Our Terms of Trade

Particulars

A. This agreement is made on: ………………………….
B. The price payable is: ………………… including GST
C. The parties are:
i. Contractor: ………………… e.g. Joe Bloggs Builders Ltd trading as “Betta Property Compliance” (For the avoidance of doubt, the client is engaging Joe Bloggs Builders Ltd, NOT the individual inspector undertaking the inspection or the Contractor’s licensor, Betta Property Compliance Ltd).
ii. Client: ………………… being the person(s) who has/have accepted these terms and conditions.

The Contractor and the Client agree that the Contractor will supply the Works subject to the following terms and conditions:

1. Definitions

1.1 ’Contractor’ shall mean the Contractor named in the above Particulars at clause C i as a party to these terms and conditions, its successors and assigns.

1.2 ’Client’ shall mean the person(s) and/or legal entity and/or entities named or otherwise described in the above Particulars at clause C ii above as a party to these terms and conditions.

1.3 ’Works’ shall mean the Works described in the confirmation and invoice provided by the Contractor to the Client save that:

1.3.1 In respect of any building inspection and related Report to be supplied by the Contractor to the Client the scope of the Works is defined in clause 10 below.
1.3.2 In respect of any Methamphetamine sampling and related Report to be supplied by the Contractor to the Client the scope of works is defined in clause 11 below.

1.4 “Fee” shall mean, subject to clause 2, the price payable for the Works specified in the above Particulars at clause B inclusive of GST, if any.

1.5 “Report” shall mean any written Report supplied by the Contractor to the Client as part of the Works.

2. Price & Payment

2.1 Unless otherwise agreed in writing, the Client shall pay the Fee prior to the release of the Report or before the date that the Contractor commences the Works.

2.2 The Contractor reserves the right to change the Fee in the event of any variation from the plan of scheduled Work or specifications including, but not limited to, any revisit in terms of clause 12.3, or any variation as a result of additional Work required due to hidden or unidentifiable difficulties beyond the reasonable control of the Contractor. The Contractor will advise the Client of any change to the Fee in writing.

3. Time of Supply

3.1 The Works shall be supplied at approximately the date(s) and time(s) agreed by the Contractor and the Client. However, while the Contractor will make a reasonable effort to supply the Works at the date(s) and time(s) agreed, the Contractor reserves the right to vary the date(s) and time(s) that the Works are supplied at its absolute discretion.

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 Works for the purpose(s) of a trade or business, the Client acknowledges that the provisions of the Act do not apply to the supply of those Works by the Contractor to the Client.

5. Intellectual Property and Confidentiality

5.1 The Works, 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. The Contractor accepts no responsibility for anything done by any third party in reliance, whether wholly or in part, on any of the Works including, without limitation, the contents of the Report.

5.2 The Contractor 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 Works. 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 the Client’s professional advisers. For the avoidance of doubt, the Contractor may reproduce and sell to a third party a copy of the Report provided that all personal information of the Client shall be removed from such copy.

6. Default

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 Contractor from and against all costs and disbursements incurred by the Contractor 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 Contractor may have, if at any time the Client is in breach of any obligation (including the obligation to pay the Fee), the Contractor may, at its election, suspend or terminate the supply of Works to the Client and any of its other obligations under the terms and conditions. For the avoidance of doubt, the Contractor will not be liable to the Client for any loss or damage the Client suffers because the Contractor has exercised its rights under this clause.

7. Cancellation

7.1 The Contractor may, at will, cancel any contract to which these terms and conditions apply at any time before the Works are supplied by giving written notice to the Client. On giving such notice under this clause, the Contractor shall repay to the Client any sums paid in respect of the Fee. The Contractor 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 Contractor 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 Contractor 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 Contractor’s rights thereunder;

8.1.3 Enabling the Contractor 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 Contractor. The Client may request correction of that information and may require that the request be stored with that information. The Contractor may charge reasonable costs in providing access to that information.

9. Inspectors have no personal interest

9.1 The Contractor warrants that its inspectors have no interest, present or contemplated, in the subject building.

10. Scope of Works – Building Inspection and Report

10.1 Clause 10 (including its subclauses) defines the scope of the Works for any building inspection and Report supplied by the Contractor to the Client.

10.2 Any Report supplied by the Contractor will comply with NZS 4306:2005 or its successors. The Report is based on an “exceptions or information basis” i.e. listing only significant defects.

10.3 The Report is, subject to these terms and conditions including the limitations contained herein, based on an overall visual and non-invasive assessment, as at the date of inspection, of nine (9) areas of the building and surrounds which is the subject of the Contractor’s inspection: Exterior roof, roof space, external wall cladding, foundation and subfloor, plumbing system, electrical system, weathertightness, site improvements, pest and potential hazard, and other points of interest.

10.4 The Contractor will not carry out any destructive testing, or move any furniture or appliances. No disassembly of equipment, opening of walls, moving of furniture, appliances or stored items, or excavation will be performed. All components and conditions which by the nature of their location are concealed, camouflaged or difficult to inspect (such as, for example, plumbing, drainage, heating, framing, ventilation, insulation or wiring) are excluded from the Contractor’s inspection and from the Report.

10.5 The Report is not an all encompassing report detailing every minor defect or minor outstanding maintenance issue. The inspection and the Report are not intended to be technically comprehensive, or to imply that every component was inspected, or that every possible defect was discovered. The Report does not comment on the condition of a particular building element but rather rates the overall concern level. For example, if there are rotten weatherboards over the entire south wall of a building the level of concern is likely to be high (red) whereas if the property has a few weatherboards that require minor filling the concern level is likely to be low (green).

10.6 The Report is intended only as a general guide to help the Client evaluate the overall condition of the building.

10.7 The Report is not intended to be a warranty or guarantee of the current or future adequacy or performance of the building, its structure, systems, or their component parts.

10.8 The Report does not constitute any express or implied warranty of merchantability or fitness for use regarding the condition of the building and it should not be relied upon as such. Any opinions expressed regarding adequacy, capacity, or expected life of components are general estimates based on information about similar components and occasional wide variations are to be expected between such estimates and actual experience.

10.9 The Report is not:

10.9.1 An electrical report;
10.9.2 A plumbing report;
10.9.3 A gas report;
10.9.4 An appliances report;
10.9.5 A geological or geotechnical report (including, without limitation, any such report on foundation integrity or soil conditions);
10.9.6 A structural engineering report;
10.9.7 A survey report (including, without limitation, any such report regarding boundaries);
10.9.8 A comprehensive weathertightness report;
10.9.9 An earthquake or other natural disaster damage assessment;
10.9.10 A code of compliance report or certificate; or Safe & Sanitary report or certificate;
10.9.11 A property valuation;
10.9.12 A building warrant of fitness report or certificate.

10.10 Excluded from the Report are the following matters:
Geological stability, soil conditions, structural stability, electromagnetic radiation, environmental hazards, building codes, zoning ordinance violations, engineering analysis, water or air contaminants of any kind, toxic moulds, termites or other infestations, asbestos, formaldehyde, rotting (non visual), detached buildings, sheds, swimming pools and spas and related piping, private water systems, septic systems, sauna, specialized electronic controls of any kind, elevators, dumb waiters, water softener and purification systems, solar systems, internal system components, system adequacy or efficiency, prediction of life expectancy of any item or system, latent or concealed defects, appraisal of property value, repair estimates, playground equipment, efficiency measurement of insulation, lead paint, toxic or flammable materials, heating and cooling equipment including heat pumps and fireplaces, internal or underground drainage or plumbing, any systems which are shut down or otherwise secured, water wells (water quality and quantity), intercoms, security systems, heat sensors, liquefaction zones or flooding plains, neighbourhood amenity issues such as noise and traffic and flight paths, common areas (including roof, foundations or site improvements), legal title including covenants, planning and resource consent issues, long term maintenance planning, rental property tenancy inspections, heritage obligations, areas where reasonable access as defined by these terms and conditions is not provided to the Contractor, compliance with body corporate rules, compliance with any other governmental or non-governmental code or plan or statute or regulation, legal boundaries or other surveying issues, any component or system or item not specifically identified in the Report as having been inspected, and a full and comprehensive weathertightness investigation.

10.11 Non-invasive moisture readings will be taken by the Contractor at random. For the avoidance of doubt, the Client acknowledges that any building that suffers from rotting, leaky home syndrome and/or toxic mould is not covered by the Contractor’s inspection and Report. The Client further acknowledges the Contractor’s recommendation to obtain a full weathertightness investigation and report from a suitably qualified weathertightness professional.

10.12 For multi- unit properties, the Contractor will inspect and assess only the condition of the interior and accessible parts of the immediate exterior of the particular unit. For the avoidance of doubt, for multi-unit properties the Report will not include comment, advice and/or other statements in relation to common areas including any roof, foundation, site improvements and/or accessory units.

11. Scope of Work – Methamphetamine Sampling

11.1 Clause 11 (including its subclauses) defines the scope of Works for any methamphetamine sampling supplied by the Contractor to the Client.

11.2 The Contractor will obtain random samples from the subject building. Those samples will be forwarded to an IANZ laboratory, Hill Laboratories – R J Hill Laboratories Limited (“RJH”). RJH shall process the samples and produce a Report. The Contractor shall supply a Report to the Client.

11.3 The Client acknowledges that the random samples collected by the Contractor at the subject building may not be representative of the presence or absence of methamphetamine throughout the entire building or other areas of the building where samples have not been collected.

11.4 The sample collection by the Contractor and the Report produced is not a guarantee or warranty of the presence or absence of methamphetamine in the building, its structures, systems, or component parts.

11.5 The sample collection by the Contractor and the Report produced does not constitute any express or implied warranty of merchantability or fitness for use regarding the condition of the building and it should not be relied upon as such.

11.6 The Client acknowledges that:

11.6.1 Clause 10.9 applies with the addition that the Report is not a building inspection report;

11.6.2 Clause 10.10 applies with the addition that excluded from the Report is a building inspection.

11.7 For multi-unit properties, the Contractor will collect samples from the particular subject unit only.

12. Reasonable Access

12.1 The Client will ensure that the Contractor is legally entitled to have reasonable and unobstructed access to the building that is the subject of the Works including, without limitation, the roof cavity and foundation spaces.

12.2 Reasonable access is access that is safe, unobstructed and for sub-floor inspection, safe access is a minimum clearance of a 450 x 400m opening access door and a minimum crawl space of 500mm vertical clearance from the sub floor area. For the roof cavity those areas that can be safely accessed from a 3.6m ladder and a minimum crawl space of 610 x 610mm and a 500 x 400mm opening access door . Exterior roofs can be safely accessed from a 3.6 m ladder (or if the safe conditions are not available, the area can be subject to a visual inspection only subject to reasonable visibility from the ground).

12.3 Where the Contractor is required to re-visit a building because access was not gained at the agreed time of inspection, a further charge based on an hourly rate of $138 per hour, will be added to the Fee.

13. Limitation of Liability

13.1 For the purpose of this clauses 13.2 and 13.3 the Contractor includes and extends to the Contractor, the Contractor’s directors, the Contractor’s employees, the Contractor’s representatives, the Contractor’s contractors, the Contractor’s licensor (Betta Property Compliance Limited), the Contractor’s licensor’s directors, MSL and/or the Contractor’s agents.

13.2 Notwithstanding anything in these terms and conditions or at law or in equity to the contrary but subject to the Contractor’s obligations under the Consumer Guarantees Act (if applicable):

13.2.1 The Contractor 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 Contractor;

(ii) The Works including, without limitation, any inspection undertaken and Report published and supplied by the Contractor to the Client;

1. The use of the Works;
2. Any failure of the Works to meet reasonable industry standards for any reason whatsoever (including, without limitation, negligence);

13.2.2 The Contractor’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 Contractor’s election, to the Price or remedying any defect in the Works caused by the Contractor’s breach of obligation; and

13.2.3 The Client indemnifies the Contractor against all and any claim(s) by any third party for losses, including legal costs on a solicitor and client basis, (whether arising under tort (including negligence) equity or otherwise) arising from:

(i) Any act of, or omission by, the Contractor in its performance of these terms and conditions; and/or

(ii) Any act of, or omission by, the Client in its performance of these terms and conditions.

13.3 Without limiting clauses 13.1 and 13.2, the Client acknowledges that because the following matters are outside the scope of the Works, and for the avoidance of doubt:

13.3.1 The Contractor shall not be liable for any direct, indirect or consequential loss suffered by the Client arising howsoever from:

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

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

(iii) 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;

(iv) 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, yeast, rot or decay, gradual deterioration, micro-organisms, bacteria, protozoa or any similar or like forms, in any building or structure; and/or

(v) The failure of any building to meet or conform to the requirements of the Building Act and the Building Code in relation to external water, moisture, durability, liquefaction, ground movement or erosion.

14. General

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 Contractor in requiring performance of any obligation of the Client pursuant to these terms and conditions is not a waiver of the Contractor’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 Contractor. The Contractor 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 Contracts (Privity) Act 1982, to enforce any of its terms.

14.8 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 Contractor.

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.

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