© 36 ATP Limited 2021
All rights Reserved.
1 APPLICATION OF TERMS
1.1 These Terms apply to your use of the Services (as that term is defined below). By clicking I agree and accessing and using the Services you agree to these Terms as “Client” with 36 ATP Limited, a New Zealand company (8192098) of Wellington (“36 ATP” or “we”).
1.2 If you do not agree to these Terms, you are not authorised to access and use the Service, and you must immediately stop doing so.
2.1 We may change these Terms at any time by notifying you of the change by email or by posting a notice on the Website. 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 Service from the date on which the Terms are changed, you agree to be bound by the changed Terms.
SECTION A: AGREEMENT AND KEY DETAILS
36 ATP agrees to provide, and the Client agrees to buy, Services on the terms of the Agreement. The Agreement comprises:
▲ Section A (Agreement and Key Details), including this cover page and the signature clauses; and
▲ Section B (General Terms).
Start date of the Agreement On the date both parties sign it
End date of the Agreement The date 36 ATP has completed delivery of all of the Services ordered by Client.
Services Services ordered by Client from time to time from 36 ATP’s website, which may include:
Wellness Assessment ( in person or online)
- Specific body metrics ( blood pressure, Basal Temperatures etc)
Bespoke Diet/Lifestyle Protocol
set out in detail in 36 ATP’s website at the time Client’s order is placed.
Disclaimer 36 ATP makes no warranty that the Services will result in any outcome or that they are it for any particular health purpose. The Services are designed to produce elevated energy levels from nutritional sources, but no guarantee is made that any particular result will be achieved.
Any products, information and services offered in the course of providing the Services are intended to be strictly informational, educational and self-empowering in nature, and are provided without any guarantee or warranty beyond, except those warranties that cannot lawfully be excluded.
The Services do not involve the diagnosing, or prescribing of remedies for the treatment of disease. If you have medical conditions, please seek help from a health care provider. 36 ATP makes no claims to any specialized medical or nutritional training or qualifications. Please consult with your health care provider if you have any questions regarding this food program, and then make your own well-informed decisions based upon what is best for your unique genetics, culture, conditions, and stage of life.
To the extent any warranties or guarantees cannot be lawfully excluded by 36 ATP, then 36 ATP’s liability to Client in respect of same shall be limited to the total fees paid by Client in the preceding 12 month period.
Fees Fees for each of the Services ordered by Client shall be as set out in 36 ATP’s website at the time of ordering.
Invoice dates The Services will be billed in advance of delivery, at the time Client places the order via 36 ATP’s website.
The website at http://www.36atp.com
SECTION B: GENERAL TERMS
3.1 Definitions: In the Agreement, the following terms have the stated meaning:
Agreement: Section A (Agreement and Key Details, including the cover page and signature clauses) and Section B (General Terms).
Confidential Information: the terms and conditions of the Agreement and any information that is not public knowledge and which is obtained from the other party in the course of, or in connection with, the Agreement. 36 ATP’s Confidential Information includes Intellectual Property owned by 36 ATP.
Fees: the fees set out in the Key Details.
Force Majeure: 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.
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 or 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.
Key Details: the agreement specific details set out in Section A of the Agreement.
Services: the services set out in the Key Details.
3.2 Interpretation: In the Agreement:
a clause and other headings are for ease of reference only and do not affect the interpretation of the Agreement;
b words in the singular include the plural and vice versa; and
c a reference to:
i a party to the Agreement includes that party’s permitted assigns; and
ii including and similar words do not imply any limit.
4.1 General: In addition to the other obligations of the Agreement:
a 36 ATP must provide the Services:
i in accordance with the Agreement, including any requirement set out in the Key Details, and all applicable laws;
ii exercising reasonable care, skill and diligence; and
iii using suitably skilled, experienced and qualified staff; and
b the Client must promptly make decisions (including approvals) and provide 36 ATP with all information reasonably required to provide the Services.
5.1 General: 36 ATP makes no warranty that the Services will result in any outcome or that they are it for any particular health purpose. The Services are designed to produce elevated energy levels from nutritional sources, but no guarantee is made that any particular result will be achieved.
5.2 Any products, information and services offered in the course of providing the Services are intended to be [strictly informational, educational and self-empowering in nature], and are provided without any guarantee or warranty beyond, except those warranties that cannot lawfully be excluded
5.3 The Services do not involve the diagnosing, or prescribing of remedies for the treatment of disease. If you have medical conditions, please seek help from a health care provider. 36 ATP makes no claims to any specialized medical or nutritional training or qualifications. Please consult with your health care provider if you have any questions regarding this food program, and then make your own well-informed decisions based upon what is best for your unique genetics, culture, conditions, and stage of life.
5.4 Limitation of liability: To the extent any warranties or guarantees cannot be lawfully excluded by 36 ATP, then 36 ATP’s liability to Client in respect of same shall be limited to the total fees paid by Client in the preceding 12 month period.
a Any implied condition or warranty (including any warranty under Part 3 of the New Zealand Contract and Commercial Law Act 2017) is excluded.
6 INTELLECTUAL PROPERTY
6.1 Retained Intellectual Property: The following Intellectual Property (including any modification, enhancement or derivative work of that Intellectual Property) remains the property of the current owner, regardless of its use in the Services:
a Intellectual Property that existed prior to the date of the Agreement; and
b Intellectual Property that was developed independently of the Agreement.
6.2 Ownership going forward:
a Subject to clause 4.1, all new Intellectual Property created or developed by 36 ATP in providing the Services, will vest in and remain owned by 36 ATP.
7.1 Fees: The Client must pay the Fees to 36 ATP for providing the Services.
a 36 ATP must provide the Client with valid GST tax invoices on the dates set out in the Key Details, or if there are none, in advance of provision of the relevant Services being undertaken.
b The Fees exclude GST, which the Client must pay on taxable supplies under the Agreement.
c The Client must pay 36 ATP’s invoice:
i Immediately upon placing an order for Services via 36 ATP’s website;
ii electronically in cleared funds without any set off or deduction.
8.1 Security: Each party agrees that, unless it has the prior written consent of the other party, it will:
a keep confidential at all times the Confidential Information of the other party; and
b ensure that any personnel or professional advisor to whom a party discloses the other party’s Confidential Information is aware of, and complies with, this clause 6.1.
8.2 Disclosure required: The obligations of confidentiality in clause 6.1 do not apply to any disclosure:
a for the purpose of performing the Agreement or exercising a party’s rights under the Agreement;
b required by law (including under the rules of any stock exchange);
c of Confidential Information which:
i is publicly available through no fault of the recipient of the Confidential Information or its personnel; or
ii was rightfully received from a third party without restriction and without breach of any obligation of confidentiality; or
d by 36 ATP 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 36 ATP enters into a confidentiality agreement with the third party on terms no less restrictive than this clause 6.
8.3 Return of information: Except to the extent that a party has ongoing rights to use Confidential Information, a party must, at the request of the other party following the expiry or termination of the Agreement, promptly return to the other party or destroy all Confidential Information of the other party in the recipient party’s possession or control.
9.1 Maximum liability: The maximum aggregate liability of 36 ATP under or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not exceed the Fees paid and/or payable by the Client under the Agreement for Services properly provided in accordance with the Agreement.
9.2 Unrecoverable loss: Except for the Client’s liability to pay the Fees, neither party is liable to the other under or in connection with the Agreement for any loss of profit, data, savings, business, revenue, and/or goodwill, or any indirect, consequential, incidental or special loss or damage of any kind.
9.3 Unlimited liability:
a Clauses 7.1 and 7.2 do not apply to limit 36 ATP’s liability for:
i personal injury or death;
ii fraud or wilful misconduct; or
iii breach of clause 6.
b Clause 7.2 does not apply to limit the Client’s liability for those matters stated in clauses 7.3ai to 7.3aiii.
9.4 No liability for the other’s failure: Neither party will be responsible, liable, or held to be in breach of the Agreement for any failure to perform its obligations under the Agreement or otherwise, to the extent the failure is directly caused by the other party failing to comply with its obligations under the 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 the Agreement.
10 TERM AND TERMINATION
10.1 Duration: Unless terminated under this clause 8, the Agreement starts and ends on the dates set out in the Key Details.
10.2 No fault termination: Either party may terminate the Agreement on no less than one month’s prior notice to the other party.
10.3 Other Termination rights: Either party may, by notice to the other party, immediately terminate the Agreement if the other party:
a breaches any material provision of the Agreement and the breach is not:
i remedied within 10 days of the receipt of the notice from the first party requiring it to remedy the breach; or
ii capable of being remedied;
b has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of external administration, or ceases to continue business for any reason; or
c is unable to perform a material obligation under the Agreement for 30 days or more due to Force Majeure.
10.4 Consequences of expiry or termination:
a Expiry or termination of the Agreement does not affect each party’s rights and obligations accrued before the expiry or termination date.
b The Client must pay for Services provided before the expiry or termination date.
10.5 Obligations continuing: Clauses which, by their nature are intended to survive expiry or termination, including clauses 6, 7 and 8, continue in force.
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, the Agreement through good faith negotiations.
11.2 Obligations continue: Each party must, to the extent possible, continue to perform its obligations under the Agreement even if there is a dispute.
11.3 Right to seek relief: This clause 9 does not affect either party’s right to seek urgent interlocutory and/or injunctive relief.
12 GENERAL PROVISIONS
12.1 Force Majeure: Neither party is liable to the other for any failure to perform its obligations under the 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 endeavours to overcome the Force Majeure; and
c continues to perform its obligations as far as practicable.
12.2 Waiver: To waive a right under the Agreement, that waiver must be in writing and signed by the waiving party.
12.3 Independent contractor: 36 ATP is an independent contractor of the Client. No other relationship (e.g. joint venture, agency, trust or partnership) exists under the Agreement.
12.4 Notices: A notice given by a party under the Agreement must be delivered via email to an email address notified by the other party for this purpose. If the notice is given under clause 8, 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.
12.5 Severability: Any illegality, unenforceability or invalidity of a provision of the Agreement does not affect the legality, enforceability or validity of the remaining provisions of the Agreement.
12.6 Variation: Any variation to the Agreement must be in writing and signed by both parties.
12.7 Entire Agreement: The Agreement sets out everything agreed by the parties relating to the Services and supersedes and cancels anything discussed, exchanged or agreed prior to the Agreement’s start. The parties have not relied on any representation, warranty or agreement relating to the subject matter of the Agreement that is not expressly set out in the Agreement, and no such representation, warranty or agreement has any effect from the Agreement’s start. Without limiting the previous sentence, the parties agree to contract out of sections 9, 12A, and13 of the Fair Trading Act 1986, and it is fair and reasonable that the parties are bound by this clause 10.7.
12.8 Subcontracting and assignment: Neither party may assign, subcontract or transfer any right or obligation under the Agreement without the prior written approval of the other (not to be unreasonably withheld). The first party remains liable for its obligations under the Agreement despite any approved assignment, subcontracting, or transfer.
12.9 Law: The 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 the Agreement.
PERSONAL INFORMATION WE COLLECT
If you choose to provide us with personal information such as your email address, for example by filling out an electronic query or order form, we will use that information to communicate with you in response to your query, about the goods and services we provide or are about to provide you or other matters we consider might be of interest to you. You may choose not to provide us with your personal information, however we may not be able to process your application or provide you with certain products or services if you do not provide your personal information.
When you visit the Site, we automatically collect certain information about your device, including information about your web browser, IP address, time zone, and some of the cookies that are installed on your device. Additionally, as you browse the Site, we collect information about the individual web pages or products that you view, what websites or search terms referred you to the Site, and information about how you interact with the Site. We refer to this automatically-collected information as “Device Information.”
We collect Device Information using the following technologies:
– “Cookies” are data files that are placed on your device or computer and often include an anonymous unique identifier. For more information about cookies, and how to disable cookies, visit http://www.allaboutcookies.org.
– “Log files” track actions occurring on the Site, and collect data including your IP address, browser type, Internet service provider, referring/exit pages, and date/time stamps.
– “Web beacons,” “tags,” and “pixels” are electronic files used to record information about how you browse the Site.
HOW DO WE USE YOUR PERSONAL INFORMATION?
We use the Order Information that we collect generally to fulfill any requests made through the Site (including providing you with invoices and/or order confirmations). Additionally, we use this Order Information to communicate with you and when in line with the preferences you have shared with us, provide you with information or advertising relating to our products or services.
We use the Device Information that we collect to help us screen for potential risk and fraud (in particular, your IP address), and more generally to improve and optimize our Site (for example, by generating analytics about how our customers browse and interact with the Site, and to assess the success of our marketing and advertising campaigns).
Your personal information generally may be provided to our third party IT provider as our data is stored and monitored by third parties engaged by us. We do not sell any information which identifies you personally. We may gather more extensive information if we are concerned, for example, about security issues.
If you have opted to receive it, we may also use this information to send you marketing messages in accordance with our electronic marketing policy set out below.
SHARING YOUR PERSONAL INFORMATION
We share your personal information with third parties to help us use your personal information, as described above. For example, we also use Google Analytics to help us understand how visitors use the Site–you can read more about how Google uses your personal information here: https://www.google.com/intl/en/policies/privacy/. You can also opt-out of Google Analytics here: https://tools.google.com/dlpage/gaoptout.
Finally, we may also share your personal information to comply with applicable laws and regulations, to respond to a subpoena, search warrant or other lawful request for information we receive, or to otherwise protect our rights.
As described above, we use your personal information to provide you with targeted advertisements or marketing communications we believe may be of interest to you. For more information about how targeted advertising works, you can visit the Network Advertising Initiative’s (“NAI”) educational page at http://www.networkadvertising.org/understanding-online-advertising/how-does-it-work.
You can opt out of targeted advertising by:
FACEBOOK – https://www.facebook.com/settings/?tab=ads
GOOGLE – https://www.google.com/settings/ads/anonymous
BING – https://advertise.bingads.microsoft.com/en-us/resources/policies/personalized-ads
Additionally, you can opt out of some of these services by visiting the Digital Advertising Alliance’s opt-out portal at: http://optout.aboutads.info/.
DO NOT TRACK
Please note that we do not alter our Site’s data collection and use practices when we see a Do Not Track signal from your browser.
DATA RETENTION AND PROTECTION
When you submit information to us or our Site, we will maintain your Information for our records unless and until you ask us to delete this information. We ensure, to the extent reasonably possible, that your personal information is protected against loss, unuathorised access, modification and disclosure, or other misuse.
We may be required to disclose and transfer your personal information to third parties located in a different country from where you live. If those countries do not have data protection laws comparable to the data protection laws of your country of residence, then we will take reasonable steps to ensure that your personal information is protected in those countries.
36 ATP Limited is the data controller for personal data collected by it in the provision of its services, support and assistance to you as the user. If we use personal data that has been collected by a third party we will process the information as a data processor on behalf of the third party that collected your personal information.
Request access: You have the right to request access to any personal information that we hold about you, the right to know the source of your personal information and the processing methods used by us by contacting us as set out below. If we cannot give you access to the personal information that you have requested, then we will let you know the legal reasons for not disclosing your personal information. If you are not happy with the legal reasons provided, then you have the right to complain to the New Zealand Privacy Commissioner.
Request correction: You have the right to request correction of the personal information that we hold about you, by contacting us as set out below. We will correct your personal information if it is necessary to ensure that your personal information is accurate, up to date, complete and not misleading. If we decide that it is unnecessary to correct your personal information, we will let you know the legal reasons for its decision. If you are not happy with those reasons, then you have the right to complain to the New Zealand Privacy Commissioner or to us, as set out below.
Request to restrict the use and processing of or delete your personal information: You have the right to request that we delete your personal information when it is no longer needed for the purposes described in this policy, or withdraw your authorisation for us to use your personal information. You also have the right to restrict your personal information from being processed in the event you consider your rights and freedoms outweigh our legitimate interests in using your personal information.
Data portability: You have the right to request that we transfer your personal information from one electronic processing system to another electronic processing system.
For more information about our privacy practices, if you have questions, or if you would like to make a complaint, or request correction or deletion of personal information, or request any restrictions on the use or processing of your personal information please contact us by e-mail at [ ] or by mail using the details provided below:
For any complaints in respect to our handling on any matters of your privacy you may contact the New Zealand Privacy Commissioner: www.privacy.org.nz/your-rights/how-to-complain/.