasonable efforts to ensure the Application is available on a 24/7 basis. However, it is possible that on occasion the Application may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure; and
      3. we must use reasonable efforts to notify you by email advance details of any unavailability.
    2. Our provision of the Application to you is non-exclusive. Nothing in these Terms prevents us from providing the Application to any other person.
    3. Through the use of web services and APIs, the Application may interoperate with a range of third party service features. We do 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, we may cease to make available that feature to you. To avoid doubt, if we exercise our right to cease the availability of a third party feature, neither you nor (if you are not the Client) the Client is entitled to any refund, discount or other compensation.
  5. Your Obligations
    1. If you are the Client, during the term for which we have agreed in writing to provide you with access to the Application:
      1. use the Application in accordance with these Terms solely for:
        1. the Client’s own internal business purposes; and
        2. lawful purposes;
      2. not make available the Application to any third party other than, if you are the Client or a Client User that is authorised by the Client to grant access to Client Users and External Users, to Client Users and External Users; and
      3. not resell or otherwise commercially exploit the Application.
    2. If you are an External User, you must:
      1. use the Application in accordance with these Terms solely for:
        1. the purpose for which the Client has invited you to user the Application; and
        2. lawful purposes; and
      2. not resell, make available the Application to any third party, or otherwise commercially exploit the Application
    3. When accessing the Application, you must:
      1. a not impersonate another person or misrepresent authorisation to act on behalf of others or us;
      2. correctly identify the sender of all electronic transmissions;
      3. not attempt to undermine the security or integrity of the Underlying Systems;
      4. not use, or misuse, the Application in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the Application;
      5. not attempt to view, access or copy any material or data other than:
        1. that which you are authorised to access; and
        2. to the extent necessary for you to use the Application in accordance with these Terms; and
      6. neither use the Application 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.
    4. If you are the Client, a breach of any of these Terms by a Client User is deemed to be a breach of these Terms by the Client.
    5. If you are the Client, you are responsible for procuring all licences, authorisations and consents required for the Client and Client Users to use the Application, including to use, store and input Client Data into, and process and distribute Client Data through, the Application.
    6. If you are an External User, you are responsible for procuring all licences, authorisations and consents required for you to use the Application, including to use, store and input the External User Data that you input into the Application, and process and distribute that External User Data through, the Application.
  6. Data
    1. If you are the Client:
      1. you acknowledge that:
        1. we may require access to the Client Data to exercise our rights and perform our obligations under these Terms; and
        2. to the extent that this is necessary but subject to our confidentiality obligations to you under or in connection with the Services Agreement, we may authorise a member or members of our personnel to access the Client Data for this purpose; and
      2. you must arrange all consents and approvals that are necessary for us to access the Client Data as described in clause 6.1.
    2. If you are an External User:
      1. you acknowledge that:
        1. we may require access to the External User Data that you input into the Application to exercise our rights and perform our obligations under these Terms, and to exercise our rights and perform our obligations under any agreement we have with the Client; and
        2. to the extent that this is necessary but subject to our confidentiality obligations to the Client under or in connection with the Services Agreement, we may authorise a member or members of our personnel to access that External User Data for this purpose; and
      2. you must arrange all consents and approvals that are necessary for us to access the External User Data as described in clause 6.2a.
    3. You acknowledge and agree that:
      1. if you are the Client, we may use Data and information about Client Users’ and External Users’ use of the Application to generate anonymised and aggregated statistical and analytical data;
      2. if you are a Client User, we may use information about your use of the Application to generate anonymised and aggregated statistical and analytical data;
      3. if you are an External User, we may use the External User Data that you input into, the Application and information about your use of the Application to generate anonymised and aggregated statistical and analytical data;
      4. we may use the anonymised and aggregated statistical and analytical data referred to in clauses 6.3a - c (Analytical Data) for our internal research and product development purposes and to conduct statistical analysis and identify trends and insights;
      5. our rights under clause 6.3d will survive termination or expiry of these Terms; and
      6. title to, and all Intellectual Property Rights in, Analytical Data is and remains our property.
    4. If you are the Client:
      1. you acknowledge and agree that to the extent Data contains personal information, in collecting, holding and processing that information through the Application, we are acting as your agent for the purposes of the Privacy Act 2020 and any other applicable privacy law; and
      2. you must obtain all necessary consents from the relevant individual to enable us to collect, use, hold and process that information in accordance with these Terms.
    5. While we will take standard industry measures to back up all Data stored using the Application, if you are the Client, you agree to keep a separate back-up copy of all Data uploaded by you, Client Users or External Users onto the Application.
    6. You agree that we may store Data (including any personal information) in secure servers in Australia and may access that Data (including any personal information) in Australia and New Zealand from time to time.
    7. If you are the Client, you indemnify us against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by our solicitors) and loss of any kind arising from any actual or alleged claim by a third party that any Data infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that the Data is Objectionable, incorrect or misleading.
  7. Fees
    1. This clause 7 applies if, and only if:
      1. you are the Client; and
      2. there are Fees.
    2. You must pay us the Fees.
    3. The Fees exclude GST, which you must pay on taxable supplies, subject to us providing you with a valid GST tax invoice.
    4. Unless otherwise agreed in writing, you must pay the Fees:
      1. in accordance with the payment terms detailed in the Services Agreement; and
      2. electronically in cleared funds without any set off or deduction.
    5. We may charge interest on overdue amounts. Interest will be calculated from the due date to the date of payment (both inclusive) at an annual percentage rate equal to the corporate overdraft reference rate (monthly charging cycle) applied by our primary trading bank as at the due date (or, if our primary trading bank ceases to quote that rate, then the rate which in the opinion of the bank is equivalent to that rate in respect of similar overdraft accommodation expressed as a percentage) plus 2% per annum.
    6. Unless otherwise agreed in writing (including under the Services Agreement), we may increase the Fees by giving at least 30 days’ notice. If you do not wish to pay the increased Fees, you may terminate these Terms and your, the Client Users’ and the External Users’ right to access and use the Application on no less than 10 days’ notice, provided the notice is received by us before the effective date of the Fee increase. If you do not terminate these Terms and your right to access and use the Application in accordance with this clause, you are deemed to have accepted the increased Fees.
  8. Intellectual Property
    1. Subject to clause 8.2, title to, and all Intellectual Property Rights in, the Application, the Website, and all Underlying Systems is and remains our property (and our licensors’ property). You must not contest or dispute that ownership, or the validity of those Intellectual Property Rights.
    2. Title to, and all Intellectual Property Rights in, the Client Data (as between the Client and us) remains the Client’s property. If you are the Client, you grant us a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate the Client Data for any purpose in connection with the exercise of our rights and performance of our obligations in accordance with these Terms.
    3. If you are an External User that has inputted External User Data into the Application:
      1. title to, and all Intellectual Property Rights in, that External User Data (as between you and us) remains your property.
      2. you grant us a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate the External User Data for any purpose in connection with the exercise of our rights and performance of our obligations in accordance with these Terms or the exercise our rights and perform our obligations under any agreement we have with the Client; and
      3. to the extent not owned by the Client, you grant the Client and its personnel a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate the External User Data for the Client’s own internal business purposes.
    4. To the extent not owned by us, you grant us a royalty-free, transferable, irrevocable and perpetual licence to use for our own business purposes any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by us in the provision of the Application.
    5. If you provide us with ideas, comments or suggestions relating to the Application or Underlying Systems (together feedback):
      1. 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 us; and
      2. we may use or disclose the feedback for any purpose.
    6. You acknowledge that the Application may link to third party websites or feeds that are connected or relevant to the Application. Any link from the Application does not imply that we endorse, approve or recommend, or have responsibility for, those websites or feeds or their content or operators. To the maximum extent permitted by law, we exclude all responsibility or liability for those websites or feeds.
  9. Confidential Information
    Each party must keep these Terms and any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, these Terms, (Confidential Information) confidential, and must not use or disclose that Confidential Information without the prior written consent of the other party except to the extent that:
    1. disclosure is required by law;
    2. the relevant information is already in the public domain;
    3. it is reasonably required to obtain professional advice; or
    4. it is reasonably necessary in connection with any proposed:
      1. financing of that parting; or
      2. sale of all or part of the business of, or the shares in, that party,
        3. and the party receiving the Confidential Information has entered into confidentiality undertakings substantially the same as those set out in this section 9.
  10. Warranties
    1. Each party warrants that it has full power and authority to enter into, and perform its obligations under, these Terms.
    2. To the maximum extent permitted by law:
      1. our warranties relating to the Application are limited to those set out in these Terms, 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 as set out in clause 11; and
      2. we make no representation concerning the quality of the Application and do not promise that the Application will:
        1. meet your requirements or be suitable for a particular purpose; or
        2. be secure, free of viruses or other harmful code, uninterrupted or error free.
    3. If you are the Client or an External User:
      1. you agree and represent that you are accessing and using the Application, and accepting these Terms, for the purpose of trade; and
      2. you and we agree that:
        1. 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 Application or these Terms; and
        2. it is fair and reasonable that you and we are bound by this clause 10.3.
    4. Where legislation or rule of law implies into these Terms a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in these Terms. However, our liability for any breach of that condition or warranty is limited, at our option, to:
      1. supplying the Application again; and/or
      2. paying the costs of having the Application supplied again.
  11. Liability
    1. If you are the Client, our maximum aggregate liability under or in connection with these Terms or relating to the Application, or your, the Client Users’ or the External Users’ access and use of (or inability to access and use), the Application whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not exceed an amount equal to the Fees paid by you relating to the Application under the work order (as that term is defined in the Services Agreement) under which we have agreed to provide you with access to the Application. The cap in this clause 11.1 includes the cap set out in clause 10.2a.
    2. If you are a Client User, to the maximum extent permitted by law, you agree that your sole rights and remedies in relation to any claim, damage, loss, liability or cost under or in connection with these Terms, the Application, or your access and use of (or inability to access or use) the Application are the rights and remedies available to the Client under the Services Agreement or at law. This exclusion applies regardless of whether our liability or responsibility arises in contract, tort (including negligence), equity, breach of statutory duty, or otherwise.
    3. If you are an External User, to the maximum extent permitted by law:
      1. you access and use the Application at your own risk; and
      2. we are not liable or responsible to you for any claim, damage, loss, liability and cost under or in connection with these Terms, the Application, or your access and use of (or inability to access or use) the Application. This exclusion applies regardless of whether our liability or responsibility arises in contract, tort (including negligence), equity, breach of statutory duty, or otherwise.
    4. Neither party is liable to the other under or in connection with these Terms or the Application for any:
      1. loss of profit, revenue, savings, business, use, data (including Data), and/or goodwill; or
      2. consequential, indirect, incidental or special damage or loss of any kind.
    5. Clauses 11.1 to 11.4 do not apply to limit our liability under or in connection with these Terms for:
      1. personal injury or death;
      2. fraud or wilful misconduct; or
      3. a breach of confidentiality
    6. Clause 11.4 does not apply to limit your liability:
      1. if you are the Client, to pay the Fees (if any);
      2. if you are the Client, under the indemnity in clause 6.7; or
      3. for those matters stated in clause 11.5a to 11.5c.
    7. Neither party will be responsible, liable, or held to be in breach of these Terms for any failure to perform its obligations under these Terms or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under these Terms, or by the negligence or misconduct of the other party or its personnel.
    8. We will not be responsible, liable, or held to be in breach of these Terms for any failure to perform our obligations under these Terms or otherwise, to the extent that the failure arises as a result of any act or omission by an External User.
    9. 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 these Terms or the Application.
  12. Term, Termination and Suspension
    1. Unless terminated under this clause 12, these Terms and your right to access and use the Application:
      1. starts on the Start Date;
      2. if you are the Client, continues for the period for which we have agreed to provide you with access to the Application, as agreed in writing between us and you; and
      3. if you are a Client User or External User, continues until:
        1. the Client requires us to terminate your access to and use of the Application (or any part of it); or
        2. the Client’s right to access and use the Application is terminated.
    2. Subject to clause 7.6, if you are the Client and the Services Agreement specifies a minimum initial term for your right to access and use the Application, the earliest date for termination under clause 12.1 will be the expiry of that initial term.
    3. Either party may, by notice to the other party, immediately terminate these Terms and your right to access and use the Application if the other party breaches any material provision of these Terms and the breach is not:
      1. remedied within 10 days of the receipt of a notice from the first party requiring it to remedy the breach; or
      2. capable of being remedied.
    4. If you are the Client, either party may, by notice to the other party, immediately terminate these Terms and your right to access and use the Application if the other party 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.
    5. If you are the Client, you may terminate these Terms and your right to access and use the Application in accordance with clause 7.6.
    6. Termination of these Terms does not affect either party’s rights and obligations that accrued before that termination.
    7. If you are the Client, on termination of these Terms, you must pay all Fees for the provision of the Application prior to that termination.
    8. No compensation is payable by us to you or the Client as a result of termination of these Terms for whatever reason.
    9. If you are the Client, you will not be entitled to a refund of any Fees that you have already paid if:
      1. these Terms and your right to access and use the Application are terminated; or
      2. any Client Users’ or External Users’ right to access and use the Application is terminated in accordance with these Terms.
    10. If you are the Client, at any time prior to one month after the date of termination of these Terms, you may request:
      1. a copy of any Data stored using the Application, provided that you pay our reasonable costs of providing that copy. On receipt of that request, we must provide a copy of the Data in a common electronic form. We do not warrant that the format of the Data will be compatible with any software; and/or
      2. deletion of the Data stored using the Application, in which case we must use reasonable efforts to promptly delete that Data.
        3. To avoid doubt, we are not required to comply with clause 12.10a to the extent that you have previously requested deletion of the Data.
    11. Without limiting any other right or remedy available to us, we may restrict or suspend your access to and use of the Application or, if you are the Client, any Client Users’ or External Users’ access to and use of the Application and/or delete, edit or remove the relevant Data if we consider that:
      1. you or, if you are the Client, any Client User or External User has:
        1. undermined, or attempted to undermine, the security or integrity of the Application or any Underlying Systems;
        2. used, or attempted to use, the Application:
          • for improper purposes; or
          • in a manner, other than for normal operational purposes, that materially reduces the operational performance of the Application; or
        3. transmitted, inputted or stored any Data that breaches or may breach these Terms or any third party right (including Intellectual Property Rights and privacy rights), or that is or may be Objectionable, incorrect or misleading;
      2. you have otherwise materially breached these Terms; or
      3. if you are the Client, any Client User or External User has otherwise materially breached these Terms.
  13. General
    1. Neither party is liable to the other for any failure to perform its obligations under these Terms to the extent caused by Force Majeure.
    2. No person other than you and us has any right to a benefit under, or to enforce, these Terms.
    3. For us to waive a right under these Terms, that waiver must be in writing and signed by us.
    4. Subject to clause 6.4, we are your independent contractor, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under these Terms.
    5. If we need to contact you, we may do so by email or by posting a notice through the Application. You agree that this satisfies all legal requirements in relation to written communications. You may give notice to us under or in connection with these Terms by emailing admin@hec.nz.
    6. These Terms, and any dispute relating to these Terms or the Application, are 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 these Terms or the Application.
    7. Clauses which, by their nature, are intended to survive termination of these Terms, including clauses 6.7, 8, 10, 11, 12.6 to 12.9 and 13.6, continue in force.
    8. If any part or provision of these Terms is or becomes illegal, unenforceable, or invalid, that part or provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity. If modification is not possible, the part or provision must be treated for all purposes as severed from these Terms. The remainder of these Terms will be binding on you.
    9. Subject to clauses 2.1 and 7.6, any variation to these Terms must be in writing and signed by both parties.
    10. These Terms set out everything agreed by the parties relating to the Application, and supersede and cancel anything discussed, exchanged or agreed prior to the Start Date. The parties have not relied on any representation, warranty or agreement relating to the Application that is not expressly set out in these Terms, 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 13.10.
    11. You may not assign, novate, subcontract or transfer any right or obligation under these Terms without our prior written consent, that consent not to be unreasonably withheld. You remain liable for your obligations under these Terms despite any approved assignment, subcontracting or transfer.