TERMS AND CONDITIONS OF SALE

1                     Entire Document Applies:

All sections of these terms and conditions are to be read one in conjunction with the other.

2                     Performance standard:

The Consultant will perform the Services exercising the degree of skill, care and diligence normally provided by a competent building surveyor, technician or other relevant professional as the case may be, in the same circumstances.

3                     Service Scope:

The Consultant will perform the service in accordance with the selection made by the Client when booking via the Consultants website, or as set out in the ‘Consultancy Services Agreement’ entered into between the Consultant and the Client.

                    Inspections:

Unless otherwise specified in writing, the purpose of inspections will be to assess the general condition of the building on a limited visual examination or invasive examination as the case may be.

5                     Additional work:

If while performing the Services, additional work is considered necessary or advisable, the Consultant will inform the Client in writing of the scope of the additional work and will obtain the Client’s prior written approval to extend the Services. Unless otherwise agreed in writing, the provisions of this Agreement will apply to the additional work with reasonable consequential adjustments to the Fees and Programme of Services.

6                     Information:

(a)       The Client will provide as soon as practicable, free of charge, all information reasonably required to enable the Consultant to perform the Services. Except where verification is part of the Services, the Consultant will be entitled to assume and rely on the accuracy and completeness of all information provided directly or indirectly by the Client or obtained by the Consultant from public or other reasonable sources.

(b)       Unless otherwise agreed in writing, the Client will be responsible for identifying the building including identifying any accessory units where the building is part of a multi-unit complex. The Client will disclose to the Consultant any known defects which the Client is aware of, apparent or not, and any problem which may affect the integrity and use of the building or the facilitation of the inspection and reporting.

7                     Accessibility:

The Client will arrange for the Consultant to obtain reasonable access to the building including roof space and sub-floor space where reasonably accessible. The Client agrees to provide the Consultant with access to the relevant areas and clear any obstructed spaces and cavities.  The Client, or the Client’s representative, agrees to be present while the Consultant is present inside the property of the Client, if so requested. The Consultant is not responsible for inspecting areas that in the opinion of the Consultant are inaccessible or dangerous to access.

8                     Advice confidential:

All advice or information, written or oral, provided by the Consultant is confidential and prepared solely for the Client for the purpose stated in the Scope of Services section of this Agreement. The Client will not use the advice or information for any other purpose nor directly or indirectly cause any of the advice or information to be disclosed to any third party without the prior written agreement of the Consultant. The Consultant will have no liability to any third party using or relying on any of the Consultant’s advice or information.

9                     Fees and payment:

(a)       In addition to the fee estimate provided by the Consultant to the Client, the Consultant shall be entitled to recover from the Client all incidental expenses, disbursements, accommodation costs, vehicle mileage costs and such like. Ten per cent shall be added to all incidental expenses, disbursements and accommodation costs.

(b)       The Client will pay to the Consultant the amount of fees and disbursements at the times and in the manner set out in the Fees section of this Agreement.

(c)       A deposit (including up to a 100% advance payment) may be required prior to services being commenced.

(d)       All amounts payable by the Client will be paid at the time of the invoice being delivered to the Client. The final invoice shall be delivered to the client simultaneously with the report.

10                 Invoices not paid by the due date shall, without prejudice to the Consultant’s other rights, incur an interest charge from the due date to the date of payment of 2.5% per calendar month calculated on the total amount owing for each 24 hour period the account is overdue, compounding monthly, and in addition, the Client shall pay all costs and expenses incurred by the Consultant in relation to recovering any money owed by the Client (including legal costs on a solicitor/client basis and the Consultant’s internal time, administration costs and any costs incurred if a debt collection agency is used).

11                 Unless specifically stated otherwise, quotations and fee estimates do not include provision for access equipment or working at height. If such access is deemed necessary the Consultant shall inform the client accordingly who shall have the opportunity to accept or decline the additional cost and requirement to work at height.

12                 Term and termination:

This Agreement will continue until all the Services have been performed unless terminated earlier by agreement between the parties, or by one party following the other party’s failure to remedy a material breach of this Agreement.

13                 Termination for non-payment:

Should the Client default on any payment due and the default continues for a period of 5 days, the Consultant may give written notice to the Client specifying the default and requesting payment within 2 days of the date of service of the notice. If the Client fails to remedy the default within that period, the Consultant is entitled to suspend all or part of the Services or terminate this Agreement without further notice, and the Consultant shall not be liable for any damage or loss arising directly or indirectly in connection with those parts of the Services to which the payment default relates.

14                 Termination:

for any reason shall not relieve the Client of all its obligations as set out elsewhere within this agreement.

15                 Client’s agent:

Where this Agreement has been entered into by an agent on behalf of the Client (or a person purporting to act as agent), the agent and the Client shall be jointly and severally liable for payment of all amounts due to the Consultant under this Agreement.

16                 Personal Guarantee:

Where the Client is a company, the person named overleaf as the authorised signatory of the Client hereby irrevocably guarantees the punctual payment of all amounts owed by the Client to the Consultant and acknowledges this guarantee may be enforced directly by the Consultant without first requiring the Consultant to pursue remedies against the Client.

17                 Consultant’s employees/agents:

The Client acknowledges that while the Consultant operates through employees and other individuals, no reliance has or will be placed on them personally by the Client in connection with this Agreement or the performance of the Services. The Client acknowledges and accepts that the Client only relies on the corporate conduct of the Consultant and that the Consultant’s employees or individual agents have no personal legal responsibility to the Client.

18                 Liability limitations:

No claim for damage or loss arising directly or indirectly in connection with the Services will be brought more than 6 years after the date of this Agreement, or in any event shall be brought against any individual employee, director, officer or agent of the Consultant. Any liability of the Consultant for damages, costs or other legally payable amounts arising directly or indirectly in connection with the Services (whether in contract, tort or otherwise) will be limited in aggregate to the lesser of two times the value of the fees paid for the Services or NZ$15,000.00. The Consultant will only be liable to the Client (whether in contract, tort or otherwise) for damage or loss directly caused by the Consultant’s breach or default and will not be liable for any loss of profits or any indirect or consequential losses of any nature. In addition, any liability of the Consultant shall be limited to only that portion of the damage or loss directly caused or contributed to by the Consultant. The provisions of this clause will apply to the maximum extent permitted by law, and will confer to any extent relevant a benefit on any individual employee, director, officer or agent of the Consultant.

19                 Indemnity:

The Client agrees to indemnify the Consultant against any damage, loss or expense incurred by the Consultant as a result of a breach of this Agreement by the Client. The Client further agrees to indemnify the Consultant against any damage, loss or expense incurred by the Consultant as a result of an action by a third party against the Consultant brought either directly or indirectly.

20                 The report and any other documentation provided by the Consultant remains the property of the Consultant until such time as full payment is received by Savanna Management Ltd. 

21                 Compliance Warranty:

The Client acknowledges that, except where the scope of the report specifically includes it, the inspection will not assess compliance with the weathertightness requirements of the Building Code or the existence of rot or decay. While the Consultant may use the visible presence of mould to aid in the assessment of the general condition of the building, the Consultant will not be liable for any claim for damage or loss (whether in contract, tort or otherwise) arising directly or indirectly in connection with the effects of mould, fungi, protozoa or any similar damaging species or the failure of the building or any component to meet the weathertightness requirements of the Building Code.

22                 Exclusions from the Report:

In addition to and without limiting any other provisions of this agreement, the following will be excluded from the scope of inspections and reports, unless specifically stated in writing within a report as being included:

(a)      any area of the building or site or any item, system or component not specifically identified in the inspection report as having been inspected;

(b)      engineering, architectural, geotechnical, geological, hydrological, land surveying or soils examinations;

(c)      dismantling of any system, structure or component or any invasive or destructive testing or analysis;

(d)      systems including electrical, plumbing, air conditioning, heating (including fire places and chimneys), security, fire warning and control, sewerage, storm water, ducted vacuum systems;

(e)      environmental hazards or conditions including the existence of asbestos, toxic fungi or moulds, termites or other pest infestations, electromagnetic radiation, toxic or flammable chemicals, air or water contaminants, geological hazards or floods;

(f)        sheds, outhouses, detached buildings, swimming pools, spa pools, saunas and associated equipment, or appliances including but not limited to kitchen, leisure and laundry appliances;

(g)      common property or common areas, systems, structures or components where the building is part of a multi-unit complex;

(h)       acoustical or other nuisance characteristics of any system, service, structure or component of the building or building complex, adjoining properties or neighbourhood;

(i)         any legal, resource consent or building consent or compliance aspects including title, boundaries, occupational rights, resource and planning consent, building consent, Building Code compliance, building warrant of fitness or heritage obligations.

23       The Client acknowledges:

(a)      that some services may include a limited scope of  inspection and accepts that it may not identify all past, present or future defects;

(b)      the inspection will not assess compliance with the Building Code, or any structural aspect unless specifically identified in the report as being included;

(c)      descriptions in a report of systems or any appliances relate to their existence only and not adequacy or life expectancy;

(d)      neither the inspection nor the resulting report will be an express or implied guarantee or warranty regarding the condition of the building or of any item, system or component of the building (including any implied warranty of merchantability or fitness for use or purpose) to the maximum extent permitted by law;

(e)      the Consultant will not be liable (whether in contract, tort or otherwise) for any loss or damage to the building or any item, system or component of the building arising directly or indirectly from the invasive testing;

(f)        while the Consultant will provide temporary fillers or covers to all holes and cut out areas created by invasive testing, it will be the Client’s responsibility to undertake appropriate permanent repairs expeditiously.

24                 Any repair recommendations or indicative repair costings included in the reports will be for general guidance only. The Client will not rely on such recommendations or indicative costings in respect of any legal or financial commitment or repair work but will obtain specific advice from relevant contractors or experts. The Client accepts the risk that damage (including further damage) may occur to the building or its systems or components if any recommended repairs are not carried out properly and expeditiously by the Client.

25                 Client to Inform Consultant of Errors and Omissions:

The Client will give prompt written notice to the Consultant of the discovery of any material defect affecting the building omitted from the report by the Consultant and, except in an emergency situation, will give the Consultant a reasonable opportunity to re-inspect prior to any repair work being undertaken. In the event that the Client fails to give such notice, the Client waives any claim against the Consultant in connection with the defect to the maximum extent permitted by law.

26                 Copyright:

The Consultant will retain copyright of all documents prepared by the Consultant in performing the Services. The Client will be entitled to use or copy the documents only as reasonably required in connection with the purpose stated in the Services section of this Agreement. The Client will have no right to use or copy any of the Consultant’s documents if the Client is in default on any payment due under this Agreement.

27                 Consumer Guarantees Act:

If the Services are required for the purpose of a business, the provisions of the Consumer Guarantees Act 1993 will not apply to the Services.

28                 Disputes resolution:

Any disputes will first be referred to mediation. This clause will not apply to a recovery claim by the Consultant for any money owed by the Client.

29                 Governing law:

This Agreement and the parties’ relationship will be governed by the laws of New Zealand.

INSPECTION AND REPORTING – FOR NON-INVASIVE INSPECTIONS

30                 The inspection will be non-invasive and limited to those areas of the building which are readily accessible and visible at the time of inspection. The inspection will not include any areas or items which are concealed behind finished surfaces (such as framing, plumbing, drainage, heating, ventilation or wiring) or any areas requiring the moving of anything which may impede access or limit visibility (such as floor coverings, insulation, furniture, appliances, personal property, vehicles, vegetation, debris or soil).

31                 The inspection will focus on identifying significant apparent defects at the date and time of the inspection. The Client acknowledges the limited scope of the inspection and accepts that it may not identify all past, present or future defects;

32                 Neither the inspection nor the resulting report will be an express or implied guarantee or warranty regarding the condition of the building or of any item, system or component of the building (including any implied warranty of merchantability or fitness for use or purpose) to the maximum extent permitted by law.

33                 Building Condition and Weathertightness Risk Assessment

(a)       This is a non-invasive visual inspection and resulting written report. The client’s use of the report is for evaluative purposes only and the report may not be provided to third parties without the express written permission of the Consultant.

(b)      The set price, as listed from time to time on the Consultant’s website, allows for a standard design house with attached double garage comprising no  more than 400m2 gross floor area, including a maximum four bedrooms, two bathrooms, and all usual other rooms and house features normally associated with an executive standard dwelling.

(c)      For residential buildings, the Consultant will not necessarily need to comply with all aspects of NZ Standard NZS 4306 2005 in order to meet the performance standard.

(d)      Set prices for Queenstown area only include travel for areas Sunshine Bay, Fern Hill, Queenstown, Arthurs Point, Frankton, Kelvin Heights, Lake Hayes Estate, Quail Rise, Arrowtown, and all areas between and adjacent to these.

INSPECTION AND REPORTING – FOR INVASIVE / DESTRUCTIVE INSPECTIONS

34                 Unless otherwise agreed in writing, the inspection will:

(a)      be an above ground visual examination augmented by invasive testing by representative sampling;

(b)      be limited to those areas and components of the building which at the time of inspection are readily accessible and visible;

(c)      exclude any areas, components or items which are otherwise concealed behind finished surfaces or which are not readily accessible and visible because of floor coverings, furniture, appliances, personal property, vegetation, debris, soil and the like.

35                 The Client consents to the Consultant damaging the building to the extent reasonably necessary to undertake the invasive testing. The testing will commonly require the drilling of small holes and the cutting out of small areas in the exterior cladding and the internal wall linings, but may also require larger cut outs and the taking of timber and mould samples for analysis.

36                 The Client acknowledges that the Consultant will provide temporary repairs only to invasive damage and that it is the Clients responsibility to effect permanent repairs.

37                 Neither the inspection nor the resulting report will be an express or implied guarantee or warranty regarding the condition of the building or of any item, system or component of the building (including any implied warranty of merchantability or fitness for use or purpose) to the maximum extent permitted by law.


 

ST. Updated 07.02.13