JACKCO TERMS OF USE (July 2017)

1. DEFINITIONS

In this document, unless the context requires otherwise:

Affiliates means our employees and other staff, contractors, officers, directors, agents, advisers, and related companies (as defined in s 2 of the Companies Act 1993).

Agreement means this agreement as updated or amended from time to time in accordance with its terms.

Contractor means a trade-person, business, supplier or other party registered with us to receive Job Requests and provide information for Proposals, and may include sub-contractors or other parties providing products or services on behalf of a Contractor.

Deposit means the deposit payable by you on acceptance of a Proposal.

Job means one or more products and services agreed to be supplied by a Contractor to you following acceptance of a Proposal.

Job Request means a request for a Proposal, made by or for you through the Site (or otherwise via us).

Proposal means a proposal or outline prepared by us based on Contractor responses to a Job Request, and includes documentation and other information relating to the proposal or outline such as quotes, proposals, estimates, drawings, plans, specifications, brochures, timetables and instructions.

Service means any service or facility provided by us via the Site or any other channel (including email), and includes any written or verbal communications or other services with us in respect of a Job Request, Proposal or Job.

Site means our website and system available at [ www.jackco.co.nz ].

2. ACCEPTANCE

2.1. We offer the Service on the basis of this Agreement. By registering to use the Service or by accessing or using the Service, you acknowledge that you have read this Agreement and agree to be bound by all of its terms and conditions.

2.2. We may amend this Agreement in whole or in part from time-to-time. Amendments will be effective upon posting of the amended Agreement on this site. You are responsible for ensuring you have read and agree to the most recent Agreement. Your continued use of the Service will represent your agreement to be bound by the Agreement as amended.

3. SERVICE[A1] [A2] 

3.1. [Description of what you do and are responsible for, what “the Service” is. E,g The Service is a platform intended to assist you to obtain Proposals and engage Contractors to carry out Jobs. We will not be involved in carrying out the Job or related tasks. For the avoidance of doubt, we will not be a party to any contract between you and a Contractor in respect of a Job and we are not responsible for (and do not warrant or guarantee) a Contractor’s products or services. All of your dealings with a Contractor are at your own risk.]

3.2. Without limiting clause 3.1, we are not involved in matters beyond providing the Service to you, including (without limitation):

(a) Reviewing and assessing Job Requests and Proposals;

(b) Providing advice;

(c) Arranging consents or approvals;

(d) Organising or performing a Job;

(e) Project management in relation to a Job;

(f) Performing or arranging support or follow-up work; or

(g) Handling complaints or resolving disputes between you and a Contractor (or third parties).

3.3. We are an independent service provider. In providing you with the Service, we are not acting as the agent or representative of you or any party.

3.4. We may receive commission or other payments from Contractors and other parties in respect of accepted Proposals and other services we provide. You acknowledge that we are not required to disclose any commissions or payments to you.

3.5. We may suspend or discontinue the Service in whole or in part, or terminate your use of the Service, at any time without notice.

4. JOB REQUESTS

4.1. You must ensure that each Job Request submitted by you includes all relevant information to enable a Contractor to properly consider, scope and cost the request and provide us with information for a Proposal.

4.2. You are solely responsible for the contents of your Job Requests. We may assist you with aspects of a Job Request but in doing so we are not assuming any responsibility, nor making any representations, nor to be taken as providing advice. Neither we nor any Contractor are under any obligation to review, check the accuracy of, or advise on the merits, viability or completeness of any Job Request or the suitability of a particular Contractor for carrying out the Job.

4.3. You warrant that each Job Request submitted you is for lawful/permitted works only, is complete, accurate and not misleading in any respect, does not infringe copyright or any other intellectual property rights, and complies with all applicable laws and regulations.

4.4. We may provide a Job Request to one or more Contractors at our discretion for the purpose of obtaining information for preparing a Proposal. Otherwise, we may decline a Job Request.

4.5. Our provision of a Job Request to a Contractor is not an endorsement of the Job Request or the Contractor, nor a representation as to the Contractor’s ability to carry out the Job Request. You acknowledge that we are not required to vet or otherwise investigate a Contractor’s ability or suitability to carry out a Job prior to providing them with a Job Request.

5. PROPOSALS

5.1. We may prepare a Proposal based on information received and collated by us from one or more Contractors.

5.2. A Proposal is provided to you for the sole purpose of allowing you to consider, evaluate and seek advice on a proposed solution or supply of products/services. A Proposal must not be used or relied on for any other purpose.

5.3. You acknowledge that a Proposal is based on information received and collated by us from one or more Contractors, and that we do not (nor do have we responsibility to) assess the merits, suitability, accuracy, legality, or completeness of a Proposal, or any aspect of it, nor compliance with the Job Request, nor the expertise or suitability of the Contractor. We are not liable for any statement, omission or representation in a Proposal.

5.4. You acknowledge that nothing in a Proposal, nor any separate communication from us, constitutes or shall be taken as:

(a) Professional advice;

(b) The provision of or offer to provide any product or service by us (other than your use of the Site);

(c) A recommendation or endorsement as to the Proposal, any product, service, solution, or Contractor;

(d) A representation as to the suitability, viability, legality, accuracy, completeness or other aspect of the Proposal or any aspect of it

from us to you, and nor shall anything in a Proposal:

(e) Vary, waive or alter the interpretation of anything in this Agreement; or

(f) Create or expand any warranty or representation by us.

5.5. You must carefully review a Proposal prior to acceptance. You are solely responsible for researching, checking and assessing all aspects of the Proposal (which may require seeking further information), including without limitation:

(a) Viability and fitness for your intended purpose;

(b) Quality and suitability of materials, products, designs and methods;

(c) Compliance with your general and specific requirements, and all applicable laws and regulations;

(d) Consents and other approvals or notifications required for the Job (and compliance with any such consents and approvals);

(e) Timetable and cost considerations;

(f) Conditions, disclaimers and special notes contained in the Proposal;

(g) Any warranties, guarantees or other securities;

(h) The Contractor’s terms of engagement, abilities, expertise, history and security (including financial stability).

If you have any questions or concerns about any aspect of a Proposal, you must obtain advice from the Contractor and/or a suitably qualified independent advisor prior to acceptance.

5.6. A Proposal may include (or refer to) the Contractor’s terms of engagement. Such terms will form part of the contract between you and the Contractor upon acceptance of the Proposal, provided that nothing in the Contractor’s terms affects this Agreement.

5.7. A Proposal is confidential to you and may not be disclosed to any other party or copied without our prior written consent.

5.8. We may withdraw or amend a Proposal at time prior to acceptance.

5.9. You must record your acceptance of a Proposal through the Service in the manner prescribed by us. Upon your acceptance of a Proposal :

(a) We may invoice you for the Deposit on behalf of the relevant Contractor, which must be paid in the manner stated in the invoice; and

(b) A contract will be formed between you and the Contractor on the basis of the Proposal (including the Contractor’s terms of engagement), provided that the Contractor shall not be obliged to take any steps prior to the Deposit being paid and may cancel the contract prior to commencement.

5.10. We may collect the Deposit on behalf of the Contractor, in which case we warrant that we will pay the Deposit to the Contractor, however in no case shall we be liable to refund any part of the Deposit (or any other amount) in the event of any -performance or any other dispute between you and Contractor.

6. CONTRACTOR FEEDBACK

6.1. If we provide a mechanism for you to provide feedback on a Contractor, we may publish your feedback on the Site (or through another channel) either under your name or anonymously.

6.2. You warrant that all feedback is true, accurate and fair, and any opinions expressed are your honest opinion. You must not provide any feedback that is derogatory or defamatory of a Contractor or any other person.

6.3. We reserve the right to edit, decline to publish, or remove any feedback, at any time and in our sole discretion.

6.4. We may provide Contractors with a right-of-reply, and we may publish any such replies together with your feedback.

7. INTELLECTUAL PROPERTY[A11] 

7.1. Title, ownership, and copyright in any material provided by us, including but not limited to Proposals, documentation and information that is incorporated into the Service or the Site, shall remain at all times with us or the owner. You agree that you will not question or dispute the ownership by us and/or our licensors of these intellectual property rights.

7.2. We are not responsible for vetting or seeking clearance for any intellectual property supplied to us by a Contractor and incorporated into a Proposal, and we make no warranty or representation as to non-infringement of any third party’s intellectual property rights.

8. PRIVACY

8.1. We collect, use and disclose personal information as outlined in our privacy policy.

9. WARRANTIES AND LIABILITY

9.1. The Service, the Site and all related materials, features, components, information and output available through the Service or the Site are provided strictly on an “as is” and “as available” basis and at your own sole risk, and we do not warrant or represent that the Service or the Site will be uninterrupted or error-free, or that any information, data or other output is complete, correct or up-to-date.

9.2. To the fullest extent permitted by law, any condition or warranty that is not expressly recorded in this document is excluded from this Agreement, including, without limitation, any implied warranties of merchantability and fitness for purpose, and no oral or written information or advice given by any representative or Affiliate shall create a warranty or condition or in any way increase the scope of an existing warranty or condition.

9.3. To the fullest extent permitted by law, we and our Affiliates shall in no circumstances be liable at common law (including negligence or equity) or otherwise for any loss, damage, cost, expenses, liability, injury or other matter arising in connection with:

(a) Your use of the Site or Service;

(b) The contents of a Job Request, Proposal or any other document;

(c) The carrying out (or failure to carry out) of a Job;

(d) Any act, omission or representation of a Contractor or other third party (including negligence or total failure to perform); or

(e) The performance (or non-performance) of any products or services

even if we have been advised of the same.

9.4. Without limiting clauses 9.1 to 9.3, neither we nor our Affiliates shall in any circumstance be liable for:

(a) Any loss or damage arising by reason of any delay in the completion or delivery of a Proposal or Job;

(b) Any loss of profits or loss of revenues or loss of deposit;

(c) Any indirect or consequential loss;

(d) Any loss or damage resulting from any errors or omissions arising from incorrect information provided by you or a Contractor, or failure by you or a Contractor to provide information, or an oversight or a misinterpretation of any instructions;

(e) Any fine or penalty imposed on you; or

(f) Any loss or damage caused in part or in full by the act or omission of you or a third party.

9.5. Unless expressly agreed otherwise, you acknowledge that we are not the supplier (nor responsible for procuring the supply) of any goods or services supplied under any contract between you and a Contractor or third party.

9.6. We are not responsible, and shall not be liable, for any claim relating to or arising from any representations, warranties or conditions made (or purported to be made) or conveyed by any agent or representative of us, or any Contractor or other party, which is not expressly confirmed by us in writing.

9.7. In the event that we are liable to you for any reason, whether in contract, tort (including negligence) or otherwise, our total liability shall not exceed $1,000.

9.8. You agree to indemnify us and our Affiliates against any liability, costs, losses, claims, or damages (including legal fees and disbursements on a solicitor-client basis) arising in any way from or in connection with:

(a) Your breach of this Agreement;

(b) Non-payment of any amount when due or any action taken by or against us as a result;

(c) Any dispute between you and a Contractor (or you and any other party); or

(d) Any claim or demand (or threatened claim or demand) by a Contractor or other party in connection with a Job or otherwise arising from your use of the Service.

10. DISPUTES

10.1. You acknowledge and agree that:

(a) We are not responsible for the performance, non-performance or other conduct of Contractors or other parties (including time and cost issues); and

(b) We have no obligation to investigate, intervene in or mediate any complaint or dispute between you and a Contractor or other party, nor to provide documents or information relating to a complaint or dispute.

10.2. Any complaint or dispute relating to a Proposal or Job, or the performance (or non-performance) or other conduct of a Contractor or other party, must be raised and resolved directly between you and that Contractor or other party alone. You must not involve (or attempt to involve) us in any such matter.

10.3. If there is a dispute between you and us, that cannot be settled by informal direct negotiation, the dispute shall be handled as follows:

(a) If a party considers that a dispute has arisen, that party must promptly send a notice to the other party setting out a full description of the matters in dispute or over which there is a difference.

(b) The parties must attempt to resolve the dispute in good faith.

(c) If the dispute is not resolved within 30 calendar days of the notice, or any longer time the parties may agree, either party may initiate legal proceedings.

(d) Neither party may initiate any legal proceedings (except applications for urgent interim relief, or non-payment of any monies owing by you) until the procedures set out in this clause have been followed.

10.4. No action arising out of or in connection with this Agreement or any Proposal or Job, regardless of form, may be brought more than 12 months after the cause of action arose.

11. GENERAL

11.1. This Agreement represents the whole of the contract and understanding between the parties, and replaces any prior agreements and understandings whether written, oral or both, with respect to the subject matter of this Agreement.

11.2. Except as provided in clause 3.2, the provisions of the Agreement shall not be varied except by agreement in writing signed by each party. Any document supplied by you or a Contractor which purports to modify or supplement any provision of this Agreement shall be of no effect without each parties’ express written approval.

11.3. If one or more of the provisions or part of any provision of this Agreement is held invalid or unenforceable, such holding shall not invalidate or render unenforceable any other provision or other part of any provision of this Agreement and shall be severed from this agreement so that the remaining provisions or other part of any provision shall remain in full force and effect shall be valid and enforceable to the fullest extent permitted by law.

11.4. No failure or delay by us to exercise any power, remedy or right in relation to this agreement shall:

(a) Prejudice, limit or affect or operate as a waiver of that power, remedy or right; or

(b) Be deemed to waive any default or breach of any obligation, liability or agreement.

11.5. The exercise or partial exercise of any power, remedy or right by us shall be without prejudice to our right to exercise that or any other power, remedy or right at the same time or in the future.

11.6. You must not transfer or assign any of your liabilities or rights under this Agreement to any other person without our prior written consent. We may transfer or assign part or all of our rights and obligations under this Agreement to another party upon notice to you.

11.7. We shall not be liable for any delay or failure to perform any obligation caused directly or indirectly by an event beyond our reasonable control. Those events include but are not limited to acts of God, acts of government, labour disputes or shortages, unavailability of parts, equipment failure, communications failure, component failure, late or non-delivery by a supplier, or performance (or non-performance) of a Contractor.

11.8. This Agreement shall be construed in accordance with and governed by the laws of New Zealand and the parties irrevocably submit to the non-exclusive jurisdiction of the New Zealand courts.

11.9. Nothing in this Agreement nor the provision of the Service shall be construed as a partnership or fiduciary relationship between the parties or their successors or assignees.

12. GENERAL RULES OF INTERPRETATION

12.1. Singular words include the plural and vice versa, and where a word or phrase is defined, its other grammatical forms have a corresponding meaning.

12.2. References to any party shall mean and include a reference to that party, its successors, executors or personal representatives (as the case may be), and transferees.

12.3. Where more parties than one are covenanting parties, the covenants expressed or implied on this Agreement bind the covenanting parties jointly and each of them severally.

12.4. Any reference to legislation, statute, regulation, ruling, code, or rules includes reference to any modification, substitute for, consolidation or re-enactment of it and any regulation, order in council or other instrument from time to time made or issued under such legislation, statute, regulation, ruling, code, or rules.

12.5. Headings are for convenience only and do not affect the interpretation of this Agreement except for use as cross-references.

12.6. Any covenant not to do anything shall also constitute an obligation not to suffer, permit, cause or assist any other person to do that thing.

12.7. Unless otherwise stated, references to prices, fees and payments shall be exclusive of GST and any other taxes or levies, freight charges, insurance charges and storage costs.

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