Website Terms and Conditions of Use

. About the Website
1. . Welcome to https://www.rotaru.com.au/ (the 'Website '). The Website provides civil, structural engineering, structural inspections and pre-purchase building inspections (the 'Services').
2. . The Website is operated by Rotaru Building Consultants (ABN 65 448 639 498)

. Access to and use of the Website, or any of its associated Products or Services, is provided by Rotaru Building Consultants. Please read these terms and conditions (the 'Terms') carefully. By using, browsing and/or reading the Website, this signifies that you have read, understood and agree to be bound by the Terms. If you do not agree with the Terms, you must cease usage of the Website, or any of Services, immediately.

. Rotaru Building Consultants reserves the right to review and change any of the Terms by updating this page at its sole discretion. When Rotaru Building Consultants updates the Terms, it will use reasonable endeavours to provide you with notice of updates to the Terms. Any changes to the Terms take immediate effect from the date of their publication. Before you continue, we recommend you keep a copy of the Terms for your records.

. Acceptance o the Terms

You accept the Terms by remaining on the Website. You may also accept the Terms by clicking to accept or agree to the Terms where this option is made available to you by Rotaru Building Consultants in the user interface.

. Registration to use the Services
1. . In order to access the Services, you must first register for an account through the Website (the 'Account').
2. . As part of the registration process, or as part of your continued use of the Services, you may be required to provide personal information about yourself (such as identification or contact details), including:
  1. Email address
  2. Mailing address
  3. Telephone number
  4. Full name
3. . You warrant that any information you give to Rotaru Building Consultants in the course of completing the registration process will always be accurate, correct and up to date.
4. . Once you have completed the registration process, you will be a registered member of the Website ('Member ') and agree to be bound by the Terms.
5. . You may not use the Services and may not accept the Terms if:

you are not of legal age to form a binding contract with Rotaru Building Consultants; or
you are a person barred from receiving the Services under the laws of Australia or other countries including the country in which you are resident or from which you use the Services.

. Your obligations as a Member
1. . As a Member, you agree to comply with the following:
  1. you will use the Services only for purposes that are permitted by:
    1. the Terms; and
    2. any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions;
  2. you have the sole responsibility for protecting the confidentiality of your password and/or email address. Use of your password by any other person may result in the immediate cancellation of the Services;
  3. any use of your registration information by any other person, or third parties, is strictly prohibited. You agree to immediately notify Rotaru Building Consultants of any unauthorised use of your password or email address or any breach of security of which you have become aware;
  4. access and use of the Website is limited, non-transferable and allows for the sole use of the Website by you for the purposes of Rotaru Building Consultants providing the Services;
  5. you will not use the Services or the Website in connection with any commercial endeavours except those that are specifically endorsed or approved by the management of Rotaru Building Consultants;
  6. you will not use the Services or Website for any illegal and/or unauthorised use which includes collecting email addresses of Members by electronic or other means for the purpose of sending unsolicited email or unauthorised framing of or linking to the Website;
  7. you agree that commercial advertisements, affiliate links, and other forms of solicitation may be removed from the Website without notice and may result in termination of the Services. Appropriate legal action will be taken by Rotaru Building Consultants for any illegal or unauthorised use of the Website; and
  8. you acknowledge and agree that any automated use of the Website or its Services is prohibited.
. Payment
1. . Where the option is given to you, you may make payment for the Services (the ' Services Fee ') by way of:
  1. PayPal ('PayPal')
2. . All payments made in the course of your use of the Services are made using PayPal. In using the Website, the Services or when making any payment in relation to your use of the Services, you warrant that you have read, understood and agree to be bound by the PayPal terms and conditions which are available on their website.
. You acknowledge and agree that where a request for the payment of the Services Fee is returned or denied, for whatever reason, by your financial institution or is unpaid by you for any other reason, then you are liable for any costs, including banking fees and charges, associated with the Services Fee.
. You agree and acknowledge that Rotaru Building Consultants can vary the Services Fee at any time.
. Refund Policy

Rotaru Building Consultants will only provide you with a refund of the Services Fee in the event they are unable to continue to provide the Services or if the manager of Rotaru Building Consultants makes a decision, at its absolute discretion, that it is reasonable to do so under the circumstances (the 'Refund ').

. Copyright and Intellectual Property
1. . The Website, the Services and all of the related products of Rotaru Building Consultants are subject to copyright. The material on the Website is protected by copyright under the laws of Australia and through international treaties.

Unless otherwise indicated, all rights (including copyright) in the Services and compilation of the Website (including but not limited to text, graphics, logos, button icons, video images, audio clips, Website, code, scripts, design elements and interactive features) or the Services are owned or controlled for these purposes, and are reserved by Rotaru Building Consultants or its contributors.

. All trademarks, service marks and trade names are owned, registered and/or licensed by Rotaru Building Consultants, who grants to you a worldwide, non- exclusive, royalty-free, revocable license whilst you are a Member to:
1. use the Website pursuant to the Terms;
2. copy and store the Website and the material contained in the Website in your device's cache memory; and
3. print pages from the Website for your own personal and non-commercial use.

Rotaru Building Consultants does not grant you any other rights whatsoever in relation to the Website or the Services. All other rights are expressly reserved by Rotaru Building Consultants.

. Rotaru Building Consultants retains all rights, title and interest in and to the Website and all related Services. Nothing you do on or in relation to the Website will transfer any:
1. business name, trading name, domain name, trade mark, industrial design, patent, registered design or copyright, or
2. a right to use or exploit a business name, trading name, domain name, trade mark or industrial design, or
3. a thing, system or process that is the subject of a patent, registered design or copyright (or an adaptation or modification of such a thing, system or process), to you.
. You may not, without the prior written permission of Rotaru Building Consultants and the permission of any other relevant rights owners: broadcast, republish, up-load to a third party, transmit, post, distribute, show or play in public, adapt or change in any way the Services or third party Services for any purpose, unless otherwise provided by these Terms. This prohibition does not extend to materials on the Website, which are freely available for re-use or are in the public domain.
. Privacy
1. . Rotaru Building Consultants takes your privacy seriously and any information provided through your use of the Website and/or Services are subject to Rotaru Building Consultants's Privacy Policy, which is available on the Website.
. General Disclaimer
1. . Nothing in the Terms limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded.
2. . Subject to this clause, and to the extent permitted by law:
  1. all terms, guarantees, warranties, representations or conditions which are not expressly stated in the Terms are excluded; and
  2. Rotaru Building Consultants will not be liable for any special, indirect or consequential loss or damage (unless such loss or damage is reasonably foreseeable resulting from our failure to meet an applicable Consumer Guarantee), loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Services or these Terms (including as a result of not being able to use the Services or the late supply of the Services), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.
3. . Use of the Website and the Services is at your own risk. Everything on the Website and the Services is provided to you "as is" and "as available" without warranty or condition of any kind. None of the affiliates, directors, officers, employees, agents, contributors and licensors of Rotaru Building Consultants make any express or implied representation or warranty about the Services or any products or Services (including the products or Services of Rotaru Building Consultants) referred to on the Website. includes (but is not restricted to) loss or damage you might suffer as a result of any of the following:
  1. failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third party conduct, or theft, destruction, alteration or unauthorised access to records;
the accuracy, suitability or currency of any information on the Website, the Services, or any of its Services related products (including third party material and advertisements on the Website);
costs incurred as a result of you using the Website, the Services or any of the products of Rotaru Building Consultants; and
the Services or operation in respect to links which are provided for your convenience.
. Limitation of liability
1. . Rotaru Building Consultants's total liability arising out of or in connection with the Services or these Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the resupply of the Services to you.
2. . You expressly understand and agree that Rotaru Building Consultants, its affiliates, employees, agents, contributors and licensors shall not be liable to you for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss.
. Termination of Contract
1. . The Terms will continue to apply until terminated by either you or by Rotaru Building Consultants as set out below.
2. . If you want to terminate the Terms, you may do so by:
  1. providing Rotaru Building Consultants with 14 days' notice of your intention to terminate; and
  2. closing your accounts for all of the services which you use, where Rotaru Building Consultants has made this option available to you.

Your notice should be sent, in writing, to Rotaru Building Consultants via the 'Contact Us' link on our homepage.

. Rotaru Building Consultants may at any time, terminate the Terms with you if:
1. you have breached any provision of the Terms or intend to breach any provision;
2. Rotaru Building Consultants is required to do so by law;
3. the provision of the Services to you by Rotaru Building Consultants is, in the opinion of Rotaru Building Consultants, no longer commercially viable.
. Subject to local applicable laws, Rotaru Building Consultants reserves the right to discontinue or cancel your membership at any time and may suspend or deny, in its sole discretion, your access to all or any portion of the Website or the Services without notice if you breach any provision of the Terms or any applicable law or if your conduct impacts Rotaru Building Consultants's name or reputation or violates the rights of those of another party.
. Indemnity
1. . You agree to indemnify Rotaru Building Consultants, its affiliates, employees, agents, contributors, third party content providers and licensors from and against:
  1. all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis) incurred, suffered or arising out of or in connection with Your Content;
  2. any direct or indirect consequences of you accessing, using or transacting on the Website or attempts to do so; and/or
  3. any breach of the Terms. 13 . Dispute Resolution
2. . Compulsory:

If a dispute arises out of or relates to the Terms, either party may not commence any Tribunal or Court proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).

. Notice:

A party to the Terms claiming a dispute ('Dispute ') has arisen under the Terms, must give written notice to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute.

. Resolution:

On receipt of that notice ('Notice ') by that other party, the parties to the Terms ('Parties') must:

Within 14 days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree;
If for any reason whatsoever, 14 days after the date of the Notice, the Dispute has not been resolved, the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the President of the Australian Mediation Association or his or her nominee;
The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation;
The mediation will be held in Perth CBD, Australia.

. Confidential:

All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as "without prejudice" negotiations for the purpose of applicable laws of evidence.

. Termination of Mediation:

If 2 weeks have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so.

. Venue and Jurisdiction

The Services offered by Rotaru Building Consultants is intended to be viewed by residents of Australia. In the event of any dispute arising out of or in relation to the Website, you agree that the exclusive venue for resolving any dispute shall be in the courts of Western Australia, Australia.

. Governing Law

The Terms are governed by the laws of Western Australia, Australia. Any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to the Terms and the rights created hereby shall be governed, interpreted and construed by, under and pursuant to the laws of Western Australia, Australia, without reference to conflict of law principles, notwithstanding mandatory rules. The validity of this governing law clause is not contested. The Terms shall be binding to the benefit of the parties hereto and their successors and assigns.

. Independent Legal Advice

Both parties confirm and declare that the provisions of the Terms are fair and reasonable and both parties having taken the opportunity to obtain independent legal advice and declare the Terms are not against public policy on the grounds of inequality or bargaining power or general grounds of restraint of trade.

. Severance

If any part of these Terms is found to be void or unenforceable by a Court of competent jurisdiction, that part shall be severed and the rest of the Terms shall remain in force.

Terms and Conditions

Rotaru Building Consultants

ABN 65 448 639 498

Terms and Conditions

A. DEFINED TERMS

For the purposes of these terms and conditions:

Building Consultant means Rotaru Building Consultants ABN 65 448 639 498;

Building & Site means the inspection of the Property together with the relevant features including any car accommodation, detached laundry, ablution facilities and garden sheds, retaining walls more than 700 mm high, paths and driveways, steps, fencing, earth, embankments, surface water drainage and storm run-off within 30 m of the building, but within the Property boundaries;

Client means, in relation to a Report, the person who instructed the Building Consultant to prepare a Report;

Major Defect means a defect of significant magnitude where rectification has to be carried out in order to avoid unsafe conditions, loss of utility or further deterioration of the Property;

Minor Defect means a defect other than a Major Defect;

Property means, in relation to a Report, the property to which the Report relates;

Readily Accessible Areas means areas which can be easily and safely inspected without injury to person or property, are up to 3.6 metres above ground or floor levels, in roof spaces where the minimum area of accessibility is not less than 600 mm high by 600 mm wide and subfloor spaces where the minimum area of accessibility is not less than 600 mm high by 600 mm wide, providing the spaces or areas permit entry. Or where clearances are not available, areas within the Building Consultant’s unobstructed line of sight and within arm’s length; and

Report has the meaning given in Section B below.

B. SCOPE OF INSPECTION

The Building Consultant will carry out a visual assessment of the Property to identify major defects, urgent and serious safety hazards and to form an opinion regarding the general condition of the Property at the time of inspection. The Building Consultant will report his findings in a written report addressed to the Client (the Report).

The inspection is limited to Readily Accessible Areas of the Building & Site and is based on a visual examination of surface work (excluding furniture and stored items).

The Client shall arrange right of entry, facilitate physical entry and supply necessary information to enable the Building Consultant to undertake the inspection and prepare the Report. Where reasonable access or entry is denied those areas are excluded from and do not form part of the inspection.

The inspection assumes that the existing use of the Property will continue. The inspection will not assess the fitness of the Property for any intended purpose. Any proposed change in use should be verified with the relevant authorities.

The Report is not a certificate of compliance for the Property within the requirements of any applicable law (including any regulation, ordinance or local by-law).

C. ACCEPTANCE CRITERIA

The client, upon making the booking for a property inspection or other Building Report, acknowledges having been given the opportunity to read our Terms & Conditions of service. The client is deemed to have accepted Rotaru Building Consultants Terms and Conditions of Service upon the Inspector arriving at the property or site.

The report is subject to Rotaru Building Consultants Terms and Conditions of Service, which forms the basis of the agreement between Rotaru Building Consultants and the client.

The client accepts that if any money remains unpaid after the due date, the client shall:

a) Pay 15% per annum simple interest on the overdue amounts unpaid after the expiry of 7 days after the payment date.

b) If invoices are unpaid for 7 days after the payment date, we have the right to engage debt collection services for the collection of unpaid and undisputed debt, and the right to commence legal proceedings for any outstanding amounts owed to us.

c) You are liable for and will pay all costs including debt collection, commission, solicitor’s fees and any out of pocket expense. You indemnify us for the full amount of our legal and debt recovery costs.

The Property was compared with a property that was constructed in accordance with the generally accepted practice at the time of construction and which has been maintained such that there has been no significant loss of strength and serviceability.

The Report only records the observations and conclusions of the Building Consultant about the readily observable state of the Property at the time of inspection. The Report, therefore, cannot and does not deal with:

possible concealment of defects, including but not limited to, defects concealed by lack of accessibility, obstructions such as furniture, wall linings and floor coverings, or by applied finishes such as render and paint; and
undetectable or latent defects, including but not limited to, defects that may not be apparent at the time of inspection due to seasonal changes, recent or prevailing weather conditions.

D. LIMITATIONS OF THE PROPERTY INSPECTION AND REPORT CONTENT

The Client acknowledges that:

the Building Consultant will conduct a visual inspection only;
this Report does not include the inspection and assessment of items or matters outside the scope of the requested inspection and Report. Other items or matters may be the subject of a special-purpose inspection report, which is adequately specified;
this Report does not include the inspection and assessment of items or matters that do not fall within the Building Consultant’s direct expertise;
the inspection only covered the Readily Accessible Areas of the Property. The inspection did not include areas, which were inaccessible, not readily accessible or obstructed at the time of inspection (see section E. Accessibility below). Obstructions are defined as any condition or physical limitation which inhibits or prevents inspection and may include – but are not limited to – roofing, fixed ceilings, wall linings, floor coverings, fixtures, fittings, furniture, clothes, stored articles/materials, thermal insulation, sarking, pipe/duct work, builder’s debris, vegetation, pavements or earth;
the Report is prepared in accordance with Australian Standard AS4349.1-2007 (Inspection of Buildings, Part 1: Pre-Purchase Inspections – Residential Buildings), which recognises that a property inspection report is not a warranty against problems developing with the building in the future; and
the Building Consultant is not liable for any reliance placed on this report by any third party.

E. ACCESSIBILITY

Unless specified in writing, the inspection only covered the Readily Accessible Areas of the Property. The inspection did not include areas, which were inaccessible, not readily accessible or obstructed at the time of inspection. Areas, which are not normally accessible, were not inspected and include – but not limited to – the interior of a flat roof or beneath a suspended floor filled with earth.

Building Interior: The Building Consultant did not move or remove any ceilings, wall coverings, floor coverings (including carpeting and wooden floorboards), furnishing, equipment, appliances, pictures or other household goods. In an occupied property, furnishings or household items may be concealing evidence of defects, which may only be revealed when the items are moved or removed.

NOTE. In the case of strata and company title properties or other Class 2 buildings or equivalent, if the inspection was limited to assessing the interior of a particular unit or lot, the Client may have additional liability for defects in the common property. This additional liability can only be addressed through the undertaking of a special-purpose inspection report, which is adequately specified.

Building Exterior, Roof Exterior and Site: the Building Consultant did not move or remove any obstructions such as wall cladding, awnings, trellis, earth, plants, bushes, foliage, stored materials, debris or rubbish, etc. Such items may be concealing defects, which may only be revealed when the items are moved or removed.

Roof Space Obstructions such as roofing, stored articles, thermal insulation, sarking and pipe/duct work may be concealing evidence of defects, which may only be revealed when the obstructions are moved or removed. Also, bodily access should be provided to the interior of all accessible roof spaces. In accordance with Australian Standard AS 4349 the minimum requirement is a 400 mm by 500 mm access manhole.

Subfloor Space Storage of materials in subfloor areas is not recommended as it reduces ventilation and makes inspection difficult. Obstructions may be concealing evidence of defects, which may only be revealed when the obstructions are moved or removed. Bodily access should be provided to all accessible subfloor areas. In accordance with Australian Standard AS 4349 the minimum requirement is a 500 mm x 400 mm access manhole. In the case of suspended floors, if the clearance between the ground and structural components is less than 400 mm, then the ground should be excavated to provide the required clearance, subject to maintaining adequate drainage and support to footings. If the subfloor has been sprayed for subterranean termites or if the area is susceptible to mould growth, appropriate health precautions must be followed before entering the area. Also, special care should be taken not to disturb the treated soil.

F. LIMITATIONS OF BUILDING CONSULTANT’S LIABILITY

The limitations below apply to the maximum extent permitted by law.

The Building Consultant’s liability to the Client shall be limited to (at the option of the Building Consultant):

the provision of a new inspection and report; or
the payment of the cost of a new inspection conducted by a third party

Without limiting the above, the Building Consultant is not liable to the Client for any of the following types of loss or damage, howsoever caused or arising:

any loss of profit, loss of revenue or income, loss or denial of business opportunity or loss of anticipated savings, loss of bargain, loss of contract; or
any special or punitive damages.

The Building Consultant accepts no liability with respect to work carried out by other trades, including consultants or practitioners referred by the Building Consultant. It is the Client’s responsibility to make appropriate contractual arrangements with such persons.

The Building Consultant’s liability arising out of or in connection with the Report terminates on the date that is 6 months after the date of the Report.

If the Client becomes aware of any matter or circumstance that may give rise to a claim against the Building Consultant arising out of or in connection with the Report, the Building Consultant is not liable in respect of the claim unless the Client gives notice to the Building Consultant within 30 days after the Client becomes aware of that matter or circumstance.

G. EXCLUSIONS FROM THE REPORT

The Client acknowledges that the Report does not cover or deal with any of the following:

any individual Minor Defect;
solving or providing costs for any rectification or repair work;
the structural design or adequacy of any element of construction of the property;
detection of wood destroying insects such as termites and wood borers;
the operation of fireplaces and chimneys;
any services including building, engineering (electronic), mechanical, fire and smoke detection;
lighting or energy efficiency;
any swimming pools and associated pool equipment or spa baths and spa equipment or the like;
any appliances such as dishwashers, incinerators, ovens, stoves and ducted vacuum systems;
a review of occupational, health or safety issues such as asbestos content, the provision of safety glass or the use of lead based paints;
a review of environmental or health or biological risks such as toxic mould;
whether the Property complies with the provisions of any building Act, code, regulation(s) or by-laws;
whether the ground on which the Property rests has been filled, is liable to subside, swell or shrink, is subject to landslip or tidal inundation, or if it is flood prone; or
in the case of strata and company title properties, the inspection of common property areas or strata/company records, footings below ground, concealed damp proof course, electrical installations, concealed plumbing, adequacy of roof drainage, gas fittings and fixtures, air-conditioning, automatic garage doors, flues and solid fuel heaters, alarm and intercom systems, soft floor coverings, appliances, paint coating, health hazards, timber and metal framing size and adequacy, concealed tie downs and bracing, other mechanical or electrical equipment such as soil conditions, control joints, sustainable development provisions, concealed timber frames, landscaping, rubbish, floor coverings, furniture and accessories, stored items, insulation, environmental matters or lighting and energy efficiency.

Any of the above matters may be the subject of a special-purpose inspection report, which is adequately specified and undertaken by an appropriately qualified inspector.

H. CLIENT TO RELY ONLY ON THE REPORT

The Report as issued by the Building Consultant takes precedence over any oral advice or draft reports, to the extent of any inconsistencies. The Client acknowledges and agrees that it will rely only on the information and recommendations set out in the Report and will not rely on any express or implied representation made by or on behalf of the Building Consultant.

I. COMPLAINTS PROCEDURE

If the Client is dissatisfied in any way with the Report then, before taking any remedial action or incurring any costs, the Client agrees to:

promptly give the Building Consultant written notice within 30 days of the date of the Report, specifying the matters about which the Client is dissatisfied; and
allow the Building Consultant the opportunity to resolve the complaint within 30 days of receipt by the Building Consultant of that written notice.

J. ENTIRE AGGREEMENT

These terms and conditions constitute the entire agreement between the Building Consultant and the Client relating to the inspection and the Report and supersede all previous agreements, whether oral or in writing, between the Building Consultant and the Client relating to the inspection or the Report. Except as required by any applicable law, no terms must be implied into these terms and conditions.

The Client acknowledges that it has not relied on any express or implied information, representation, warranty or other assurance made by or on behalf of the Building Consultant.

K. GOVERNING LAW

These terms and conditions are governed by the law applying in Western Australia. The courts having jurisdiction in Western Australia have non-exclusive jurisdiction to settle any dispute arising out of or in connection with these terms and conditions and the Client and the Building Consultant irrevocably submit to the non-exclusive jurisdiction of the courts having jurisdiction in Western Australia.

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ABN 65 448 639 498