TERMS & CONDITIONS

1: Agreement

1.1 Agreement parts

(1) This agreement consists of the following parts:

(a) The Agreement Details.

(b) These general terms and conditions.

(the Agreement).

(2) If there is an inconsistency between the parts of this Agreement, the part listed earlier prevails to the extent of the inconsistency.

(3) The occurrence of any of the following will be deemed to constitute the Clients acceptance of this agreement:

(a) The Clients execution of this agreement.

(b) The Clients payment of any amount to the Inspection Provider.

1.2 Agreement to provide Inspection

The Client has requested, and the Inspection Provider has agreed, that the Inspection Provider undertake the Inspection of the Property in accordance with this Agreement.

1.3 Rejection of Inspection

The Inspection Provider may, at any time prior to conducting the Inspection, cancel the Client’s request for the Inspection pursuant to this Agreement. If the Inspection Provider cancels the Inspection, the Inspection Provider will refund to the Client the Price paid by the Client.

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2: Purpose of Inspection

The Client has requested that the Inspection Provider undertake an Inspection of the Property for the purpose of providing advice on the condition of the Property at the time of Inspection.

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3: Scope of Inspection

3.1 Compliance encompassing New Zealand Standards

(1) Encompass New Zealand Standard NZS 4306:2005 sets a minimum acceptable standard for the Inspection of the Property.

(2) The Inspection will be undertaken by the Inspection Provider in accordance with this Agreement and the above mentioned New Zealand Standard.

(3) The Inspection Provider encompasses its compliance with the above mentioned New Zealand Standard in undertaking and reporting the Inspection.

3.2 Scope of Property Inspection

(1) The Inspection and Report does not include the inspection and assessment of items or matters outside of the scope of the requested Inspection and that do not fall within the Inspection Providers direct expertise.

(2) The scope of the Inspection and Report by the Inspection Provider is limited to the matters and items set out in the Agreement Details.

(3) Should the Client require the inspection and assessment of items of matters that fall outside of the scope of the requested Inspection and Report, the Client should obtain a Special-Purpose Inspection Report which is adequately specified and undertaken by an appropriately qualified inspector.

(4) Inspection for under floor needs to be more then 400 mm clearance for me to enter the space.

(5) Roof space needs to be 600 mm or more to enter the space for inspection. Roof space needs to be accessible from a 3.6 m ladder.

(6) Roof exterior needs to be accessible from a 3.6 m ladder.

(7) No testing of oven, hob, heating, alarm systems, heat pumps.

3.3 Extended scope of Inspection

(1) If the Client instructs that the scope for the Inspections under clause 3.2 be extended, the extended scope will be set out in the Special Conditions in the Agreement Details.

(2) A request by the Client to extend the scope of the Inspection under this Agreement is at all times subject to the approval of the Inspection Provider and can be rejected at the Inspection Providers discretion.

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4: Accessibility and limitations

4.1 Access to the Property

(1) The Inspection Provider is not responsible for arranging entry to the Property or any part of it.

(2) The Client must, at all times during the Inspection:

(a) supply all information reasonably requested by the Inspection Provider to allow it to undertake the Inspection; and

(b) arrange and permit a right of entry to all parts of the Property to enable the Inspection Provider to undertake the Inspection.

(3) If sufficient access to enable Inspection is not available, the Inspection Provider will make recommendations for gaining access and, if that access is not achievable, the area that cannot be accessed will not form part of the Inspection.

4.2 Access limitations

(1) The Inspection will not include the following areas of the Property:

(a) Areas that the Inspection Provider reasonably considers unsafe or inaccessible.

(b) Areas that cannot be accessed due to temporary or permanent obstruction or temporary or permanent restricted access (e.g. locked doors, security systems etc.)

(2) Limitations in accessing parts of the Property for Inspection may include:

(a) the Client not owning the Property and therefore not having the legal right to grant the Inspection Provider access to parts of the Property; and

(b) the Client not being present at time of the Inspection to allow the Inspection Provider access to parts of the Property.

(3) Reasonable access does not include the cutting of access holes or the removal of screws and bolts or any other fastenings to access covers, removal of any sealants to access covers or removal of coverings or cladding.

(4) In respect to the determination of whether sufficient space is available to allow safe access to confined areas, the Inspection Provider will determine whether access is possible in its reasonable opinion, which includes the Inspection Provider considering the following criteria:

(a) Roof interior must be accessible from a 3.6 m ladder and the roof exterior must be accessible from a 3.6 m ladder placed on the ground.

(b) Roof Interior: access hole and crawl space of at least 600 mm high × 600 mm wide and which permits entry.

(d) The ability to access areas of the Property due to height, narrow boundary clearance, thick vegetation, small roof space, small subfloor crawl space etc.

(5) If there is insufficient space available to allow safe access to confined areas pursuant to paragraph (4), the Inspection:

(a) will not cover the areas that cannot be accessed by the Inspection Provider; and

(b) to the extent possible, the Inspection Provider will conduct the Inspection based on the Inspection Providers unobstructed line of sight and within arm’s length distance.

4.3 Readily Accessible Areas

(1) The Inspection will only cover the Readily Accessible Areas of the Property.

(2) The Inspection will not include areas of the Property that are inaccessible, not readily accessible or obstructed at the time of Inspection and which includes, but is not limited to:

(a) the interior of a flat roof;

(b) beneath a suspended floor filled with earth;

(d) any other conditions or physical limitations which inhibit or prevents Inspection.

(3) The Inspection will not include the Inspection Provider moving or removing any obstructions that prevent Inspection including, but not limited to:

(a) ceilings, fixed ceilings and roofing;

(b) wall coverings and linings;

(d) fixtures and fittings;

(e) applied finishes such as render and paint;

(f) furnishings;

(g) equipment;

(h) appliances;

(i) pictures;

(j) other household goods and stored items;

(k) wall cladding;

(l) thermal insulation;

(m) sarking;

(n) pipe/duct work;

(o) awnings;

(p) trellis;

(q) pavements;

(r) earth;

(s) vegetation;

(t) stored articles and materials; and

(u) debris or rubbish.

(4) The Client acknowledges that the items set out in paragraph (3) may be concealing evidence of defects, which may only be revealed when the items are moved or removed.

4.4 Apartment and cross-lease title

(1) If the Inspection relates to a Property that is part of any kind of apartment or cross-lease title or other class two (2) buildings or equivalent, the Inspection will be limited to the interior and immediate exterior of the nominated residence being Inspected. The Inspection will not include any of the common areas, any areas not owned by the Client, or documents or records related to the body corporate of the Property.

(2) The Client may therefore have additional liability for defects in the common areas of the Property and such additional liability can only be assessed by the Inspection Provider through a Special-Purpose Inspection Report.

4.5 Subfloor

(1) Storage of material and items in subfloor areas of the Property is not recommended as it reduces ventilation and makes the Inspection difficult for the Inspection Provider.

(2) Any material, items and obstructions in the subfloor areas of the Property may be concealing evidence of defects, which may only be revealed when the obstructions are moved or removed.

(3) In the case of suspended floors, if the clearance between the ground and structural components is less than 400 mm, then it is recommended that the ground should be excavated to provide the required clearance, subject to maintaining adequate drainage and support to footings.

(4) If the subfloor has been sprayed for subterranean termites or if the area if susceptible to mould growth:

(a) appropriate health precautions must be followed before entering the area; and

(b) special care should be taken not to disturb treated soil.

4.6 Unexpected and unforeseen limitations

(1) The limitations set out in this clause 4 are not exhaustive and unexpected and unforeseen limitations may arise upon the Inspection Provider conducting the Inspection.

(2) Should unexpected and unforeseen limitations arise, the Inspection Provider will endeavour to inform the Client as soon as possible upon becoming aware of the limitations and will document the limitations in the Report and how those limitations restrict the scope of the Inspection.

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5: Limitations of Inspection

The limitations under this clause 5 are reasonably expected to be present or may occur as part of the Inspection and may therefore restrict the full achievement of the Client’s purpose of the Inspection.

5.1 Visual

The Inspection Provider does not recommended visual only Inspections, which may be of limited use to the Client should the Client instruct the Inspection Provider to only carry out a visual only Inspection. To thoroughly inspect the Readily Accessible Areas of the Property, the Inspection Provider will need to carry out appropriate Tests as part of its Inspection.

5.2 Dampness

(1) The presence of dampness is not always consistent as the prevailing and recent weather conditions at the time of the Inspection is carried out may affect the detection of damp problems.

(2) The absence of any dampness at the time of Inspection does not necessarily mean the Property will not experience some damp problems in other weather conditions. Whether or not services have been used with respect to the Property for some time prior to the Inspection will affect the detection of dampness.

(3) To fully detect and asses a damp problem, the Client will need to monitor the Property over a period of time.

5.3 General limitations

(1) The Inspection and Report is not a warranty against issues, defects and problems developing or occurring to the Property in the future.

(2) The conduct of the Inspection and issue of the Report is at all times subject to and conditional upon:

(a) weather conditions;

(b) the accuracy of information provided by the Client;

(d) inevitable accident;

(e) inability to obtain labour or transportation;

(f) events outside the reasonable control of the Inspection Provider;

(g) any other fact limiting the Inspection and preparation of the Report.

(3) If the Inspection Provider is of the opinion that an invasive or destructive test is to be conducted or particular proprietary or specialist equipment is to be used, such inspection and work must be undertaken under a separate inspection agreement between the Client and the Inspection Provider.

5.4 Unexpected and unforeseen limitations

(1) The limitations set out in this clause 5 are not exhaustive and unexpected and unforeseen limitations may arise upon the Inspection Provider conducting the Inspection.

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6: Exclusions

6.1 What the Inspection and Report does not cover

The Inspection and Report does not cover or deal with the following:

(1) Possible concealment of defects, including but not limited to, defects concealed by lack of accessibility and obstructions.

(2) 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, and whether or not services have been used on the Property some time prior to the Inspection being carried out.

(3) Individual Minor Defects.

(4) Solving or providing cost estimates for any rectification or repair work.

(5) The structural design or adequacy of any element of construction.

(6) Detection of wood destroying insects such as termites and borers.

(7) The operation of fireplaces and chimneys.

(8) Any services including building, engineering (electronic), fire, smoke detection or mechanical.

(9) Lighting or energy efficiency.

(10) Swimming pools and associated pool equipment or spa baths and spa equipment or the like.

(11) Any appliances such as dishwasher, insinkerators; ovens, stoves and ducted vacuum system.

(12) A review of occupational, health or safety issues such as asbestos content, the provision of safety glass or the use of lead based paints and the consequence of those hazards.

(13) A review of environmental or health or biological risks such as toxic mould.

(14) Whether the Property or building complies with the provisions of any legislation, code, regulation or by-law.

(15) Whether the Property and/or the ground on which the building rests has been filled, is liable to subside, swell or shrink, is subject to landslip, earthquakes, tidal inundation, or if it is flood prone.

6.2 Unexpected and unforeseen limitations

(1) The exclusions set out in this clause 6 are not exhaustive and unexpected and unforeseen exclusions may arise upon the Inspection Provider conducting the Inspection.

(2) Should unexpected and unforeseen exclusions arise, the Inspection Provider will endeavour to inform the Client as soon as possible upon becoming aware of the exclusions and will document the exclusions in the Report and how those exclusions restrict the scope of the Inspection.

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7: Disclaimers and recommendations

Recommendations

The Inspection Provider recommends that the Client:

(1) consider as matter of urgency the implementation of any recommendation or advice given in the Report;

(2) obtain an inspection of the areas of the Property that were not readily accessible and of inaccessible or obstructed areas once access has been provided or the obstructions are removed;

(3) implement preventative maintenance program for the Property which includes systematic inspections, detection and the prevention of incipient failure;

(4) in respect of any defect or significant item of concern identified in the Report, to obtain a further detailed investigation by a competent and qualified person to determine the cause, method and extent of any remedial work required and the associated costs of doing so;

(5) obtain other specialist inspections and services that do not fall within the Inspection Providers expertise such as hydraulics, geotechnics, building, engineering (electronic), fire, smoke detection or mechanical services (as relevant to the Client and the Property).

Disclaimers and Limitations

(1) This report is of a visual, non-invasive inspection of the areas of the building which were readily visible at the time of inspection and detailed in the report. It is based upon the best information and knowledge that was available at the time of inspection including the time of day and the weather at the time of the inspection. No responsibility is accepted for any events, weather related or otherwise, that affect the property at any point after the time of inspection. The inspection did not include any areas or components which were concealed or inaccessible (such as plumbing, drainage, heating, framing, ventilation, insulation or wiring) or which required the moving of any object or thing which impeded access or limited visibility (such as floor coverings, furniture, appliances, personal property, vehicles, vegetation, debris or soil). This also includes any areas that were inaccessible by animals, locks or any other means, and any exclusion to inspection due to this is outlined in the report.

(2) As the scope for the inspection was to assess the general condition of the building based on the limited visual inspection as set out above, this report may not identify all past, present or future defects of the building or any element of the building or any system contained within the building. Descriptions in this report of systems or appliances relate to existence only and not adequacy of the system or appliance or its life expectancy. Any area or component of the building or any item or system not specifically identified in this report as having been inspected was excluded from the scope of the inspection. This includes any electrical appliances including but not limited to stoves/ovens, range hoods, heat pumps, panel heaters or other heaters including night stores, underfloor heating, solar power as well as any spa/sauna or in-ground or other pool and its equipment. The inspection does not include any assessment on the land, soil condition or stability or any underground services contained within the property.

(3) The inspection does not assess compliance of the building with the New Zealand Building Code including the weathertightness requirements, or structural aspects under the Building Code. If information is required about weathertightness or structural elements or any systems in the building, such as electrical, plumbing, gas or heating, or any engineering aspects, a special-purpose inspection and subsequent report from a suitably qualified and experienced expert should be arranged.

(4) This report does not comment on the legal title to the property, the property boundaries and whether any part of the building is within the property boundaries, or any aspect relating to any information held by any territorial authority in relation to the property. It is recommended that prospective purchasers engage their legal advisor to undertake relevant searches in relation to the Record of Title, Land Information Memorandum and any other relevant document or report as part of their purchase transaction process.

(5) Building Inspector Nelson Limited, its directors and employees shall not be liable in any respect of any claim arising directly or indirectly based upon, attributed to, or in consequence of reliance on this report by any person other than the named client and for any purpose other than that set out in the scope of this report. No liability or duty of care is accepted in relation to any third party that acquires this report, whether for value or otherwise, from the named client.

(6) Building Inspector Nelson Limited, its director and employees shall not be liable in any respect for any claim arising directly or indirectly based upon, attributed to, or in consequence of:

(a)The ingress of water into a building or structure and any physical loss of or damage to the building or structure arising directly or indirectly in whole or in part from the ingress of water; or

(b)Rot or other gradual deterioration of a building or structure arising directly or indirectly in whole or in part from the ingress of water; or

(c)Fungus, mould, mildew, yeast, rot or decay, gradual deterioration, micro-organisms, bacteria, protozoa or any similar or like forms in any building structure or any spore or toxin produced by such fungus, mould, mildew or yeast, micro-organism, bacteria, protozoa or any similar or like forms; or

(d)Any costs or expenses arising out of the abating, testing for, monitoring, cleaning up, removing, containing, treating, detoxifying, neutralising, remediating or disposal of, or in any way responding to or assessing the effects of fungus, mould, mildew or yeast, micro-organism, bacteria, protozoa or any similar or like forms; or

(e)The failure of any building or structure to meet or conform to the requirements for the New Zealand Building Code contained in the first schedule to the Building Regulations 1992 (or any amendment or substitution thereof) in relation to external water or moisture, or either durability or protection from external water or moisture entering the building or structure, or the effects thereof.

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8: Price, invoicing and payment

8.1 Price

The Price for the Inspection is set out in the Agreement Details.

8.2 Invoice and payment

(1) The Inspection Provider will invoice the Client for the Price.

(2) The Client must pay the Price on the payment terms directed by the Inspection Provider without set-off or counterclaim of any kind.

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9: Risk, indemnity and liability

9.1 Risk and liability

(1) The Client acknowledges and agrees that the Inspection and Report does not conclusively determine the condition of the Property and accepts and relies on the Inspection and Report solely at its own risk.

(2) The Client releases the Inspection Provider from all liability and Claims arising out of or in connection with:

(a) the Inspection;

(b) the Report; or

except to the extent that any such liability or Claim arose as a result of the negligence of the Inspection Provider, or a breach of this Agreement by the Inspection Provider.

(3) The Client releases all Third Party Providers from all liability and Claims arising out of or in connection with:

(a) the Inspection;

(b) the Report; or

except to the extent that any such liability or Claim arose as a result of the negligence of the Third Party Providers.

9.2 Indemnity

The Client indemnifies the Inspection Provider from and against any Claims arising out of or in connection with:

(1) the Inspection;

(2) the Report; or

(3) anything arising under this Agreement,

except to the extent that any such Claim arose as a result of the negligence of the Inspection Provider, or a breach of this Agreement by the Inspection Provider.

9.3 Limitation

To the full extent permitted by law, liability of the Inspection Provider for any breach of this Agreement arising as a result of the negligence of the Inspection Provider or for breach of any conditions or warranty implied in this Agreement or by law is limited to the Price.

9.4 Indirect losses

To the full extent permitted by law, the Inspection Provider will not be liable to the Client for any exemplary, aggravated or punitive damages or any indirect or consequential losses, any rectification costs or third party claims in connection with this Agreement.

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10: Complaints

(1) If the Client has a complaint with respect to the Inspection or Report, the Client must contact the Inspection Provider in writing no later than fourteen (14) days after the issue of the Report with any concerns (Complaint).

(2) The Client must allow the Inspection Provider access to the Property within twenty-one (21) days of the date of the Complaint in order to further investigate the Complaint. A response will then be provided by the Inspection Provider within a reasonable period after the Inspection Provider’s further investigation.

(3) If the Client is not satisfied with the response provided by the Inspection Provider, the Client must, within twenty-one (21) days of receipt of the Inspection Provider’s response, refer the matter to a mediator nominated by the Inspection Provider. The mediation costs will be shared equally or as agreed by the mediated settlement.

(4) If mediation fails, the matter may be taken to an Independent Arbitrator for resolution.

(5) Notwithstanding the existence of a complaint, each party will continue to perform its obligations under this Agreement.

(6) The parties must follow the complaint process set out in this clause and those processes have failed to resolve the dispute before commencing any proceedings.

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11: General provisions

11.1 Entire agreement

This Agreement is the entire agreement of the parties on the subject matter. All representations, communications and prior agreements in relation to the subject matter are merged in and superseded by this Agreement.

11.2 Amendment

This Agreement may only be amended or supplemented in writing signed by the parties.

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12: Definitions

Claim means any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature whatsoever arising and whether present or future, fixed or unascertained, actual or contingent whether at law, in equity, under statute or otherwise.

Conditions Conducive to Structural Damage means noticeable building deficiencies or environmental factors that may contribute to the occurrence of Structural Damage.

Finishing Elements means the fixtures, fittings and finishes applied or affixed to Primary Elements and Secondary Elements such as baths, water closets, vanity basins, kitchen cupboards, door furniture, window hardware, render, floor and wall tiles, trim or paint, but does not include furniture or soft floor coverings such as carpet and lino.

Inspection Provider means the party specified in the Inspection Details.

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 building.

Minor Defect means a defect other than a Major Defect.

Non-Invasive Inspection means visual inspection supplemented by sounding that does not mark the surface and may include limited use of equipment.

Property means the building compromising the residence on the Property identified in the Agreement Details together with 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 stormwater run-off within 30 m of the building comprising the residence on the Property, but within the property boundaries.

Primary Elements means those parts of a building providing the basic loadbearing capacity to the building, such as foundations, footings, floor framing, loadbearing walls, beams or columns as well as other structural building elements including those that provide a level of personal protection such as handrails, floor-to-floor access such as stairways and the structural flooring of the building such as floorboards.

Readily Accessible Areas means the areas of the Property that can be inspected pursuant to the terms and limitations as set out in clause 4 of the Agreement.

Report means the relevant inspection report setting out the results of the Inspection and provided to the Client within a reasonable time after completion of the Inspection by the Inspection Provider.

Secondary Elements means those parts of the building not providing loadbearing capacity to the building, or those non-essential elements which, in the main, perform a completion role around openings in Primary Elements and the building in general such as non-loadbearing walls, partitions, wall linings, ceilings, chimneys, flashings, windows, glazing or doors.

Serious Safety Hazard means any item that may constitute an immediate or imminent risk to life, health or property.

Structural Damage means a significant impairment to the integrity of the whole or part of a building falling into one (1) or more of the following categories:

(1) Structural Cracking and Movement – major (full depth) cracking forming in Primary Elements resulting from differential movement between or within the elements of construction, such as foundations, footings, floors, walls and roofs.

(2) Deformation – an abnormal change of shape of Primary Elements resulting from the application of load(s).

(3) Dampness – the presence of moisture within the building, which is causing consequential damage to Primary Elements.

Tests means where appropriate the carrying out of tests using the following procedures and instruments:

(1) Dampness Tests means additional attention to the visual examination was given to those accessible areas which the Inspection Provider’s experience has shown to be particularly susceptible to damp problems, including instrument testing using electronic moisture detecting meter of those areas and other visible accessible elements of construction showing evidence of dampness.

(2) Physical Tests means the following physical actions:

(a) Opening and shutting of doors, windows and drawers.

(b) Operation of taps.

(d) Tapping of tiles and wall plaster.

Third Party Providers means all parties engaged by the Inspection Provider to provide services with respect to, or in connection with, the Inspection including but not limited to, Formitize Pty Ltd (ACN 163 430 126) and Mobile Interactive Technologies Pty Ltd (ABN 27 156 432 389).