TERMS & CONDITIONS
1. Definitions
In these terms of trade:
“Account” means the Customer’s account with the Vendor;
“Customer” means the person or entity signing an Application for Credit or an Application for Subscription Services and any person acting with ostensible authority on behalf of the party named as the Customer;
“Drawings” means any Drawings provided to the Customer with Information Sheets;
“Information Sheet” means information provided by the Vendor to the Customer containing summarised information in respect of the Customer's particular trade or area of interest in relation to projects for tender;
“Information Sheet Fee” means any fee paid by the Customer for information on a specific tender;
“Order” or “Orders” means any order or orders of the Customer to the Vendor to supply Subscription Services;
“PPSA” means the Personal Property Securities Act 1999;
“Subscription Services” means the services provided by the Vendor to the Customer, in particular the provision of Information sheets and Drawings for tender projects;
“Terms” means these Terms and Conditions of Trade;
“Vendor” means Building Tender Services Limited.
2. Orders
Orders will be on such forms as the Vendor may require from time to time.
3. Acceptance
Each Order will constitute acceptance by the Customer of these Terms.
4. Prices
Prices shall be in accordance with the Vendor's Schedule of fees which may be amended by the Vendor from time to time but with no less than one month's notice given to the Customer.
5. Time of Performances
Time will in no case be of the essence in respect of the provision of Subscription Services. The Vendor will not be responsible for any delay in the provision of Subscription Services and the Customer will not be entitled to cancel orders because of any such delay. Dates for delivery of Goods and provision of Subscription Services are given in good faith and are not to be treated as a condition of sale or purchase.
6. Terms of Payment
(a) Unless otherwise agreed, payment for all Subscription Services will be made by direct debit on the 20th day of the month following supply for Customers with an Account.
(b) An invoice will be provided to the Customer at the end of each month for Subscription Services provided.
(c) The Vendor shall be entitled to suspend access to the Subscription Services and/or cancel the Subscription Services of a Customer in the event of any amount invoiced to the Subscriber being more than 10 days overdue.
(d) The Vendor may, at its sole discretion, require payment of a deposit by the Customer prior to processing any Order.
(e) An administration fee may be charged on all overdue amounts in addition to any other charges pursuant to this clause.
(f) Interest will accrue on all amounts overdue at the rate of 2.5% per month and will be calculated on a daily basis on the outstanding balance until payment is received in full by the Vendor.
(g) All costs of or incurred by the Vendor as a result of a default by the Customer including, but not limited to, administration charges, debt collection costs and legal costs as between solicitor and client are payable by the Customer.
(h) If the Customer defaults in any payment or commits any act of bankruptcy or any act which would render it liable to be wound up or if a resolution is passed or proceedings are filed for the winding up of the Customer or if a receiver is appointed for all or any assets of the Customer, the Vendor may cancel any Order without prejudice to any other rights it may have and payment for all completed Orders will immediately become due.
7. Taxes and Duties
Unless expressly included in any quotation or Order, Goods and Services Tax and other taxes and duties assessed or levies in connection with the provision of Subscription Services to the Customer are not included in the price and will be the responsibility of the Customer or, where the payment of such taxes or duties is the responsibility of the Vendor at law, the price will be increased by the amount of such taxes or duties.
8. Payment Allocation
The Vendor may in its discretion allocate any payment received from the Customer towards any invoice that the Vendor determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer the Vendor may re-allocate any payments previously received and allocated. In the absence of any payment allocation by the Vendor, payment will be deemed to be allocated in such manner as preserves the maximum value of the Vendor's Purchase Money Security Interest (as defined in the PPSA) in the products.
9. Errors or Omissions
Clerical errors or omissions, whether in computation or otherwise in the quotation, acknowledgement or invoice will be subject to correction.
10. Warranties
(a) Where the Customer is a consumer within the meaning of the Consumer Guarantees Act 1993 the Customer will have all the rights and remedies provided under that Act but no others.
(b) The Customer acknowledges that the Vendor is not responsible or accountable in any way for the accuracy of any of the Information supplied and it shall be the responsibility of the Customer to satisfy itself with the contents of such information prior to making a decision to submit a tender.
11. Cancellation
The Customer may cancel the Subscription Service on one calendar month's notice. Such notice must be in writing.
12. Events of Default
All payments will become immediately due to the Vendor and the Vendor may at its option suspend or terminate these Terms and/or exercise any of the remedies available to it under these Terms in the event that:
(a) a receiver is appointed over any of the assets or undertaking of the Customer;
(b) an application for the appointment of a liquidator is filed against the Customer which remains unsatisfied for a period of 10 days, or any of the conditions necessary to render the Customer liable to have a liquidator exist, or a liquidator is appointed;
(c) the Customer goes into voluntary liquidation, amalgamates with another company or acquires its own shares in accordance with the Companies Act 1993;
(d) the Customer suspends payments to its creditors or makes or attempts to make an arrangement or composition or scheme with its creditors; or
(e) the Customer becomes insolvent within the meaning of the Insolvency Act 2006 or is, becomes, or is presumed to be unable to pay its debts as they fall due as defined in section 287 of the Companies Act 1993 or commits any act of bankruptcy.
(f) There is a breach of clause 15 by the Customer.
13. Liability
(a) The Vendor’s liability to the Customer will be limited to the value of the Order supplied out of which any such liability arose.
(b) The Sale of Goods Act 1908, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon the Vendor which cannot by law (or which can only to a limited extent by law) be excluded or modified. In respect of any such implied warranties, conditions or terms imposed on the Vendor the Vendor’s liability will, where it is allowed, be excluded or if not able to be excluded only apply to the minimum extent required by the relevant statute.
(c) Except as otherwise provided above the Vendor will not be liable for any loss or damage of any kind whatsoever, arising from the provision of Subscription Services by the Vendor to the Customer including consequential loss whether suffered or incurred by the Customer or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from Subscription Services provided by the Vendor to the Customer.
(d) The Customer will indemnify the Vendor against all claims and loss of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of the Vendor or otherwise, brought by any person in connection with any matter, act, omission, or error by the Vendor its agents or employees in connection with the Subscription Services.
14. Copyright And Intellectual Property
(a) Unless it is specifically agreed in writing to the contrary, the Vendor retains all intellectual property rights, including copyright, patents, registered designs, source code, and all protection of confidential information in respect of any Subscription Services provided by the Vendor for/to the Customer.
(b) The Customer will at all times keep the Vendor advised of any infringement or potential infringement by a third party of the Vendor's intellectual property rights.
(c) The Customer will immediately advise the Vendor of any alleged infringement by the Vendor of a third party's intellectual property rights. The Customer will indemnify and hold harmless the Vendor against any losses, costs, actions or liabilities suffered or incurred as a consequence of such infringement or alleged infringement.
(d) The Vendor owns and has copyright in all designs, specifications, documents, source code and software produced by the Vendor in connection with the Subscription Services provided pursuant to these Terms and the client may use the Subscription Services once paid for in full and applied for the purpose for which they were intended and supplied by the Vendor.
(e) The Subscription Services provided by the Vendor to the Customer are for the sole use of the Customer and shall not be distributed or sold to any third party without the Vendor's consent.
(f) The Customer acknowledges that any passwords provided by the Vendor for the purposes of accessing Subscription Services are to be kept confidential and must not be provided to any third party under any circumstances.
15. Information Sheets
The Customer must satisfy itself that it can provide the services required by the parties seeking tenders. The Vendor makes no warranties or representation and expressly negates any implied or expressed condition that the Customer is able to provide the services anticipated by each Information Sheet. The Customer accepts all risk and responsibility for consequences arising from successfully winning a tender.
16. Dimensions and Specifications
Dimensions and specifications contained or referred to in any building documents are provided by the parties seeking tenders or their advisors and the Vendor has no involvement in creating the information and shall not be liable to the Customer for any losses suffered by the Customer as a result of information provided.
17. Assignment
(a) The Customer will not assign all or any of its rights or obligations or any debt (or part thereof) under these Terms without the written consent of the Vendor.
(b) The Vendor may also assign or sub-contract any part of the provision of the Subscription Services which is to be performed under any contract.
(c) In respect of any assignment by the Vendor pursuant to this clause, the Assignee will be entitled to the full rights of the Vendor.
18. Disputes
(a) In the event of any dispute arising between the Vendor and the Customer, such dispute will in the first instance be referred to mediation for resolution.
(b) In the event that resolution by mediation is not achieved to the satisfaction of both parties within 30 days of referral to mediation, either party may then take legal action to resolve the dispute.
(c) Nothing in this clause prevents the Vendor from taking legal action to enforce payment of any debt due, nor where required to seek interlocutory or injunctive relief.
19. Notices
All notices required or committed under these Terms are to be served as provided in sections 353, 359, 360 and 361 of the Property Law Act 2007 and section 387 of the Companies Act 1993, or by facsimile, in which case notice is deemed to be given the day of sending. The Customer also acknowledges that notice may be given by email to the most recent email address held by the Vendor.
20. Validity
If any provision of these Terms is invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions will not be affected, prejudiced or impaired.
21. Changes of General Terms and Conditions
(a) The Vendor may at any time refuse an order by the Customer or decline to approve any application by the Customer for any reason whatsoever.
(b) The existence of an account by the Customer with the Vendor does not automatically entitle the Customer to credit in the future.
(c) Failure by the Vendor to enforce any of the terms and conditions contained in these Terms will not be deemed to be a waiver of any of the rights or obligations the Vendor has under these Terms.
(d) The Vendor may from time to time by written notice to the Customer amend, add to or repeal the trading conditions covered by these Terms or may substitute any fresh trading conditions and such amendment, addition or substitute trading conditions will be binding on the Customer fourteen days after the date of delivery of the notice.
22. Force Majeure
Neither the Vendor nor the Customer will be liable to the other for any breach of these Terms by any extraordinary occurrences which are beyond the reasonable control of the party in question.
23. Privacy
The Customer irrevocably agrees that:
(a) the personal information provided, obtained and retained by the Vendor about the Customer will be held and used for the provision of Subscription Services to the Customer;
(b) the Vendor may provide any personal information to any third party and to obtain any information concerning the Customer from any other source;
(c) they must notify the Vendor of any changes in circumstances that may affect the accuracy of the information provided by the Customer to the Vendor. If the Customer is a natural person the Customer has the right of access to and correction of any personal information held by the Vendor.
24. Electronic Communications
If the Customer has provided the Vendor with an email address for communication purposes the Vendor will fully comply with all requirements under the Unsolicited Electronic Messages Act 2007.
25. Entire Agreement
These Terms constitute the entire agreement and supersede and extinguish all prior agreements and understandings between the Vendor and the Customer.
26. Other Agreements
If there is inconsistency between these Terms and any order submitted by the Customer or any other arrangement between the Vendor and Customer, these Terms prevail unless otherwise agreed in writing by the parties.
27. Governing Law
These Terms will be interpreted in accordance with and governed by the laws of New Zealand and the New Zealand Courts will have exclusive jurisdiction over any dispute in relation to the provision of Subscription Services.