General Terms and Conditions
These are the General Terms and Conditions that will apply when you (“the Client”) engage a Property Indepth Group Member (“the Company”) to supply a Valuation.
These General Terms and Conditions will be superseded by any Specific Terms and Conditions between the Client and the Company(“the Specific Terms and Conditions”).
1.1 ”Buildings” shall mean all buildings, structures and improvements at the Property.
1.2 “Company” shall mean the Property Indepth Group Member (and its successors and assigns) engaged by the Client as confirmed by electronic confirmation to the Client and/or Specific Terms and Conditions. (For the avoidance of doubt, the Client is not engaging the Company’s franchisor, Property Indepth Limited).
1.3 “Client” shall mean you, the person(s) and/or legal entity that has engaged the Company to supply a Valuation.
1.4 “Fee” shall mean the price payable for the Valuation, confirmed by electronic confirmation or otherwise by Specific Terms and Conditions, as may be amended including any applicable additional charges (clause 2) plus any applicable default interest and costs (clause 6), any applicable cancellation fee (clause 7.2), and any applicable failed access fee (clause 11.2). Unless otherwise stated, all fees are “plus GST”.
1.5 ”Property” shall mean the property, including all land and Buildings, that is the subject of the Valuation.
1.6 “Report” shall mean any written Valuation Report to be supplied by the Company to the Client as part of the Valuation.
1.7 ”Valuation” shall mean the Valuation(s) and related works including the Report described in the electronic confirmation and invoice provided by the Company to the Client save that in respect of any Valuation to be supplied by the Company to the Client the scope of the Valuation is defined in clause 10 below.
2. Price & Payment
2.1 Unless otherwise agreed in writing, the Client shall pay the Fee before the date that the Company commences the Valuation.
2.2 The Client acknowledges that the Company calculates the Fee based on information provided by the Client. Where such information is incorrect or any relevant information is omitted, the Company reserves the right, at any time, to amend the Fee. Any additional charges will be payable upon receipt of invoice by the Client.
3. Time of Supply
3.1 The Valuation shall be supplied at approximately the date(s) and time(s) agreed by the Company and the Client. However, while the Company will make a reasonable effort to supply the Valuation at the date(s) and time(s) agreed, the Company reserves the right to vary the date(s) and time(s) that the Valuation are supplied at its absolute discretion.
3.2 The Company may withhold supplying the Report to the Client until all Fees are paid in full.
4. Consumer Guarantees Act
4.1 These terms and conditions are subject to the Consumer Guarantees Act 1993 (“the Act”). To the extent that these terms and conditions apply to a “Consumer” as defined by the Act, and are inconsistent with Act, the provisions of the Act shall prevail.
4.2 If the Client is acquiring or otherwise being supplied with a Valuation for the purpose(s) of a trade or business, the Client acknowledges that the provisions of the Act do not apply.
5. Intellectual Property, Confidentiality and Third Parties
5.1 The Valuation, including without limitation, the Report, is confidential and has been prepared solely for the Client and shall not be relied on by any third parties other than any bank or financier as specified and agreed in writing. The Company accepts no responsibility for anything done by any third party in reliance, whether wholly or in part, on any of the Valuation including, without limitation, the contents of the Report.
5.2 The Company retains copyright in any written designs, drawings, specifications, processes, Reports and any other documents created as part of, or for the purpose of performing, the Valuation. The Report, in whole or in part, may not be copied, reproduced or translated in any medium by the Client and shall not be supplied by the Client to any third parties other than any bank or financier as specified and agreed in writing and the Client’s professional advisers.
6.1 Interest on any unpaid Fee, or part thereof, shall accrue daily from the date when payment of the Fee becomes due, until the date of payment, at a rate of two and one half percent (2.5%) per calendar month, calculated daily, after as well as before any judgment.
6.2 If the Client defaults in payment of any Fee, or part thereof, when due, the Client shall indemnify the Company from and against all costs and disbursements incurred by the Company in pursuing the debt including, without limitation, legal costs on a solicitor and client basis and any debt collection agency costs.
6.3. Without prejudice to any other remedies the Company may have, if at any time the Client is in breach of any obligation (including the obligation to pay the Fee), the Company may, at its election, suspend or terminate the supply of any Valuation to the Client and any of its other obligations under the terms and conditions. For the avoidance of doubt, the Company will not be liable to the Client for any loss or damage the Client suffers because the Company has exercised its rights under this clause or clause 3.2.
7.1 The Company may, at will, cancel any contract to which these terms and conditions apply at any time before any Valuation is supplied by giving written notice to the Client. On giving such notice under this clause, the Company shall repay to the Client any sums paid in respect of the Fee. The Company shall not be liable for any loss or damage whatsoever arising from such cancellation.
7.2 In the event that the Client cancels any contract to which these terms and conditions apply, the Client shall be liable for a cancellation fee equal to the full Fee, unless twenty four hours written notice of cancellation is given.
8. Privacy Act 1993
8.1 The Client authorises the Company to collect, retain, use and disclose any personal information about the Client for the following purposes (in addition to any purposes otherwise authorised by law):-
8.1.1 Enabling the Company to perform its obligations pursuant to any contract (including these terms and conditions) with the Client;
8.1.2 Administering, whether directly or indirectly, any contract (including without limitation, these terms and conditions) with the Client and enforcing the Company’s rights thereunder;
8.1.3 Enabling the Company to communicate with the Client for any purpose.
8.2 The Client, if an individual, has a right of access to the Client’s personal information held by the Company. The Client may request correction of that information and may require that the request be stored with that information. The Company may charge reasonable costs in providing access to that information.
9. Inspectors have no personal interest
9.1 The Company warrants that neither the Company nor any Company employee that supplies a Valuation to the Client has any interest, present or contemplated, in the subject property.
10. Scope of Valuation – Property Inspection and Report
10.1 Clause 10 (including its subclauses) defines the scope of the Valuation for the Property inspection and Report supplied by the Company to the Client.
10.2 Unless otherwise expressly specified in the Report, the Valuation will comply with International Valuation Standards 2017 and the Australia and New Zealand Valuation Guidance Notes and Technical Information papers.
10.3 For the avoidance of doubt, other than as expressly specified in the Report, the Valuation will be supplied containing the following assumptions (“the Assumptions”):
10.3.1 All Buildings are competently designed and built and are structurally sound including, without limitation, are weathertight;
10.3.2 All Buildings and components do not have any patent or latent defects in terms of design, materials and construction;
10.3.3 The Property complies with all applicable legislation (and their amendments, and legislation in substitution thereof) including, without limitation the Building Act 2004, the Building Code, and the Resource Management Act 1991;
10.3.4 All Buildings and other works at the Property have all necessary consents and certificates (including code of compliance certificates);
10.3.5 The title(s) of the Property is/(are) not defective in any way whatsoever including, without limitation, there are no issues with easements, covenants and/or other encumbrances that may affect the value of the Property;
10.3.6 The Property is free from contaminants including, without limitation, chemicals, fungus, mould, mildew, yeast, rot or decay, gradual deterioration, micro-organisms, bacteria, infestations, protozoa or similar, spores, toxin, vapour, residue (including methamphetamine residue), gas or other emission, toxic waste, asbestos, organic or inorganic body or substance created, produced or emanating from or within such, or any other potentially hazardous material which would affect the market value or saleability of the Property;
10.3.7 A territorial authority Land Information Memorandum or a Project Information Memorandum or any other document on a territorial authority’s file in relation to the Property and surrounding neighbourhood will not reveal any defects or issues that may impact on the market value of the Property;
10.3.8 The services at the Property are in working order and function for the purposes for which they were designed and comply with all current legislation including, without limitation, building, fire and other government regulations and codes. In this clause 10.3.8, “the services” are defined to include, without limitation, any hot and cold water systems, gas systems, electrical systems, fittings (such as light fittings), septic systems, solar power systems, ventilation, heat and cooling systems, lifts, installations and conveniences;
10.3.9 There are no land stability or other geotechnical issues at the Property;
10.3.10 There is no risk of flooding at the Property;
10.3.11 There are no boundary issues or defects at the Property, and unless otherwise stated it is assumed that all improvements lie within the title boundaries;
10.3.12 All information obtained for the purpose of the Valuation from third parties including, without limitation, government departments or statutory authorities, is reliable and accurate;
10.3.13 Where applicable, all tenants at the Property have complied with their tenancy obligations including, without limitation, the payment of rent as well as, at all times, not using the Property to undertake any illegal activity;
10.3.14 All information provided by the Client (and the Client’s agents) to the Company is accurate and not misleading;
10.3.15 Where the Property is strata titled, there are no claims, orders or resolutions which may result in an extraordinary levy being charged to the strata title holder or otherwise affect the market value of the Property; and there are also no body corporate issues which may affect the market value of the Property;
10.3.16 Any sketch, plan or map in this report is included to assist the reader in visualising the property and should not be relied upon as being definitive;
10.3.17 You are recommended to obtain further independent professional advice regarding the appropriate due diligence and reports prudently required including, without limitation, in relation to the Assumptions in, and matters not expressly covered by, this Valuation and Report.
10.3.18 For the avoidance of doubt, we emphasise that, unless otherwise specified, we will carry out an inspection of exposed and readily accessible areas of the improvements. However, the valuer is not a building construction or structural expert and is therefore unable to certify the structural soundness of the improvements. Readers of the report should make their own enquiries.
10.4 The Client acknowledges:
10.4.1 That the Assumptions in clause 10.3 may or may not be correct;
10.4.2 That the Company is not engaged by the Client to make enquiries or otherwise obtain or provide reports and/or opinions to verify the Assumptions in clause 10.3 or otherwise;
10.4.3 That the Company gives no warranty that the Assumptions in clause 10.3 are correct;
10.4.4 The Valuation is not intended to be a warranty or guarantee of the current or future adequacy or performance of the Property, its structure, systems, or their component parts;
10.4.4 The Valuation does not constitute any express or implied warranty of merchantability or fitness for use regarding the condition of the property and buildings and it should not be relied upon as such;
10.4.5 That the Company has advised the Client to obtain professional advice independent of the Company regarding the appropriate due diligence and reports prudently required by the Client in all of the relevant circumstances;
10.4.6 Unless otherwise expressly agreed in writing, each and every Valuation stands alone and is not to be aggregated with any other valuation(s) for any purpose whatsoever; and
10.4.7 The Valuation is provided for the purpose specified in the Report and strictly for no other purpose whatsoever.
10.5 For the further avoidance of doubt, the Report supplied by the Company to the Client is not:
10.5.1 An electrical report;
10.5.2 A plumbing report;
10.5.3 A gas report;
10.5.4 An appliances report;
10.5.5 A geological or geotechnical report (including, without limitation, any such report on foundation integrity or soil conditions);
10.5.6 A structural engineering report;
10.5.7 A survey report (including, without limitation, any such report regarding boundaries);
10.5.8 A weathertightness report;
10.5.9 A code of compliance report or certificate;
10.5.10 A building warrant of fitness report or certificate;
10.5.11 A legal opinion;
10.5.12 A building or pre-purchase inspection report;
10.5.13 A Land Information Memorandum;
10.5.14 Other than as expressly specified in the Report, a Report suitable for insurance purposes including, without limitation, for the purpose of determining the replacement value or reinstatement cost of a property and its building(s);
10.5.15 An environmental, methamphetamine or asbestos report.
10.6 Unless the Company otherwise agrees in writing, the Valuation stands alone and shall not be aggregated with any other valuation(s) and/or report(s) for any purpose whatsoever.
11. Reasonable Access
11.1 The Client will ensure that the Company is legally entitled to have reasonable and unobstructed access to the entire Property that is the subject of the Valuation.
11.2 Where the Company is required to re-visit the Property because access was not gained at the agreed time of inspection, a further charge based on an hourly rate (including travel time) of $100 per hour, will be added to the Fee.
12. Limitation of Liability
12.1 For the purpose of this clauses 12.2 and 12.3 the Company includes and extends to the Company, the Company’s directors, the Company’s employees, the Company’s representatives, the Company’s franchisor (Property Indepth Limited), the Company’s franchisor’s directors, and/or the Company’s agents.
12.2 Notwithstanding anything in these terms and conditions or at law or in equity to the contrary but subject to the Company’s obligations under the Consumer Guarantees Act (if applicable):
12.2.1 The Company will not be liable for any direct, indirect or consequential loss suffered by the Client arising howsoever from:
(i) Any breach of these terms and conditions by the Company;
(ii) The Valuation including, without limitation, any inspection undertaken and Report published and supplied by the Company to the Client;
The use of the Valuation;
12.2.2 The Company’s liability in relation to these terms and conditions and all related matters (whether arising under contract, tort (including negligence) equity or otherwise) will be limited to, at the Company’s election, the Fee or remedying any defect in the applicable Valuation.
13. Unsolicited Electronic Messages Act 2007
13.1 The Client gives the Company consent to send to the Client commercial emails from time to time. The Client may withdraw that consent at any time. The Company’s email address for unsubscribing / withdrawing consent is: email@example.com.
14.1 Any provision of these terms and conditions that is binding on more than one party will bind such parties jointly and severally.
14.2 The failure of or delay by the Company in requiring performance of any obligation of the Client pursuant to these terms and conditions is not a waiver of the Company’s right:
14.2.1 to claim damages and/or an indemnity for breach of that obligation; and
14.2.2 to require performance of that or any other obligation under these terms and conditions at any time, unless notice to that effect is given in writing signed by the party entitled to the benefit of that provision or right. Any waiver given in accordance with this clause is effective only to the extent expressly set out in such notice.
14.3 These terms and conditions record the entire arrangement between the parties relating to the matters dealt with in the terms and conditions and supersedes all previous arrangements, whether written, oral, or both, relating to such matters.
14.4 If any provision of these terms and conditions is or becomes invalid or unenforceable, that provision will be deemed deleted from the terms and conditions and such invalidity or unenforceability will not affect the other provisions of the terms and conditions, all of which will remain in full force and effect to the extent permitted by law, subject to any modifications made necessary by the deletion of the invalid or unenforceable provisions.
14.5 No variation or amendment to these terms and conditions is effective unless it is in writing and signed by all the parties.
14.6 The Client may not transfer or assign any of the Client’s liabilities or rights under the terms and conditions to any other person without the prior written of the Company. The Company may transfer or assign any of its liabilities or rights under the terms and conditions to any other person.
14.7 The terms and conditions will be binding against and for the benefit of each party, its permitted successors and its permitted assigns. Except as expressly provided for in these terms and conditions, a person who is not a party to these terms and conditions will have no rights or remedies under the terms and conditions, including under the Contract and Commercial Law Act 2017, to enforce any of its terms.
14.8 The Company will not be liable for any failure to perform its obligations pursuant to these terms and conditions by reason of a force majeure event. A force majeure event means any event outside of the reasonable control of the Company and includes, without limitation, fires or other casualties or accidents, power outages, acts of God, strikes and lockouts, severe weather conditions, delay in supply or materials or unavailability of materials, war or other violence, software or server failure and inability to access or connect to the internet for any reason whatsoever.
14.9 The Client acknowledges that the Client has entered into these terms and conditions relying on the Client’s own judgement and that the Client has not entered into the terms and conditions relying upon any representation (express or implied) made by the Company.
14.9 The Client warrants that the Client is legally entitled to enter into the terms and conditions.
14.10 These terms and conditions are governed by the laws of New Zealand and the parties submit to the exclusive jurisdiction of the New Zealand courts in respect of all matters relating to these terms and conditions and the agreement they record.