Rosario Holdings Limited (trading as Onlinemeasures) –
Terms of trade
In these Terms of Trade we have used we, us, and our to refer to Rosario Holdings Limited and you to refer to our Customer. By ordering Services from us, you agree to these Terms of Trade to the exclusion of your terms (if any).
1. Scope of the Services
1.1 The services we will provide you are quantity surveying services in respect of paint or coating area calculations to determine the total surface area to be painted or, for steel, coated with intumescent coating (Services). We will provide these area calculations in a spreadsheet format into which you can insert your pricing figures.
1.2 Our Services do not include providing any advice or recommendations regarding:
- the type of paint and/or coating to be used;
- the number of coats of paint or coating required; or
- the price you should quote for the painting and/or coating work.
1.3 Our Services will be provided on the basis of the plans, information and/or specifications (to be) provided by you (Plans). In providing the Services we will rely on the Plans. We do not warrant the accuracy of such Plans or matters specified in clause 1.2
2. Performance of Services
2.1 We will:
- perform the Services with reasonable skill, care and diligence in a professional manner;
- endeavour to ensure that the Services are performed in accordance with any time frames agreed in writing with you;
- liaise with you during the course of performing the Services in accordance with your reasonable requirements.
2.2 You will give reasonable assistance to enable us to perform the Services by:
- giving clear instructions; and
- promptly providing any information or plans and specifications required from you for us to complete the Services.
2.3 If we have given you a time frame for completion of the Services, unless agreed in writing to the contrary such time frame is approximate only and is not deemed to be of the essence of the contract.
3.1 You will pay to us the fee set out in the fee proposal attached to these Terms of Trade or as otherwise set out in our correspondence, or (if no fee proposal or correspondence has been provided) as set out on our website at the date of provision of these Terms of Trade (Fee). Any variation to the Fee will require both parties’ written consent.
3.2 The Fee is exclusive of GST and you agree to pay GST and any other taxes on the Fee which are payable by you in New Zealand dollars.
3.3 In the event these Terms of Trade are terminated in accordance with clause 6.2(c) or by you under clause 10.10 prior to completion of the Services, you must immediately pay us the Fee at the termination date..
4. Terms of payment
4.1 Payment for the Services (and any associated expenses and disbursements) is due on acceptance of these Terms of Trade (Due Date) and must be paid prior to commencement of the Services, except where we have agreed in writing that other payment terms shall apply.
4.2 If you do not make payment on the Due Date, you are in default and must pay default interest at the rate of 5% per annum above our bank’s commercial lending rate, which shall accrue on a daily basis on the total amount outstanding from the Due Date to the date of payment in full.
4.3 Notwithstanding clause 4.2, if payment is outstanding beyond the Due Date, we may suspend performing the Services until the date of payment in full.
4.4 Payment of our Fee must be made without set-off or deduction of any kind.
5. Limitation of liability
5.1 You agree that you are acquiring the Services for business purposes in terms of section 2 and 43 of the Consumer Guarantees Act 1993, meaning the guarantees contained in that Act are excluded.
5.2 Except to the extent that the law prevents us from excluding liability and as expressly provided for in clause 5.3, we shall not be liable for any loss or damage or liability of any kind whatsoever (including consequential loss or lost profit or business) whether suffered or incurred by you or another person and whether in contract, or tort (including in negligence), or otherwise and whether such loss or damage arises directly or indirectly from Services provided by us to you.
5.3 To the extent that we are liable for any reason for any loss suffered or liability incurred by you arising from any breach of these Terms of Trade or for any other reason, such liability is limited to the amount equivalent to five times the Fee
6.1 Occurrence of any of the following events will constitute a default under these Terms of Trade:
- You fail to pay any money owing on the Due Date;
- We believe you have committed or will commit an act of bankruptcy, have had or are about to have a receiver or liquidator appointed, or are declared insolvent;
- You are otherwise in breach of your obligation
6.2 If any of the events described in clause 6.1 occur, in addition to any remedies we may have at law, we may do one or more of the following:
- suspend the Services in accordance with clause 4.3;
- charge default interest in accordance with clause 4.2;
- immediately terminate these Terms of Trade by notice in writing to you.
7. Intellectual property
7.1 In respect of Intellectual Property used in or arising from the performance of the Services:
- all pre-existing Intellectual Property the subject of an Intellectual Property right resides with the owner as at the date of these Terms of Trade (whether you or us);
- any new Intellectual Property will bedealt with in accordance with clause 8.
7.2 If any Services are to be undertaken based on your designs, you warrant that the undertaking of the Services by us will not infringe any third party’s Intellectual Property rights and you indemnify us against any loss, liability, costs and expenses in the event of any claim being made that the Services infringe any patent, copyright or other rights of any other person.
8. Intellectual property ownership
8.1 Subject to clause 7.1
- we are and will remain the exclusive owner everywhere in the world of all Intellectual Property rights and interests (including copyright and all other statutory and common law rights and interests) in the Services, and any other services performed by us for you, as first owner of those Intellectual Property rights and interests.
8.2 We shall retain exclusive worldwide ownership at all times of all Intellectual Property in our methods of working, techniques, ideas, skills and know-how.
8.3 You must not attribute the Services to anyone other than us or remove any of our trade marks, signatures, logos or similar from the product of our Services.
8.4 This clause 8 shall continue in force as between the parties notwithstanding the termination of these Terms of Trade or the completion of the Services.
9.1 In these Terms of Trade: Intellectual Property includes all intellectual property rights (including without limitation copyright, patent and design rights, drawings, documents, data, ideas, procedures and calculations). Services means our performance of services for you as described in clause 1.
9.2 The rule of construction known as the contra proferentem rule does not apply to these Terms of Trade.
9.3 Words importing the singular include the plural and vice versa.
9.4 Headings are for convenience only and do not form part of, or affect the interpretation of, these Terms of Trade.
9.5 References to a party include that party’s successors, personal representatives, executors, administrators and permitted assigns.
9.6 References to a statute include references to:
- regulations, orders, rules or notices made pursuant to that statute;
- all amendments to that statute and those regulations, orders, rules or notices, whether by subsequent statute or otherwise; and
- any statute passed in substitution of that statute.
9.7 References to us include our employees, contractors and agents.
11. Your information
11.1 You authorise us:
- to collect, retain and use information about you from any person for the purpose of assessing your creditworthiness;
- to disclose information about you to such persons as may be necessary or desirable to enable us to exercise any power or enforce or attempt to enforce any of our rights, remedies and powers under these Terms of Trade.
11.2 You consent to us and any financier or credit-rating agency making enquiries of and obtaining any information about your financial standing and creditworthiness.
10.1 Notices: Any notice may be given by phone, in person, posted, or sent by fax or email to you (or where you are a company, to any of your directors).
10.2 Force majeure: We shall not be liable for delay or failure to perform the Services if the cause of delay or failure is beyond our control.
10.3 Variation: We shall be entitled at any time by notice in writing to you to vary any provision of these Terms of Trade and you shall be bound by such variation.
10.4 Assignment: You must not subcontract or assign any of your rights, powers or obligations under these Terms of Trade. 10.5 Sub-contracting: We may sub-contract any of our obligations under these Terms of Trade without your consent, provided that we will remain responsible to you for any acts or omissions of any such sub-contractors.
10.6 Construction Contracts Act: Where these Terms of Trade constitute a construction contract for the purposes of the Construction Contracts Act 2002, we may, at our discretion, render invoices in the form of payment claims.
10.7 Health and Safety: We will not assume any duty imposed on you under the Health and Safety at Work Act 2015 and, for the purposes of that Act, you agree that we will not at any time have management or control of the relevant project site (or any site other than our own premises).
10.8 Confidentiality: You shall at all times treat as confidential all non-public information and material received from us and shall not publish, release, or disclose the same without our prior written consent. For clarity, confidential information includes any new Intellectual Property and prices.
10.9 Costs: You must pay our costs (including legal costs, as between solicitor and client) of and incidental to the enforcement or attempted enforcement of our rights, remedies and powers under these Terms of Trade.
10.10 Termination: Either party may terminate these Terms of Trade by giving one month’s written notice to the other party.
10.11 Disputes: Any claim or dispute arising under these Terms of Trade shall be determined by arbitration under the Arbitration Act 1996 if the parties are unable to resolve such dispute themselves within one (1) month of the dispute arising. However, nothing in this clause prevents either party from taking immediate steps to seek any equitable relief before the New Zealand Courts.
10.12 Jurisdiction: These Terms of Trade are governed by and construed in accordance with the current laws of New Zealand and the parties agree to submit to the non-exclusive jurisdiction of the Courts of New Zealand for any disputes or proceedings arising out of or in connection with these Terms of Trade.