Nestor Building Report Terms and Conditions

1. Relationship and Key Terms

1.1 These terms and conditions (the Terms) apply when you wish to order through your Provider a building report using the Nestor System (the system).

The system is a service to your Provider, which allows ordering of a building report through an online automated system from certain building companies who are registered to provide building reports through the system. The system automatically allocates a request for a building report to a builder who is registered to use the system.

The relevant building companies, as suppliers, deliver the building report services and pay a service, access and processing fee to Nestor (the owner or licensee of the system) to use the 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 building report, you agree to these standard terms and conditions (the Terms) for the benefit of Nestor and the building company undertaking the building report.

You do so in consideration of the building company providing through the System a building report to you and or your Provider for your Provider´s use. These Terms will govern the building report you have requested, unless specifically agreed otherwise in writing by the applicable building company and Nestor.

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. Fees and Timeframes

2.1 The fee for the Report, and timeframe for completion, is as detailed to you at the time you requested the building report. All turnaround times given orally or in writing in respect of the performance of the building report are estimates only. Neither Nestor nor the building company shall be responsible for any delays in the delivery of a Report.

2.2 If you request an Urgent Report:

1. The building company will endeavour to deliver the Urgent Report within three (3) Business Days for properties with a Service Level Time of up to 8 days or within four (4) Business Days for properties with a Service Level Time of 10 days, on confirmation of payment of the order (or such other timeframe as you agree with the building company);
2. An urgency fee (as quoted by the system at the time of the request) will be payable for any Urgent Report, provided that if you do not receive it within the urgency timeframe (or the timeframe agreed with the building company), you will not be charged the urgency fee, unless the reason you have not received the Urgent Report is because you have failed to pay the fees or is otherwise due to an act or omission on your part.

2.3 The building report fee is required to be paid either by account to account, credit or debit card or by internet transfer prior to the builder being authorised to begin the building report. The building company and Nestor retain the right to modify the fee if the building 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 building report if the building report is of a complex nature including, without limitation, in the following circumstances:

1. Where there is a suspicion of a leaky building or a site with contamination issues;
2. Where there are multiple dwellings or units on the same site;
3. Where there are other circumstances that will result in additional complexity for the building report.

Where the building company needs to charge an additional fee, it will stop providing building report 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 building report request will be cancelled and you may have to pay a cancellation fee in accordance with clause 8.

2.5 The Building company 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 the Bank, where appropriate) and be held on the system. Nestor will email you a copy of the Report.

3. Your obligations

3.1 You must:

1. Pay all fees, without set off or deduction of any kind, at the time of ordering a Report and, in any event, prior to the Report being made available to you or your Provider;
2. Provide Nestor and the building company with full and frank disclosure of all information and other facts that may be relevant to a building report of the Property; and
3. Allow the building company access to the Property, and provide all such other reasonable assistance as the building company may require in performing the building report services.

4. Services and Assumptions

4.1 The building report services will be performed by the building company solely for the internal use by the parties to whom the Report is addressed for the purpose of assisting a lending decision by the Bank.

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 assigned without the prior written consent of the building company (which consent the building company 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 building company with a full and frank disclosure of all information and other material facts which may affect the preparation of the Report. No responsibility or liability for the accuracy of the Report is accepted whatsoever unless such full and frank disclosure has been made to the building company.

4.4 Unless otherwise agreed, for building reports, the building company will undertake all reasonable endeavours to undertake an internal and external building report inspection of the Property, which will comprise inspecting the interior of all major buildings where access is available. However, the building company 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 Neither Nestor nor the building company purports to provide in respect of the Property:

1. A site or structural survey; or
2. Any boundary survey of the Property and unless otherwise stated the building company will assume that all improvements lie within the title boundaries; or
3. Any testing or verification of the existence of the supply and operation of water, power, phone, wastewater and storm-water disposal systems or other services and utilities unless otherwise stated; or
4. Any environmental or geotechnical survey; or
5. Any view on the possible presence of archaeological sites or sites of historical or cultural significance.

4.6 Unless otherwise stated in the Report, each Report is prepared on the basis of the following assumptions:

1. That all Territorial Local Authority building codes, regulations and by-laws have been complied with, a Code Compliance Certificate is obtained for any construction, and that all building and other work has been completed strictly in accordance with all relevant requirements;
2. That the Property has no adverse or beneficial information recorded on a property file kept by the Territorial Local Authority or Regional Authority;
3. There are no detrimental registration(s) affecting the Property other than those appearing on the certificate(s) of title for the Property. The building company will not normally undertake investigations into detrimental registration(s) affecting the Property unless specifically requested to do so;
4. The Property is stable and free from contamination (including asbestos, other chemicals, toxic waste or other potentially hazardous materials) and is in an area that is not subject to liquefaction or likely to be subject to liquefaction and is in an area that is not likely to be subject to other instances of ground or sub-soil instability;
5. That any information supplied to Nestor or the building company by you or another party (including professional bodies such as REINZ, RPNZ or local authorities) is complete, reliable and accurate;
6. There are no easements, encumbrances or registrations (including Waahi Tapu or Historic Places Trust registrations) other than those (if any) disclosed on the certificate(s) of title for the Property; and
7. There are no side agreements or arrangements in place that would have an adverse effect on the building report of the Property.

If any one or more of these assumptions is not correct, then neither Nestor nor the building company 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 building report will be undertaken on an inclusive of GST (if any) basis.

4.8 The final written Report supplied to you will supersede all previous information and opinions relating to the building report.

5. Liability

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 building report; such services and the Report are solely being supplied by the building company. Nestor’s involvement is limited to providing the system for ordering and delivery of the Report.

5.2 The total liability of Nestor and the building company to you (with respect to a building 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 building company, 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 of the Report, except to the extent that such a claim is caused or contributed directly by the negligence of the building company, Nestor or the Provider (as applicable).

5.4 You agree that neither Nestor nor the building company will be liable to you in any way related to these Terms or any building report, whether in tort, equity, under statute or otherwise for:

1. Loss of profits or loss of revenue (in each case, whether direct or indirect);
2. Any indirect, special or consequential loss or damage whatsoever (except in instances of fraud or wilful concealment).

5.5 In preparing the Report, the building company (and its builders) shall exercise the degree of skill, care and diligence normally expected of a competent professional. 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 or the building company 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. Warranties Excluded

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. Dispute

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 endeavour 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:

1. The mediation will be conducted under the LEADR New Zealand Incorporated (LEADR) standard mediation agreement.
2. If the parties do not agree on a mediator or the mediator’s fees within 5 Business Days of receipt of the notice of mediation, the mediator shall be appointed or the fees set by the chair of LEADR (or his/her nominee) at the request of either party.
3. The parties shall bear the mediator’s fees equally.
4. If Nestor is party to the mediation, the mediation shall take place in Tauranga. If Nestor is not party to the mediation the mediation shall take place in the city town in which the building company is located.

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. Termination

8.1 You may terminate the building report services by written notice to Nestor at any time prior to the Report being issued. As soon as this notice is received, the building company will be instructed to stop performing the building report services. Termination of the building 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:

1. Where the building report services have been terminated prior to the building company completing a physical inspection of the Property, no fee is payable by you;
2. Where the building report services have been terminated and the Building company has completed a physical inspection of the Property, but not completed a Report, 50% of the agreed fee is payable by you for properties with a Service Level Time of up to 8 days and 75% of the agreed fee is payable by you for properties with a Service Level Time of 10 days; and
3. Where the building report services have been terminated and the building company has completed a physical inspection of the Property and the Report (which has been uploaded onto the system website within two (2) hours of termination of the building report services for properties with a Service Level Time of up to 8 days and within four (4) hours of termination of the building report services for properties with a Service Level time of 10 days) the full agreed fee is payable by you.

8.4 Where you cancel building 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 or 8.3.

9. Intellectual Property

9.1 You acknowledge and agree that:

1. Nestor shall own all intellectual property rights in all existing materials and data used and supplied by Nestor to the building company; and
2. The building company shall own all the intellectual property rights in all existing materials and data used and supplied by the building company in providing the building report services (including all Reports).

You acknowledge that you do not have or obtain any intellectual property rights, or interest in any such data or materials.

9.2 The building company 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 building company and Nestor.

10. Force Majeure

10.1 Neither Nestor nor the building company will be liable to you for any failure to comply with these Terms due to circumstances beyond their reasonable control.

11. Information plus Privacy Act

11.1 You authorise each of Nestor and the building company 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 of the building company (as applicable).

11.2 Any personal information collected and held by Nestor or the building company under, or in connection with, these Terms will be used for the purposes related to the provision of the System (in the case of Nestor) and for providing the building report services (in the case of the building company). Under the Privacy Act 2020, you have the right of access to and correction of personal information about you held by Nestor and the building company.

12. Contracts (Privity) Act 1982

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 building company, the Provider and the Bank (if the Bank is not the Provider).

13. Miscellaneous

13.1 The parties agree that these Terms constitute the entire agreement between the parties and supersedes and extinguishes all earlier negotiation, understandings and agreements, whether oral or written, between the parties relating to the subject matter herein.

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.