PRESTON ROWE PATERSON – TERMS & CONDITIONS
General Terms and Conditions
Explanation
- The following Terms & Conditions are the standard terms and conditions that apply to all Services provided by Preston Rowe Paterson Australasia Pty Ltd and our Franchise Entities, Associated Entities, and Related Bodies Corporate (Preston Rowe Paterson).
- These Terms & Conditions form part of the appointment of Preston Rowe Paterson by the Client to provide the Services.
- Preston Rowe Paterson is a member of a Limited Liability Scheme in the meaning of the Professional Standards Act 1994.
- The Valuation and all Services are provided by Preston Rowe Paterson subject to these Terms & Conditions, which includes a limitation of liability clause. The Client and Valuer agree that these Terms & Conditions apply to all work done by the Valuer for the Client, and that these Terms & Conditions will prevail in the event of any inconsistency between these Terms & Conditions and any quote template, letter of instruction or other document relating to the Valuation or Services.
Definitions
- The following definitions apply to these Terms & Conditions and the provision of our Services:-
‘Associated Entity’ has the meaning given to it in the Corporations Act 2001 (Cth);
‘Client’ means the party that receives the benefit of the Services;
‘Client IP’ means Your pre-existing or independently developed intellectual property rights.
‘Date Of Valuation’ means, in relation to any Services , the date of preparation of our report or the specific date as at which our opinions are stated to apply.
‘Director’ means a Director noted on the Australian Securities and Investment Companies (ASIC’s) records for Preston Rowe Paterson.
‘Fee’ means the amount agreed to be paid for the Services by You as set out in the Quotation.
‘Franchise Entity’ means any entity that has signed a franchise agreement with Preston Rowe Paterson Australasia Pty Ltd including, but not limited to, the list of entities in Schedule 1.
‘Limited Liability Scheme’ means a scheme pursuant to the Professional Standards Legislation in the State of Victoria
‘Parties’ means You and/or Us as the context dictates.
‘PRP IP’ means all documentation, reports, certificates, diagrams, data procedures, plans, methodologies, libraries and techniques and other materials provided by Preston Rowe Paterson to You under these Terms & Conditions, or used by Preston Rowe Paterson in providing the Services, but excludes any Client IP.
‘Quotation’ means the written quote provided by Us in relation to the Services.
‘Related Bodies Corporate’ has the meaning given to it in the Corporations Act 2001 (Cth);
‘Services’ means the Valuation, Valuation Services, asset management, property management, facilities management or consultancy services or advice provided by Us pursuant to these Terms & Conditions and the Quotation.
“Solicitor Loan” means any loan of money on mortgage security arranged, controlled, managed, broked or otherwise induced by a solicitor or firm or partnership of solicitors.
“Terms & Conditions” means these Preston Rowe Paterson – Terms & Conditions.
“Valuation” shall include a valuation, 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”, shall include any oral or written advice, opinion, recommendation or statement communicated to the Client by Us consequent upon or incidental to the request for a Valuation;
“Valuer” means any Franchise Entity that performs a Valuation or Valuation Services for the Client, including that entity’s directors, agents, employees, consultants, sub-consultants and / or related legal entities.
‘We’, ‘Us’, ‘Our (s)’ means Preston Rowe Paterson and any of associated entities, our employees, contractors, servants and agents;
‘You’, ‘Your’ means the Client and also refers to any person that is involved in engaging Us to perform the Services as noted on the Quotation.
Quotation and Scope / Purpose of Services
6. Prior to commencing work, We will provide you with a Quotation that sets out:
- who our Services are for
- the purpose for which the Services are being provided; and
- the fee You are required to pay.
Limitation of Liability – Valuation
7. If We are providing you with a Valuation, the following clauses apply:
- You agree that any liability we have to You (whether arising under contract, common law or statute) in relation to any loss you suffer that is in any way related to or connected with the Valuation, is limited to the fee You have paid for the Valuation.
- We agree that any liability You have to Us (whether arising under contract, common law or statute) in relation to any loss We suffer that is in any way related to or connected with the Valuation, is limited to the fee You have paid for the Valuation.
- You agree that We only owe a duty of care to the Client named in the Valuation report and to no other person.
- You agree and warrant that You will not (and will not permit any other person) to use the Valuation for any purpose, other than the purpose stated in the Valuation and that You will not pursue any claim against Us for any loss You suffer because You have used Our advice for any other purpose;
- You will keep this report confidential, unless otherwise agreed by Us in writing;
- All instructions and subsequent information supplied by You contain a full and frank disclosure of all information that is relevant to Our provision of the Services. You accept all risk and any loss that might occur should you withhold any relevant information from Us;
- All third-party expert or specialist reports provided to Us by You for the purpose of Us providing the Services are provided with the authority of the authors of those reports.
- You will fully indemnify Us for and in respect of all loss, liability, costs and expenses of whatsoever kind (whether arising under contract, common law or statute) which We may suffer or incur arising from or in any way connected with any breach by You of these Terms & Conditions, including any breach of your obligations under clause 20 (Artificial Intelligence). This indemnity shall include but not be limited to loss, liability, costs and expenses which We may suffer or incur in respect of any claims (including third-party claims), actions, proceedings, disputes or allegations made against Us or to which We are a party.
8. You agree that this limitation of liability extends to all Our directors, employees and contractors. Every right, immunity, exemption and limitation in these Terms & Conditions available or applicable to Us shall also be available and shall extend to every employee, contractor, servant or agent of Ours.
9. No employee, contractor, servant or agent of Ours or any other person has any power to waive or vary any of these Terms & Conditions unless such waiver or variation is in writing and signed by one of Our Directors.
Limitation of Liability – All Services
10. The Services are provided by Us solely for the use of the Client. You agree that neither the whole nor any part of Our Services or the substance of any of Our 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. Such consent will be provided at Our absolute discretion and on such conditions as We may require including that a copy of these Terms & Conditions must be provided to such third party. This clause shall not apply to persons noted as Clients 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 & Conditions.
11. If You release any part of our advice without Our written consent, You agree:
- to inform the other person of the terms of Our consent; and
- to indemnify Us for any loss resulting from your failure to comply with clause 11(a) We have no responsibility to any other person even if that person suffers damage as a result of any other person receiving the Services.
12. You agree that We do not and will not assume any responsibility to any person other than the Client for any reason whatsoever including, without limiting the generality of the foregoing, for breach of contract, negligence (including negligent mis-statement) or willful act or default of itself or others by reason of or arising out of the provision of the Services and notwithstanding that any damages have been suffered or incurred by that person as a result of the provision of this Valuation or those Valuation Services to the Client or the use of either of them (or any part of either of them) by the Client for any purpose whatsoever.
13. You agree that any liability We have to You (whether arising under contract, common law or statute) in relation to any loss you suffer that is in any way related to or connected with the Services, is limited to a multiple of 1 x the fee You have paid for the Services as specified in the Quotation. We also agree that any liability You have to Us (whether arising under contract, common law or statute) in relation to any loss We suffer that is in any way related to or connected with the Services, is limited to a multiple of 1 x the fee You have paid for the Services as specified in the Quotation.
Amendments to Our Services
14. You agree that We reserve the right to reconsider or amend the Fee set out in Our Quotation to You, if we identify information or facts that were not provided to Us at the time of quoting that reveal that the task is much greater than we initially anticipated from the information you provided.
15. 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.
Intellectual Property
16. All PRP IP remains the property of Preston Rowe Paterson.
17. Nothing in this agreement assigns any intellectual property rights in PRP IP to You.
18. We only grant you a non-exclusive licence to use the PRP IP solely to carry out the purpose for which the advice was provided.
19. You authorise and license Us to incorporate the Client IP within Our report(s).
Artificial Intelligence
20. You warrant that under no circumstances shall any Valuation, Valuation-related data, calculation, working file, draft, or other materials (whether raw, processed, or derived) provided to You in connection with these Terms and Conditions (collectively, “Valuation Materials”) be:
- inputted into, submitted to, processed by, or exposed to any artificial intelligence system, tool, model, software or service (including but not limited to large language models, machine learning systems, predictive analytics tools, or automated decision-making platforms), whether proprietary, open source, hosted, or publicly available (“AI Systems”);
- used to train, fine-tune, test, or otherwise develop any AI System;
- stored in any location, platform or service that permits or enables AI System access, ingestion, or processing (including cloud platforms with embedded AI features); or
- disclosed in any manner (including through queries, summaries, or uploads) to third-party AI Systems, or to persons using AI Systems, regardless of whether such disclosure is direct or incidental.
Valuation Reports for Mortgage Purposes
21. Our Valuation reports for mortgage purposes will clearly state who can rely on the report and the purpose for which our report is prepared. No person other than the Client is entitled to rely on it. We specifically disclaim any responsibility to any borrower when we have addressed a Valuation report for mortgage purposes to a lender. We do not accept any duty of care or responsibility to any guarantor or any other person that is involved in the mortgage transaction.
22. A valuation for mortgage purposes is only to be used when the Client is taking security as first registered mortgage over the subject property, unless the valuation report expressly states otherwise. We will not accept any liability or responsibility to second or subsequent mortgagees whom have not instructed Us. For the avoidance of doubt, you expressly agree that You will not rely on the report in the following circumstances or for the following purposes:
- as security other than by first registered mortgage;
- as part of a group of securities (except where the property forms part of a trust);
- as security for more than one loan;
- in the case of Solicitor Loans, where the loan to value ratio exceeds 70% of the valuation sum; or
- without sighting the original report document that has been signed by the individual valuer who prepared the report and countersigned by one of Our Directors.
23. You acknowledge that We reserve the right, at Our absolute discretion, to determine whether to assign Our valuation to any other person. Without limiting the extent of Our discretion, We are likely to decline a request for assignment where:
- the proposed assignee is not a major recognised lending institution (such as a bank or other lender regulated by the Banking Act 1959;
- the assignment is sought in excess of 3 months after the date of Valuation;
- we consider that there has been a change in conditions which may have a material impact on the value of the property assessed in the Valuation;
- the proposed assignee seeks to use the Valuation for an inappropriate purpose; or
- Our Fee has not been paid in full.
24. 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 & Conditions, the original Quotation and any other document, including instructions provided by You, relevant to the scope of Our Valuation or Valuation Services.
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.
Qualifications, Assumptions and Conditions Precedent within our Reports
26. 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 & Conditions, relative to the circumstances of the particular property or properties (real or personal property) under consideration.
27. 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.
28. 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 within the time required to complete the valuation. These will be set out in detail in the Valuation, Valuation Service report or Services report that We provide to You.
29. These qualifications, assumptions and conditions precedent include:
- Our Valuation and or Valuation Services are current at the Date of Valuation only. 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;
- If the lender is not a lender regulated by the Banking Act of 1959, Our valuation is prepared on the assumption that the lender as referred to in the valuation report (and no other), may rely on the valuation for mortgage finance purposes and the lender has complied with its own lending guidelines as well as prudent finance industry lending practices, and has considered all prudent aspects of credit risks for any potential borrower, including the borrower’s ability to service and repay any mortgage loan; and
- Any lender is providing mortgage financing at a conservative and prudent loan to value ratio.
30. We may also make other qualifications, assumptions and conditions precedent relating to:-
- Land contamination and environmental risk;
- Town Planning Information;
- Town Planning and Development Controls and Consents;
- Title including Notifications on Title such as Easements, Caveats, Restrictions and other dealings;
- Building Areas;
- Building Structural Integrity;
- Building Compliance with the Building Code of Australia;
- Pest Infestation;
- Leases, Licences and Tenancies;
- Strata Title Certificates;
- Plant and Equipment within Buildings;
- The veracity of and sources of Sales and Letting Information and Transaction Data;
- The nature of forecasting, future value assessment and discounted cash flow analysis;
- The basis of Value where access to the property is restricted; and
- Whether or not the property has been completed where a development.
31. 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.
Payment Terms
32. You must pay our Fees within 14 days of the date of a correctly rendered invoice, unless otherwise dealt with in the Quotation. Fees that remain unpaid for a period of 30 days or more will attract an administration charge of 2% of the total of the invoice calculated per month or part thereof.
Surviving Terms
33. You agree that every right, immunity, exemption and limitation or liability in these Terms & Conditions shall continue to have its full force and effect in all circumstances notwithstanding any breach of contract or the Terms & Conditions hereof by Us or any person entitled to the benefit of these Terms & Conditions;
Severability
34. You agree that if any provision or any part of a provision in these Terms & Conditions is unenforceable for any reason whatsoever, such unenforceability shall not affect any other part of such provision or any other provision of these Terms & Conditions.
Complaints
35. You are advised that Preston Rowe Paterson has a Complaints Handling Procedure (CHP) which is designated in our Quality Management System.
36. You agree that, should you have any concerns regarding the content of these Terms & Conditions, it is your responsibility to inform us of these concerns in accordance with our CHP.
SCHEDULE 1: LIST OF PRP FRANCHISE ENTITIES
Preston Rowe Paterson Adelaide Pty Ltd
Preston Rowe Paterson (ACT) Pty Ltd
Preston Rowe Paterson Albury Wodonga Pty Ltd
Preston Rowe Paterson Ballarat Pty Ltd
Preston Rowe Paterson Bathurst Pty Ltd
Preston Rowe Paterson Bendigo Pty Ltd
Preston Rowe Paterson Brisbane Pty Ltd
Preston Rowe Paterson Broome & Kimberley Pty Ltd
Preston Rowe Paterson Byron Bay & Northern Rivers
Preston Rowe Paterson Dubbo & Central West Pty Ltd
Preston Rowe Paterson Geelong Pty Ltd
Preston Rowe Paterson Geraldton & Midwest Pty Ltd
Preston Rowe Paterson Gippsland Pty Ltd
Preston Rowe Paterson Griffith Pty Ltd
Preston Rowe Paterson Horsham Pty Ltd
Preston Rowe Paterson Mackay Pty Ltd
Preston Rowe Paterson Melbourne Pty Ltd
Preston Rowe Paterson Mildura Pty Ltd
Preston Rowe Paterson Moreton & Sunshine Coast Pty Ltd
Preston Rowe Paterson Mount Gambier Pty Ltd
Preston Rowe Paterson Newcastle & Central Coast Pty Ltd
Preston Rowe Paterson Northern Territory Pty Ltd
Preston Rowe Paterson Perth Pty Ltd
Preston Rowe Paterson Regional North Queensland Pty Ltd
Preston Rowe Paterson Sale & East Gippsland Pty Ltd
Preston Rowe Paterson Shepparton Pty Ltd
Preston Rowe Paterson Southport Pty Ltd
Preston Rowe Paterson Swan Hill Pty Ltd
Preston Rowe Paterson Sydney Pty Ltd
Preston Rowe Paterson Tamworth Pty Ltd
Preston Rowe Paterson Tasmania Pty Ltd
Preston Rowe Paterson Wagga Wagga Pty Ltd
Preston Rowe Paterson Warrnambool Pty Ltd
The Client acknowledges that Preston Rowe Paterson may enter into further franchise agreements. On signing of these franchise agreements, the counterparty to the franchise agreement will immediately be deemed to be a Franchise Entity for the purposes of this PVA, and any Valuations or Services provided by such entity will be governed by these Terms & Conditions. Preston Rowe Paterson Australia Services Proprietary Limited will use reasonable endeavours to notify the Client in writing of the additional Franchise Entity that is providing a Valuation of Services under this PVA.