Modern Consulting Limted Terms of Service

In these Terms and Conditions of Trade:

“Content” means the schedules, markups, and other documents produced by Modern Consulting Limited.

“Marks” means any logo’s, trademarks, and the like associated with the

“MCM“, “we“, “our” or “us” means Modern Consulting Limited t/a Modern Consulting Measure.

“Project Database” means the web application created and maintained by Modern Consulting Limited for the purpose of providing access to quantity surveying services for trade contractors and builders.

“Services” means the quantity surveying services provided by the staff of Modern Consulting Limited, including those services accessed via the Project Database.

“Submissions” means any information or documents submitted via email or through the Project Database.

“Terms” means these Terms and Conditions of Trade.

“You” or “Your” means both you and any entity or firm you are acting on behalf of with actual or ostensible authority.

These Terms constitute a legally binding agreement made between you, whether personally or on behalf of an entity, and Modern Consulting Limited, concerning your access to and use of the Services. You agree that by accessing the Services, you have read, understood, and agreed to be bound by these Terms. If you do not agree with all of these Terms, then you are expressly prohibited from using the services and you must discontinue use immediately.

Supplemental terms and conditions or documents that may be posted on the Services from time to time are hereby expressly incorporated herein by reference. We reserve the right, in our sole discretion, to make changes or modifications to these Terms at any time and for any reason. We will alert you about any changes by updating the most recently updated version of these Terms, and you waive any right to receive specific notice of each such change. It is your responsibility to periodically review these Terms to stay informed of updates. You will be subject to and will be deemed to have been made aware of and to have accepted, the changes in any revised Terms by your continued use of the Services after the date such revised Terms are posted.

We recommend that you print a copy of these Terms for your record.

The information provided when using the Services is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject us to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access the Services from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable.

Our intellectual property

We are the owner or the licensee of all intellectual property rights in our Services, including all source code, databases, functionality, software, website designs, audio, video, text, photographs, and graphics in the Services (collectively, the ‘Content’), as well as the trademarks, service marks, and logos contained therein (the ‘Marks’).

Our Content and Marks are protected by copyright and trademark laws (and various other intellectual property rights and unfair competition laws) and laws in New Zealand and around the world.

The Content and Marks are provided in or through the Services ‘AS IS’ for your commercial purposes only.

Your use of our Services

Subject to your compliance with these Terms, including the ‘prohibited activities’ section below, we grant you a non-exclusive, non-transferable, revocable licence to access the Services; and download or print a copy of any portion of the Content to which you have properly gained access.

Except as set out in this section or elsewhere in our Terms, no part of the Services and no Content or Marks may be copied, reproduced, aggregated, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, distributed, sold, licensed, or otherwise exploited for any commercial purpose whatsoever, without our express prior written permission.

If you wish to use the Services, Content, or Marks other than as set out in this section or elsewhere in our Terms, please email your request to admin@modernconsulting.co.nz.

If we ever grant you permission to post, reproduce, or publicly display any part of our Services or Content, you must identify us as the owners or licensors of the Services, Content, or Marks and ensure that any copyright or proprietary notice appears or is visible on posting, reproducing, or displaying our Content.

We reserve all rights not expressly granted to you in and to the Services, Content, and Marks.

Any breach of these Intellectual Property Rights will constitute a material breach of our Terms and your right to use our Services will terminate immediately.

Your submissions and contributions

Please review this section and the ‘Prohibited Activities’ section carefully prior to using our Services to understand the (a) rights you give us and (b) obligations you have when you upload any content through the Services.

Submissions

By providing us with any project documentation, information, question, comment, suggestion, idea, feedback, or other information about the Services (‘Submissions’), you agree to allow us access to the Submission and be entitled to its unrestricted use and dissemination for any lawful purpose, commercial or otherwise.

Your Responsibilities

By sending us Submissions and/or posting Contributions through any part of the Services or making Contributions accessible through the Services by linking your account through the Services to any of your social networking accounts, you confirm that

•         you have read and agree with our ‘PROHIBITED ACTIVITIES’ statement and will not post, send, publish, upload, or transmit through the Services any Submission nor post any Contribution that is illegal, harassing, hateful, harmful, defamatory, obscene, bullying, abusive, discriminatory, threatening to any person or group, sexually explicit, false, inaccurate, deceitful, or misleading; to the extent permissible by applicable law,
•         you have the necessary rights and licences to make the Submissions

We retain the right to remove or edit your Content at any time without notice if in our reasonable opinion, we consider such Contributions harmful or in breach of these Terms. If we remove or edit any such Contributions, we may also suspend or disable your account and report you to the authorities.

Copyright infringement

We respect the intellectual property rights of others. If you believe that any material available on or through the Services infringes upon any copyright you own or control, please refer to the COPYRIGHT INFRINGEMENTS section below.

By using the Services, you represent and warrant that:

(1)    all registration information you submit is true, accurate, current, and complete;

(2)    you will maintain the accuracy of such information and promptly update such registration information as necessary;

(3)    you have the capacity to agree to and comply with these Terms;

(4)    you are not a minor in the jurisdiction in which you reside;

(5)    you will not access the Services through automated or non-human means, whether through a bot, script or otherwise;

(6)    you will not use the Services for any illegal or unauthorised purpose; and

(7)    your use of the Services will not violate any applicable law or regulation.

If you provide any information that is untrue, inaccurate, not current, or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof).

You may be required to register to use the Services. You agree to keep your password confidential and will be responsible for all use of your account and password. We reserve the right to remove, reclaim, or change a username you select if we determine, in our sole discretion, that such username is inappropriate, obscene, or otherwise objectionable.

We accept the following forms of payment:

•         bank transfer

Payment by invoice is due within 7 days of the date of issue.

You agree to provide current, complete, and accurate purchase and account information for all purchases made via the Services. You further agree to promptly update account and payment information, including email address, payment method, and payment card expiration date, so that we can complete your transactions and contact you as needed. Sales tax will be added to the price of purchases as deemed required by us. We may change prices at any time. All payments shall be in New Zealand Dollars (NZD).

You agree to pay all charges at the prices then in effect for your purchases and any applicable shipping fees, and you authorise us to charge your chosen payment provider for any such amounts upon placing your order. We reserve the right to correct any errors or mistakes in pricing, even if we have already requested or received payment.

We reserve the right to refuse any order placed through the Services.

All sales are final, and no refund will be issued, except at the sole discretion of MCM.

MCM guarantees our trade schedules are accurate to within a 10% margin of error. To support this guarantee, we state that,

1. All trade schedules are completed and peer-reviewed by qualified quantity surveyors.
2. Drawing updates are measured at no additional cost.
3. Where reasonably accessible and local to an MCM employee, site measures can be undertaken at no additional cost.
4. To a reasonable number per project, variations or site instructions are measured at no additional cost.

You may not access or use the Services for any purpose other than that for which we make the Services available. The Services may not be used in connection with any commercial endeavours except those specifically endorsed or approved by us.

As a user of the Services, you agree not to:

• Systematically retrieve data or other content from the Services to create or compile, directly or indirectly, a collection, compilation, database, or directory without written permission from us.
• Trick, defraud, or mislead us and other users, especially in any attempt to learn sensitive account information such as user passwords.
• Circumvent, disable, or otherwise interfere with security-related features of the Services, including features that prevent or restrict the use or copying of any Content or enforce limitations on the use of the Services and/or the Content contained therein.
• Disparage, tarnish, or otherwise harm, in our opinion, us and/or the Services.
• Use any information obtained from the Services in order to harass, abuse, or harm another person.
• Make improper use of our support services or submit false reports of abuse or misconduct.
• Use the Services in a manner inconsistent with any applicable laws or regulations.
• Engage in unauthorised framing of or linking to the Services.
• Upload or transmit (or attempt to upload or to transmit) viruses, Trojan horses, or other material, including excessive use of capital letters and spamming (continuous posting of repetitive text), that interferes with any party’s uninterrupted use and enjoyment of the Services or modifies, impairs, disrupts, alters, or interferes with the use, features, functions, operation, or maintenance of the Services.
• Engage in any automated use of the system, such as using scripts to send comments or messages, or using any data mining, robots, or similar data gathering and extraction tools.
• Delete the copyright or other proprietary rights notice from any Content.
• Attempt to impersonate another user or person or use the username of another user.
• Upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including without limitation, clear graphics interchange formats (‘gifs’), 1×1 pixels, web bugs, cookies, or other similar devices (sometimes referred to as ‘spyware’ or ‘passive collection mechanisms’ or ‘pcms’).
• Interfere with, disrupt, or create an undue burden on the Services or the networks or services connected to the Services.
• Harass, annoy, intimidate, or threaten any of our employees or agents engaged in providing any portion of the Services to you.
• Attempt to bypass any measures of the Services designed to prevent or restrict access to the Services, or any portion of the Services.
• Copy or adapt the Services’ software, including but not limited to Flash, PHP, HTML, JavaScript, or other code.
• Except as permitted by applicable law, decipher, decompile, disassemble, or reverse engineer any of the software comprising or in any way making up a part of the Services.
• Except as may be the result of standard search engine or Internet browser usage, use, launch, develop, or distribute any automated system, including without limitation, any spider, robot, cheat utility, scraper, or offline reader that accesses the Services, or use or launch any unauthorised script or other software.
• Use a buying agent or purchasing agent to make purchases on the Services.
• Make any unauthorised use of the Services, including collecting usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited emails, or creating user accounts by automated means or under false pretences.
• Use the Services as part of any effort to compete with us or otherwise use the Services and/or the Content for any revenue-generating endeavour or commercial enterprise.
• Sell or otherwise transfer your profile.
• Use the Services to advertise or offer to sell goods and services.

Use Licence

If you access the Services via the Project Database, then we grant you a revocable, non-exclusive, non-transferable, limited right to install and use the Project Database on wireless electronic devices owned or controlled by you, and to access and use the Project Database on such devices strictly in accordance with the terms and conditions of this licence contained in these Terms.

You shall not:

(1)    except as permitted by applicable law, decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the Project Database;

(2)    make any modification, adaptation, improvement, enhancement, translation, or derivative work from the Project Database;

(3)    violate any applicable laws, rules, or regulations in connection with your access or use of the Project Database;

(4)    remove, alter, or obscure any proprietary notice (including any notice of copyright or trademark) posted by us or the licensors of the Project Database;

(5)    use the Project Database for any revenue-generating endeavour, commercial enterprise, or other purpose for which it is not designed or intended;

(6)    make the Project Database available over a network or other environment permitting access or use by multiple devices or users at the same time;

(7)    use the Project Database for creating a product, service, or software that is, directly or indirectly, competitive with or in any way a substitute for the Project Database;

(8)    use the Project Database to send automated queries to any website or to send any unsolicited commercial email; or

(9)    use any proprietary information or any of our interfaces or our other intellectual property in the design, development, manufacture, licensing, or distribution of any applications, accessories, or devices for use with the Project Database.

We reserve the right, but not the obligation, to:

(1)    monitor the Services for violations of these Terms;

(2)    take appropriate action against anyone who, in our sole discretion, violates the law or these Terms, including without limitation, reporting such user to law enforcement authorities;

(3)    in our sole discretion and without limitation, refuse, restrict access to, limit the availability of, or disable (to the extent technologically feasible) any of your Contributions or any portion thereof;

(4)    in our sole discretion and without limitation, notice, or liability, to remove from the Services or otherwise disable all files and content that are excessive in size or are in any way burdensome to our systems; and

(5)    otherwise manage the Services in a manner designed to protect our rights and property and to facilitate the proper functioning of the Services..

We care about data privacy and security. Please review our Privacy Policy: By using the Services, you agree to be bound by our Privacy Policy, which is incorporated into these Terms.

We respect the intellectual property rights of others. If you believe that any material available on or through the Services infringes upon any copyright you own or control, please immediately notify us using the contact information provided below (a ‘Notification’). A copy of your Notification will be sent to the person who posted or stored the material addressed in the Notification. Please be advised that pursuant to applicable law you may be held liable for damages if you make material misrepresentations in a Notification. Thus, if you are not sure that material located on or linked to by the Services infringes your copyright, you should consider first contacting a lawyer.

These terms shall remain in full force and effect while you use the Services. Without limiting any other provision of these terms, we reserve the right to, in our sole discretion and without notice or liability, deny access to and use of the services (including blocking certain IP addresses), to any person for any reason or for no reason, including without limitation for breach of any representation, warranty, or covenant contained in these terms or of any applicable law or regulation. We may terminate your use or participation in the services or delete your account and any content or information that you posted at any time, without warning, in our sole discretion.

If we terminate or suspend your account for any reason, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your account, we reserve the right to take appropriate action, including without limitation pursuing civil, criminal, and injunctive redress.

We reserve the right to change, modify, or remove the contents of the Services at any time or for any reason without notice at our sole discretion. However, we have no obligation to update any information on our Services. We will not be liable to you or any third party for any modification, price change, suspension, or discontinuance of the Services.

We cannot guarantee the Services will be available at all times. We may experience hardware, software, or other problems or need to perform maintenance related to the Services, resulting in interruptions, delays, or errors. We reserve the right to change, revise, update, suspend, discontinue, or otherwise modify the Services at any time or for any reason without notice to you. You agree that we have no liability whatsoever for any loss, damage, or inconvenience caused by your inability to access or use the Services during any downtime or discontinuance of the Services. Nothing in these Terms will be construed to obligate us to maintain and support the Services or to supply any corrections, updates, or releases in connection therewith.

These Terms shall be governed by and defined following the laws of New Zealand. Modern Consulting and yourself irrevocably consent that the courts of New Zealand shall have exclusive jurisdiction to resolve any dispute which may arise in connection with these Terms.

Informal Negotiations

To expedite resolution and control the cost of any dispute, controversy, or claim related to these Terms (each a ‘Dispute’ and collectively, the ‘Disputes’) brought by either you or us (individually, a ‘Party’ and collectively, the ‘Parties’), the Parties agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least thirty (30) days before initiating arbitration. Such informal negotiations commence upon written notice from one Party to the other Party.

Binding Arbitration

Any dispute arising out of or in connection with these Terms, including any question regarding its existence, validity, or termination, shall be referred to and finally resolved by the International Commercial Arbitration Court under the European Arbitration Chamber (Belgium, Brussels, Avenue Louise, 146) according to the Rules of this ICAC, which, as a result of referring to it, is considered as the part of this clause. The number of arbitrators shall be 2. The seat, or place, or arbitration shall be Christchurch, New Zealand. The language of the proceedings shall be English. The governing law of these Terms shall be the substantive law of New Zealand.

Restrictions

The Parties agree that any arbitration shall be limited to the Dispute between the Parties individually. To the full extent permitted by law,

1.     no arbitration shall be joined with any other proceeding;
2.     there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilise class-action procedures; and
3.     there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.

Exceptions to Informal Negotiations and Arbitration

The Parties agree that the following Disputes are not subject to the above provisions concerning informal negotiations binding arbitration: (a) any Disputes seeking to enforce or protect, or concerning the validity of, any of the intellectual property rights of a Party; (b) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorised use; and (c) any claim for injunctive relief. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.

Information on the Services, including descriptions, pricing, availability, and various other information, may contain typographical errors, inaccuracies, or omissions. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update the information on the Services at any time without prior notice.

The services are provided on an as-is and as-available basis. You agree that your use of the services will be at your sole risk. To the fullest extent permitted by law, we disclaim all warranties, express or implied, in connection with the services and your use thereof, including, without limitation, the implied warranties of merchantability, fitness for a particular purpose, and non-infringement. We make no warranties or representations about the accuracy or completeness of the services’ content or the content of any websites or mobile applications linked to the services and we will assume no liability or responsibility for any

(1)    errors, mistakes, or inaccuracies of content and materials,

(2)    personal injury or property damage, of any nature whatsoever, resulting from your access to and use of the services,

(3)    any unauthorised access to or use of our secure servers and/or any and all personal information and/or financial information stored therein,

(4)    any interruption or cessation of transmission to or from the services,

(5)    any bugs, viruses, trojan horses, or the like which may be transmitted to or through the services by any third party, and/or

(6)    any errors or omissions in any content and materials or for any loss or damage of any kind incurred as a result of the use of any content posted, transmitted, or otherwise made available via the services.

We do not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party through the services, any hyperlinked website, or any website or mobile application featured in any banner or other advertising, and we will not be a party to or in any way be responsible for monitoring any transaction between you and any third-party providers of products or services. As with the purchase of a product or service through any medium or in any environment, you should use your best judgement and exercise caution where appropriate.

In no event will we or our directors, employees, or agents be liable to you or any third party for any direct, indirect, consequential, exemplary, incidental, special, or punitive damages, including lost profit, lost revenue, loss of data, or other damages arising from your use of the Services, even if we have been advised of the possibility of such damages.

We will maintain certain data that you transmit to the Services for the purpose of managing the performance of the Services, as well as data relating to your use of the Services. Although we perform regular routine backups of data, you are solely responsible for all data that you transmit or that relates to any activity you have undertaken using the Services. You agree that we shall have no liability to you for any loss or corruption of any such data, and you hereby waive any right of action against us arising from any such loss or corruption of such data.

Visiting the Services, sending us emails, and completing online forms constitute electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email and on the Services, satisfy any requirement that such communication be in writing. You hereby agree to the use of electronic signatures, contracts, orders, and other records, and to the electronic delivery of notices, policies, and records of transactions initiated or completed by us or via the services. You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.

These Terms and any policies or operating rules posted by us on the Services or in respect to the Services constitute the entire agreement and understanding between you and us. Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. These Terms operate to the fullest extent permissible by law. We may assign any or all of our rights and obligations to others at any time. We shall not be responsible or liable for any loss, damage, delay, or failure to act caused by any cause beyond our reasonable control. If any provision or part of a provision of these Terms is determined to be unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions. There is no joint venture, partnership, employment or agency relationship created between you and us as a result of these Terms or use of the Services. You agree that these Terms will not be construed against us by virtue of having drafted them. You hereby waive any and all defences you may have based on the electronic form of these Terms and the lack of signing by the parties hereto to execute these Terms.

In order to resolve a complaint regarding the Services or to receive further information regarding use of the Services, please contact us at:

Via phone at 020 4015 7958

Via email at admin@modernconsulting.co.nz

Via mail addressed to Modern Consulting Limited, 71 Orbell St, Sydenham, Christchurch, New Zealand.