Explanation
- The following terms and conditions are the standard terms and conditions that apply to all Valuations or the Valuation Services or consultancy services and Services provided by Preston Rowe Paterson and our associated entities.
- These terms and conditions form part of the appointment of Preston Rowe Paterson and our associated entities by the Client to provide the Services.
- Preston Rowe Paterson and its valuers are members 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 and our associated entities subject to these Terms and Conditions;
Definitions
- The following definitions apply to these Terms and Conditions and the provision of our Valuations, Valuation Services and Services:-
“Client” shall mean the party engaging Us to perform the Valuation, Services or Valuation Services;
‘Confidential information’ means information that:
- Is by its nature confidential;
- Is designated by Us as confidential;
- You know or ought to know is confidential; and
- Includes, without limitation:
- 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 which We have provided to You.
‘Date Of Valuation’ means, in relation to any Valuation, Valuation Services, Services or consultancy services or advice, the date of preparation of our report or the specific date as at which our opinions are stated to apply (the Relevant Date).
‘Director’ means a Director noted on the Australian Securities and Investment Companies (ASIC’s) records for Training Company.
‘Disbursements’ means 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 ascertain 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.
‘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.
‘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.
‘Services’ means the Valuation, Valuation Services, asset management, property management, facilities management or consultancy services or advice provided by Us pursuant to these Terms and Conditions and the Quotation.
“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 the individual valuer that has undertaken the valuation or valuation services;
‘We’, ‘Us’, ‘Our (s)’ means Preston Rowe Paterson and any of associated entities, our employees, contractors, servants and agents;
‘You’, ‘Your’ means the Client engaging Us to perform the Valuation, Services or Valuation Services;
Scope of Work/Quotation
- Prior to commencing work, We will provide you with a Scope of Work/Quotation that sets out who the report is for; the purpose for which the report is being prepared and the fee to be charged. You agree that:
- you will not use any advice we provide for any purpose other than as stated in the Quotation;
- 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; and
- you will indemnify Us in relation to any loss suffered by a third party that relies on Our advice without first receiving our written consent to do so.
Limitation of Liability
- You agree to release Us and hold Us harmless from all liability to You for or in respect of any loss, damage, costs and expenses of whatsoever kind which We have or may have or, but for the operation of this Clause, might have had arising from or in any way connected with the Valuation, Valuation Services or Services or the Use of the Valuation Services or any part of them. This release shall be complete and unconditional except in the case of gross negligence or willful misconduct by Us in the provision of the Services.
- You agree that You will fully indemnify Us for and in respect of all loss, liability, costs and expenses of whatsoever kind which We may suffer or incur arising from or in any way connected with any breach by You of these Terms and Conditions. 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, actions, proceedings, disputes or allegations made against Us or to which We are a party.
- You agree to this Limitation of Liability and these Terms and Conditions whether such liability arises under contract, at common law or under Statute.
- You agree that this limitation of liability extends to all Our directors, employees and contractors. Every right, immunity, exemption and limitation in these Terms and Conditions available or applicable to Us shall also be available and shall extend to every employee, contractor, servant or agent of Ours;
- No employee, contractor, servant or agent of Ours or any other person has any power to waive or vary any of these Terms and Conditions unless such waiver or variation is in writing and signed by one of Our Directors.
Your Obligations
- You agree that:
- You will not use any advice We provide for any purpose other than as stated in the Quotation;
- 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; and
- You will indemnify Us in relation to any loss suffered by a third party that relies on our advice without first receiving Our written consent to do so.
- 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, Valuation Services or Services. You also accept all risk and any loss that might occur should you withhold any relevant information from Us.
- You warrant that all third-party expert or specialist reports provided to Us by You for the purpose of Us providing the Valuation, Valuation Services or Services are provided with the authority of the authors of those reports.
- You authorise and license Us to incorporate Your intellectual property within Our report(s).
- The Valuation and all Valuation Services are provided by Us solely for the use of the Client. You will not release any part of Our valuation or consultancy report 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.
- If You release any part of the valuation or consultancy advice 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, Valuation Services, Services or consultancy advice.
- You are 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 Valuation, Valuation Services or 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;
- 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.
- You agree that We reserve the right to reconsider or amend the Valuation, Valuation Services, Services or consultancy advice, 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 that reveal that the task is much greater than we initially anticipated from the information you provided. 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. You agree that neither the whole nor any part of Our Valuation or the substance of any of Our Valuation Services or 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 so to do;
- 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;
- 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;
- You will only use the valuation or valuation services for the specific purpose stated by us. You agree that you will not use the valuation or valuation services for any other purpose, unless you have our expert’s written consent to do so.
- You are advised that Preston Rowe Paterson has a Complaints Handling Procedure (CHP) which is designated in our Quality Management System.
Intellectual Property
- 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.
Property or Valuation Circumstance Specific Qualifications, Assumptions and Conditions Precedent within our reports
- 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.
- 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.
- 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 or Services report that We provide to You.
- These qualifications, assumptions and conditions precedent typically will relate 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.
- 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.
Length of Time Our Valuation or Valuation Services can be relied upon
- Our Valuation and or Valuation Services are current at the Date of Valuation only. The value assessed in Our Valuation or Valuation Services Report 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.
Assignment of Valuation or Valuation Services
33. 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:
- 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;
- the proposed assignee seeks to use the valuation for an inappropriate purpose; or
- Our Fee has not been paid in full.
- Where We decline to provide an assignment, We may be prepared to provide an updated valuation on terms to be agreed at that time.
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.