Terms and Conditions – Registered Banks
Explanation
1. The following Terms and Conditions are the Standard Terms and Conditions that apply to all Valuation and/or Valuation Services provided by Preston Rowe Paterson that apply to a Registered Bank, unless otherwise expressly agreed in writing.
2. These Terms and Conditions form part of the appointment of Preston Rowe Paterson by the Client to provide the Valuation and/or Valuation Services.
3. The Valuation and/or Valuation Services are provided by Preston Rowe Paterson subject to these Terms and Conditions.
Definitions
4. The following definitions apply to these Terms and Conditions and the provision of Our Valuations, and/or Valuation Services:
– ‘Confidential information’ means information that:
a. Is by its nature confidential;
b. Is designated by Us as confidential;
c. You know or ought to know is confidential; and Includes, without limitation;
d. Information comprised in or relating to any of Our intellectual property in the Services or any reports or certificates provided as part of the Services; and the Quotation / scope of works which We have provided to You.
– ‘Date Of Valuation’ means, in relation to any Valuation or Valuation Services, the date of inspection or the specific date as at which Our opinions are stated to apply (the Relevant Date).
– ‘Director’ means a Director noted on the New Zealand Companies Office records for Preston Rowe Paterson.
– ‘Disbursements’ mean out-of-pocket expenses such as travel and accommodation costs, Title searching costs, Costs associated with procuring expert reports or certificates of compliance from relevant professionals or authorities, which may be required to assist in ascertaining the value of the property. These expenses will be passed on to You at cost.
– ‘Fee’ means the amount agreed to be paid for the Services by You as set out in the Quotation.
– ‘Parties’ means You and/or Us as the context dictates.
– ‘Quotation’ means the written quote provided by Us in relation to the Services.
– ‘Relevant Date’ means the specific date that Our opinion is stated to apply where We are instructed to value at a specific date other than the date of inspection.
– ‘Valuation’ shall include a Valuation Report, Valuation Services, or feasibility study, made or given in relation to any real or personal property, freehold or leasehold property, asset, liability or item or items of plant and machinery, proposed development, infrastructure, carbon, water or native title property right, business, fixtures, fittings or other property.
– ‘Valuation Services’ means the asset management, property management, facilities management and shall include any Consultancy Service by way of oral or written advice, opinion, recommendation or statement communicated to the Client by us.
– ‘Valuer’ means the individual valuer that has undertaken the Valuation or Valuation Services.
– ‘We’, ‘Us’, ‘Our (s)’ means Preston Rowe Paterson, Our employees, contractors, servants and agents.
– ‘You’, ‘Your’ means the Client engaging Us to perform the Valuation or Valuation Services.
Scope of Work/Quotation
5. Prior to commencing work, We will provide You with a Scope of Work/Quotation that sets out who the Valuation or Valuation Services is for; the purpose for which it is being prepared. You agree that:
a. You will not use any advice We provide for any purpose other than as stated in the Quotation;
b. You will not pursue any claim against Us for any loss You suffer because You have used Our advice for any other purpose;
c. You will keep this report confidential, unless otherwise agreed by Us in writing.
Your Obligations
6. You warrant that the instructions and subsequent information supplied by You contain a full and frank disclosure of all information that is relevant to Our provision of the Valuation or Valuation Services. You also accept all risk and any loss that might occur should You withhold any relevant information from Us.
7. You warrant that all third-party expert or specialist reports provided to Us by You for the purpose of Us providing the Valuation or Valuation Services are provided with the authority of the authors of those reports.
8. You authorise and licence Us to incorporate Your intellectual property within Our report(s).
9. The Valuation and all Valuation Services are provided by Us solely for the use of parties identified in our report as the ‘Client’, Prepared For’ and any ‘Other Intended User’. You will not release any part of Our valuation or consultancy report/letter or its substance to any third party without the written consent of one of Our Directors. Such consent will be provided at Our absolute discretion and on such conditions as We may require including that a copy of these Terms and Conditions must be provided to such third party. This clause shall not apply to persons noted as recipients in Your prior instruction to Us or in the Quotation provided. You are obligated to provide any such recipient with a copy of these Terms and Conditions.
10. If You release any part of the Valuation or Valuation Services or its substance with Our written consent, You agree: a) to inform the other person of the Terms of Our consent; and b) to compensate Us if You do not do so. We have no responsibility to any other person even if that person suffers damage as a result of any other person receiving this Valuation or Valuation Services.
11. You agree that We do not and will not assume any responsibility to any person other than the parties identified in our report as the ‘Client’, Prepared For’ and any ‘Other Intended User’ for any reason whatsoever including, without limiting the generality of the foregoing, for breach of contract, negligence (including negligent mis-statement) or wilful act or default of itself or others by reason of or arising out of the provision of the Valuation or Valuation Services and notwithstanding that any damages have been suffered or incurred by that person as a result of the provision of this Valuation or Valuation Services to the above named parties or the use of either of them (or any part of either of them) by the above named parties for any purpose whatsoever.
12. In consideration for the performance of the agreed Services, the party invoiced promises to pay PRP the total fees and disbursements (excluding any Deposit paid) set out in the invoice provided, within 14 days of the issuance of an invoice by PRP (A full GST invoice with payment options will be emailed separately to the applicable party at the same time the assignment is completed/submitted) unless otherwise dealt with in the Quotation. We reserve the right to submit interim invoices for our fees and disbursements incurred in preparing our advice, where it is considered necessary to do so. Fees that remain unpaid for a period of 30 days or more can/will attract an administration charge of 2% of the total of the invoice calculated per month or part thereof. Unpaid accounts of over 90 days can/will be passed to Our collection agency and all debt collection costs and all legal and related costs incurred in the recovery of any unpaid account will be charged to the invoiced party in addition to the outstanding amount. You agree that You are instructing Us to provide You with Our opinion regarding a property/properties. While We will be happy to discuss Our findings with you, should You disagree with Our opinion Our fees will remain payable as per the terms advised above.
13. Where the invoiced party is an individual, they accept personal liability to pay the total fees and disbursements including GST as set out in in our invoice. Where the invoiced party is in joint names – they accept they are jointly and severally liable to pay the total fees and disbursements including GST as set out in in our invoice. Where the invoiced party is an entity, the person instructing PRP on the invoiced entities behalf, confirms they are authorised to do so and the entity accepts that the individual Director(s) and or Shareholder(s) and or Trustee(s) and or Partner(s) are personally and or jointly and severally liable to pay the total fees and disbursements including GST as set out in in our invoice. Should the person instructing PRP on the invoiced individual(s) or entities behalf not be authorised to do so, they agree to be personally liable to pay the total fees and disbursements owing in the event of the invoiced party failing to pay.
14. You agree that We reserve the right to reconsider or amend the Valuation or Valuation Services, or the Fee set out in Our Quotation to You, if We identify information or facts that were not provided to Us in the at the time of quoting and/or the time required to complete the task is appreciably more than We initially anticipated from the information You provided Us. In such circumstances, once We have identified additional issues that necessitate additional work, We will advise You of the additional fees for additional time required to complete the task. Following the release of our report, We confirm that We are happy to provide a reasonable amount of clarification or explanation relating to the report issued. However, if We regard that the nature of the enquiry extends further than clarification, We reserve the right to invoice our time at the hourly rates quoted in our original Scope of Works. We confirm that we will contact You if we intend invoicing you at our quoted hourly rates for any ongoing advice required.
15. You agree that neither the whole nor any part of Our Valuation or the substance of any of Our Valuation Services may be communicated to any third party (whether by way of inclusion in a document, circular, statement, prospectus, Product Disclosure Statement (PDS), public offer document or otherwise) without first obtaining the written consent of one of Our Directors. Neither the whole nor any part of Our Valuation report or Valuation Services report or any reference to it may be included in any published document, circular or statement, prospectus, Product Disclosure Statement (PDS), public offer document, nor published in any way, without written approval by one of Our Directors as to the form and context in which Our Valuation or Valuation Services may appear. Notwithstanding the foregoing, the Client agrees that in the event that it does communicate to a third party the whole or any part of this Valuation or the Valuation Services it shall also communicate to that third party these Terms and Conditions. Furthermore, You agree to indemnify Us in the event of any failure to do so.
16. You agree that every right, immunity, exemption and limitation or liability in these terms and conditions shall continue to have its full force and effect in all circumstances notwithstanding any breach of contract or the Terms and Conditions hereof by Us or any person entitled to the benefit of these Terms and Conditions.
17. You agree that if any provision or any part of a provision hereof is unenforceable for any reason whatsoever, such unenforceability shall not affect any other part of such provision or any other provision of these Terms and Conditions.
Intellectual Property
18. All Our intellectual property contained within any advice We provide, remains Our property. We only grant You licence to use Our intellectual property to carry out the purpose for which the advice was provided.
Mortgage Valuations
19. Where the Services are provided for mortgage purposes, You agree that You will not use the Valuation or Valuation Services where the property:
a. is used as security other than by first registered mortgage;
b. is used as part of a group of securities (except where the property forms part of a trust); or
c. is used as security for more than one loan.
20. Any wavier of this requirement must be approved in writing by one Our Directors.
21. We will not accept any liability or responsibility to second or subsequent mortgagees whom have not instructed Us.
22. The Australian & New Zealand Valuation and Property Standards reuire that, unless specifically requested by a lender, the valuation report should make no specific numerical recommendation or suggest the maximum loan amount expressed as a percentage of value. We consider that the subject property is suitable for First Mortgage lending subject to the risks identified in our report.
Length of Time Our Valuation or Valuation Services can be relied upon
23. Our Valuation and or Valuation Services are current at the Date of Valuation only. The value assessed in Our Valuation or Valuation Services may change significantly and unexpectedly over a relatively short period of time (including as a result of general market movements or factors specific to the particular property). We do not accept liability for losses arising from such subsequent changes in value. Without limiting the generality of the above comment, We do not assume responsibility or accept any liability where the Valuation is relied upon after the expiration of ninety (90) days from the date of the Valuation, or such earlier date if You become aware of any factors that have any effect on the Valuation. Notwithstanding the above You accept that Our Valuation and or Valuation Services are current as at the Date of Valuation only and no representation or warranty is made as to the future value of the property.
24. You acknowledge that We reserve the right, at Our absolute discretion, to determine whether or not to assign Our Valuation to any third party. Without limiting the extent of Our discretion, We may decline a request for assignment where:
a. the proposed assignee is not a major recognised lending institution (such as a bank or other lender regulated by the Reserve Bank of New Zealand Act 1989);
b. the assignment is sought in excess of 90 days after the date of valuation;
c. We consider that there has been a change in conditions which may have a material impact on the value of the property;
d. the proposed assignee seeks to use the valuation for an inappropriate purpose; or
e. Our Fee has not been paid in full.
25. Where We decline to provide an assignment, We may be prepared to provide an updated Valuation on terms to be agreed at that time.
26. In the event that You request Us to assign Our Valuation and We agree to do so, You authorise Us to provide to the assignee a copy of these Terms and Conditions, the original Quotation and any other document, including instructions provided by You, relevant to the scope of Our Valuation or Valuation Services.
27. We act for the parties to whom this Valuation is addressed to and only the parties identified in our report as ‘Client’, Prepared For’ and any ‘Other Intended User’ are entitled to rely on this Valuation.
We make no representations to any other party, including, specifically, the borrower and assume no responsibility to any other party in any way.
No other party must rely in any way on this valuation report, as its sole purpose is for use by the lender in assessing the value of the subject property for mortgage security purposes.
Specifically, no other party should rely upon the report for the purpose of deciding whether or not to enter into a transaction or to alter their financial position, or for the purpose of seeking finance from another party, as the report has not been prepared for any other party’s benefit or for any purpose other than assessing the subject property for mortgage security purposes.
We do not authorise the disclosure of the Valuation report to any third party and Our duty of care at law is owed only to the Client and no other party should anticipate having any legal recourse against us.
Property or Valuation Circumstance Specific Qualifications, Assumptions and Conditions Precedent within Our reports
28. We are providing You with Our professional opinion as valuers. Our opinion is usually provided by way of a Valuation report. That report will set out a number of important qualifications, assumptions and conditions precedent which We may need to make, in addition to these Terms and Conditions, relative to the circumstances of the particular property or properties (real or personal property) under consideration.
29. You agree to read these qualifications, assumptions and conditions precedent carefully, and understand that if the assumptions that we have made or relied on are circumstances that do not prevail or eventuate, or are found later to be inaccurate, Our opinion as to value may be materially different. You agree to solely bear the risk in relation to any loss You might suffer, should this occur.
30. The qualifications, assumptions, and conditions precedent that We make will usually depend on the circumstances of the property being valued and are made in relation to matters that We do not have expertise to verify, or We cannot verify information provided to Us within the time required to complete the valuation. These will be set out in detail in the Valuation, Valuation Service report that We provide to You.
31. These qualifications, assumptions and conditions precedent typically will relate to:-
a. Land contamination and environmental risk;
b. Town Planning Information;
c. Town Planning and Development Controls and Consents;
d. Title including Notifications on Title such as Easements, Caveats, Restrictions and other dealings;
e. Building Areas;
f. Building Structural Integrity;
g. Building compliance with the New Zealand Building Code;
h. Pest Infestation;
i. Leases, Licences and Tenancies;
j. Plant and Equipment within Buildings;
k. The veracity of and sources of Sales and Letting Information and Transaction Data;
l. The nature of forecasting, future value assessment and discounted cash flow analysis;
m. The basis of Value where access to the property is restricted; and
n. Whether or not the property has been completed as part of a development
32. We note for the purposes of the instructed valuation, assessment or consultancy assignment that We have assumed that the property conforms to all legislative requirements including the Resource Management Act 1991, the New Zealand Building Code, the Building Act 2004, the Health and Safety at Work Act 2015, the Fire Safety and Evacuation of Buildings Act 1992, the Disabled Persons Community Welfare Act 1975, and Historic Places Trust registration; and any other relevant legislation and regulations. Unless otherwise stated in our written advice, We have not obtained a Land Information Memorandum (LIM) or Property Information Memorandum (PIM) for this property. We reserve the right to review our opinion of value or assessment, should a Land Information Memorandum (LIM) or Property Information Memorandum (PIM) or any other information of the Territorial Local Authority (TLA) property file confirm any non conformance with applicable legislation.
33. We note for the purposes of the instructed valuation, assessment or consultancy assignment that We are not qualified to provide a Geotechnical Survey and We confirm that we have not done so. We further assume that the land is as described in the report and that buildings (if any) are constructed on firm and suitable ground for the existing and/or potential development and do not require significant additional retaining, remediation or drainage.
34. You agree that We will include property specific qualifications, assumptions and conditions precedent within Our reports as circumstances require. Furthermore, You agree that it is Your responsibility to carefully read and consider these qualifications, assumptions and conditions precedent and discuss them with Us if they cause You any concern.
Publication Report Disclaimer
35. The information provided within this publication should be regarded solely as a general guide. We believe that the information herein is accurate however no warranty of accuracy or reliability is given in relation to any information contained in this publication. Nor is any responsibility for any loss or damage whatsoever arising in any way for any representation, act or omission, whether expressed or implied (including responsibility to any person or entity by reason of negligence) accepted by Preston Rowe Paterson or any of its associated offices or any officer, agent or employee of Preston Rowe Paterson.
PRP Reassignment Policy
36. We are unable to reassign / extend liability to any other party beyond 90-days from the date of Valuation. This is a condition of Our professional indemnity insurance policy. If this report is required to be reassigned / re-addressed beyond 90 days, then this may require re-inspection by the valuer with an update fee charged.