1.1 These Terms apply when you order through your Provider (or at their request) a Report using the Nestor System. The Nestor System is a service to you and your Provider that automatically allocates a request for a Report to an approved Builder through an online automated system. Builders prepare and deliver Reports and pay a service, access and processing fee to Nestor (the owner of the Nestor System) to use the Nestor System.
1.2 By ticking the I accept box and or by placing or confirming an order (either directly or through your Provider) for a Report, you agree to the Terms for the benefit of Nestor and the Builder undertaking the Report. You do so in consideration of the Builder providing through the Nestor System a Report to you and or your Provider (as the case may be).
1.3 In these Terms, unless the context indicates otherwise:
1.4 These Terms may be modified by Nestor at any time by uploading new terms onto the Nestor website.
2.1 The fee for the Report, and timeframe for completion, is as detailed to you at the time you request the Report. All turnaround times given orally or in writing in respect of completion of the Report are estimates only. Neither Nestor nor the Builder shall be responsible for any delays in the delivery of a Report.
2.2 If you request an Urgent Report:
2.3 The Report fee is required to be paid either by direct credit, credit or debit card or by internet transfer prior to the Builder being authorised to begin the Report. The Builder and Nestor retain the right to modify the fee if the work required to prepare the Report is more complex than initially described (including, without limitation, on account of one or more of the circumstances listed in clause 2.4 below). Should this be the case, the adjusted fee will be re-quoted to you for your approval.
2.4 You may be charged additional fee(s) (over and above the standard fee and urgency fee) for a Report if the Report is of a complex nature including, without limitation, in the following circumstances:
Where the Builder needs to charge an additional fee due to the above it will stop providing its services and will only continue to perform the services if it gains your approval to such additional fee. If you do not agree to the additional fee, the Report request will be cancelled and you may have to pay a cancellation fee in accordance with clause 8.
2.5 The Builder will ensure that you are kept up to date regarding any issues with provision of the Report outside the initial timeframes.
2.6 The Report will be delivered to your Provider and held on the Nestor System. Nestor will email you a copy of the Report.
3.1 You must:
4.1 The Report services will be performed by the Builder solely for the internal use by the parties to whom the Report is addressed for the purpose of assisting a lending decision by the Provider.
4.2 The Report is confidential and is only for the use of the parties to whom it is addressed and for the purpose stated in the Report. No liability or responsibility is accepted to any person other than to an addressee of the Report. The Report must not be provided to any third party without the prior written consent of the Builder (which consent the Builder may withhold in its absolute discretion and to which (if given) it may attach such conditions as it thinks fit).
4.3 The Report is prepared on the basis that you have provided the Builder with a full and frank disclosure of all information and other material facts which may affect the preparation of the Report.
4.4 Unless otherwise agreed, for Reports, the Builder will use all reasonable endeavours to undertake an internal and external inspection of the Property, which will comprise inspecting the interior of all major buildings where access is available. However, the Builder may not inspect the interior of some minor buildings, which are not considered to have a material impact on the value of the Property.
4.5 The Builder does not provide in respect of the Property:
4.6 Unless otherwise stated in the Report, each Report is prepared on the basis of the following assumptions:
If any one or more of these assumptions is not correct, or any other assumption not listed but likely to have a material effect on the Report, then neither Nestor nor the Builder accepts any responsibility for any such incorrect assumptions.
4.7 The Report does not make any allowances for any liability which may arise for payment of income tax or any other property related tax. The Report will be undertaken on an inclusive of GST (if any) basis.
4.8 The final written Report will supersede all previous information and opinions relating to the Report.
5.1 You expressly acknowledge that to the maximum extent permitted by law each of Nestor and the Provider is not responsible for or in any way liable to you in respect of or in connection with supply of the Report; such services and the Report are solely being supplied by the Builder. Nestor’s involvement is limited to providing the Nestor System for ordering and delivery of the Report.
5.2 The total liability of Nestor and the Builder to you (with respect to a Report) shall be limited to the provision of a replacement Report, or a refund of the fees paid for such a Report.
5.3 You agree to indemnify (severally) the Builder, Nestor and the Provider against any action, claim, proceeding, demand, damages, loss, liability, cost, or expense which any of them may suffer or incur arising out of, or connected with, the preparation and/or use of the Report, except to the extent that such a claim is caused or contributed directly by the negligence of the Builder, Nestor or the Provider (as applicable).
5.4 You agree that neither Nestor nor the Builder will be liable to you in any way related to these Terms or any Report, whether in tort, equity, under statute or otherwise for:
5.5 In preparing the Report, the Builder shall exercise the degree of skill, care and diligence normally expected of a competent professional in their area of expertise. While every effort will be made to ensure the accuracy of the opinions, information and forecasts expressed in the Report, no liability is accepted by Nestor for any incorrect statement, information or forecast within.
5.6 The report may be relied upon for a maximum period of 60 days from the date of the Report. Should the Report specify a period shorter than 60 days then that shorter period will take precedence.
6.1 All conditions, guarantees and warranties (either express or implied by legislation, common law and equity or otherwise) relating to any Report supplied in connection with these Terms are expressly excluded to the maximum extent permitted by law.
6.2 Where the services under these Terms are supplied for business purposes the Consumer Guarantees Act 1993 shall not apply. However, subject to the foregoing, nothing in these Terms is intended to have the effect of contracting out of the provisions of the Consumer Guarantees Act 1993 and all provisions of these Terms shall be modified to the extent necessary to give effect to that intention.
7.1 If there is a dispute between the parties in relation to these Terms, either party may give the other party (the ‘second party ‘) notice of the nature and details of the dispute. Within 10 Business Days of receipt of the notice of dispute by the second party, appropriate representatives of the relevant parties shall meet to resolve the dispute.
7.2 If the dispute is not resolved within 15 Business Days of receipt of the notice of dispute by the second party, either party may by notice to the other relevant party(s) refer the dispute to mediation, and the following shall apply:
7.3 Nothing in this clause 7 will preclude a party from seeking urgent interlocutory relief before a court. In addition, either party may take any action if the dispute is not resolved, or mediation has not taken place, within 30 Business Days of receipt of the notice of dispute by the second party.
8.1 You may terminate the Report services by written notice to Nestor at any time prior to the Report being issued. As soon as this notice is received, the Builder will be instructed to stop performing the Report services. Termination of the Report services shall not prejudice or affect the accrued rights, claims or liabilities of any of the parties.
8.2 A cancellation fee will be payable by you as follows:
8.3 Where you cancel Report services under this clause 8 and have already paid for those services in full Nestor will refund to you the amount paid less the applicable cancellation fee under clause 8.2.
9.1 You acknowledge and agree that:
You acknowledge that you do not have or obtain any intellectual property rights, or interest in any such data or materials.
9.2 The Builder grants you a non-exclusive, royalty free, non-transferable limited licence to use the Report(s) solely for your personal or internal business purposes (as applicable) and only for the purpose for which they were produced.
9.3 Neither the whole, nor any part of a Report may be referred to, reproduced or included in any published document, circular or statement without the prior written approval of the Builder and Nestor.
10.1 Neither Nestor nor the Builder will be liable to you for any failure to comply with these Terms due to circumstances beyond their reasonable control.
11.1 You authorise each of Nestor and the Builder to collect all information it may require in connection with the Property from any third parties and authorise those third parties to release that information to Nestor or the Builder (as applicable).
11.2 Any personal information collected and held by Nestor or the Builder under, or in connection with, these Terms will be used for the purposes related to the provision of the Nestor System (in the case of Nestor) and for providing the Report services (in the case of the Builder). Under the Privacy Act 2020, you have the right of access to and correction of personal information about you held by Nestor and the Builder. You can view our Privacy Policy here.
12.1 It is acknowledged by you that for the purposes of the Contracts (Privity) Act 1982, these Terms contain provisions which confer a benefit on, and are intended to be enforceable by, the Builder and the Provider.
13.1 The parties agree that these Terms constitute the entire agreement between the parties and supersedes and extinguishes all earlier negotiations, understandings and agreements, whether oral or written, between the parties relating to the subject matter of these Terms.
13.2 These Terms shall be governed by New Zealand law, and the parties submit to the non-exclusive jurisdiction of the New Zealand courts.
13.3 If any provision of these Terms becomes or is held invalid, unenforceable or illegal for any reason, and in any respect, that provision shall be severed from the remaining terms, which shall continue in full force and effect.