Contract Terms & Conditions
TERMS AND CONDITIONS:
1 Interpretation: "You” or "Your” or "Customer” means the person or company that engages Us to undertake the Services; "We” or "Our” or "Us” means NZ Moisture Testing Limited (CN 2490739);
"Services” means [Thermal imaging or moisture meter readings], "including” and similar words do not imply limitation.
2 Acknowledgement: The Customer acknowledges that:
(a) Our reports do not determine if a home is or is not a ‘leaky home'. Our reports are not a ‘weather-tightness' report, as invasive testing would need to be carried through the exterior cladding into the building's framework to get conclusive results.
(b) A non-invasive moisture reading is not a conclusive indication that moisture is present or not present.
(c) Both invasive and non-invasive testing does not detect dry rot.
(d) The outcome of the inspection can be influenced by a variety of factors including hidden metals or chemical preservatives, weather conditions and the depth at which any moisture may be present at.
(e) Because any thermal imaging or non-invasive moisture reading is only a ‘snapshot' at a particular point in time, all inspections and reports are valid for the day of inspection only, due to various conditions outside of our control after the day of inspection.
(f) A thermal imaging camera does not "see through” walls and it does not detect moisture. The infrared camera detects infrared radiation only.
(g) We do not give advice about:
(i) Any methods, materials or costs for the repair of any Investigative Issue;
(ii) The suitability of a building for any specialised use;
(iii) The market value or marketability of a building; and
(iv) The advisability or inadvisability of the sale or purchase of a building.
(h) There is no guarantee or warranty given or representation made by that the Services will detect any and all moisture or that the readings and/or images obtained are an accurate reflection of the amount of moisture present.
(i) Best practice would be for the Customer to undertake invasive inspections of the subject building.
(a) All payments are to be made by the Customer to Us (including for disbursement costs):
(i) within ten (10) days following the date of invoice unless otherwise agreed by Us;
(ii) in cleared funds and in full without any deduction or withholding whatsoever of any kind (whether by set-off or counterclaim or otherwise); and
(iii) by such method as directed by Us.
(b) Goods and Services Tax and any and all other taxes and duties that may be applicable in relation to the Services shall be paid by You to Us with our fees and at the time of supply.
(c) If the Customer defaults in payment of any amount due to Us, without prejudice to any of Our other rights and remedies, the Customer must pay to Us interest on the unpaid amount at the rate of 1.5% per month (or part thereof) computed on a daily basis from the date on which such amount should have been paid until the date of actual payment (including after any judgment), compounding monthly.
(d) The Customer shall pay Us all costs, expenses and charges that are incurred by Us in enforcing or attempting to enforce any of our rights against the Customer including all debt collection and legal expenses (on a solicitor and client basis).
4 Services and our Report: Our Report:
(a) is prepared following an above ground infra-red/moisture inspection of only the interior areas of the building that we have been instructed to inspect ("Subject Area”). We will not inspect and the
"Subject Area” will not include:
(i) The external cladding, external building envelope, exterior structures or roofing of any building;
(ii) Any interior area where we do not have direct access or a clear line of sight including any areas covered by anything (including furniture and cupboards); and any area that can not be reached with a hand held moisture meter without the use of any equipment; and
(iii) Areas that were not accessible at the time of our investigation;
(b) Identifies potential thermal temperature and/or moisture anomalies within the Subject Area at the time of our inspection only, could detect the possibility of leaks, or possible moisture and heat loss ("Investigative Issues”) and provides an opinion on the presence or absence of the Investigative Issues in the Subject Area; and
(c) Is a preliminary non-invasive investigation for potential Investigative Issues. If any potential Investigative Issue is detected, we will not do anything further until such further action is requested in writing to Us by the Customer, which additional services will be for by the Customer.
5 Limits of Report: Any report or document we prepare:
(a) is only for the benefit of the Customer. Those documents cannot be relied upon by any other person or party;
(b) is not a structural survey. We do not uncover, dismantle or undertake any internal inspection of any building;
(c) is not designed or intended to identify potential problems or issues within the Subject Area other than the Investigative Issues and, without limitation, will not:
(i) Identify the presence or absence of dry rot or any hazardous substance including mould, toxins, cancer causing materials, noise or other contaminants;
(ii) Identify the presence or absence of any pests including wood damaging organisms, rodents or insects;
(iii) Determine the effectiveness of any equipment, utility, component or system installed to control leaks, moisture, heat loss, dry rot or hazardous substances;
(iv) Determine the durability or future condition of any equipment, utility, component or system; and
(v) Determine compliance or non-compliance with any statutory or regulatory requirement, code, bylaw, ordinance or other restriction.
6 What we will not do: The Customer acknowledges and agrees that We will not:
(a) Enter any area or perform any procedure that will or may damage any part of a building or be dangerous to any of our employees, contractors or any other person;
(b) Disturb or move any insulation, panels, furniture, personal items, equipment, vegetation or other items or materials that obstruct access or visibility to the thermal inspection; and
(c) Operate any equipment, utility, component or system that is shut down, inoperable or that does not respond to normal operating controls.
7 Exclusion of Liability:
(a) Neither Us nor our employees or contractors shall be liable to the Customer, the Customer's agents or employees or any other person for any direct, indirect, incidental or consequential damage or loss of any nature howsoever caused (whether based on tort (including negligence), contract or otherwise) including, but not limited to, loss of profits, loss of opportunity, damage to equipment or property (including any costs or loss relating to any invasive inspection) or any other claim whatsoever arising directly or indirectly or in any way attributable to the performance or non-performance of the Services.
(b) The Consumer Guarantees Act 1993 ("Act”) will not apply where the Customer is engaging Us to provide the Services for business purposes. If the Customer is a consumer under the Act, to the extent that the customer's rights under the Act have not been excluded above, nothing in these terms and conditions will affect the rights of the customer under the Act.
(c) The customer relies upon its own knowledge, skill and judgment in relation to the particular use or suitability of our report for the customer's purpose; and
(d) All warranties, descriptions representations or conditions implied by any Act, Regulation or otherwise are expressly excluded to the fullest extent permitted by law.
(e) If, for any reason, we are found liable to the Customer or any other person in connection with the Services and we are unable to rely on the exclusions of liability set out in these terms and conditions, our liability shall in all cases be:
(i) Only be to the Customer and not to any third party;
(ii) For direct losses of the Customer only and not any third party and not for any loss of profits or any indirect or consequential losses of any nature;
(iii) Limited to only that portion of the damage or loss directly caused or contributed to by Us or our employees or agents;
(iv) Limited to the price paid or payable by the Customer for the Services.
(f) No claim for damage or loss arising directly or indirectly in connection with the Services shall be brought more than two (2) months after completion of the Services. At that time the Customer shall be deemed to have waived and abandoned any and all claims against Us and Our agents or employees and shall not be entitled not be entitled to bring any claim against Us and Our agents or employees.
(g) Our directors, employees and agents are not contracting with, or assuming any duties of care to, the Customer and have no liability to the Customer whatsoever and howsoever arising.
(h) Clauses (a) to (g) of this clause 7 are promises that confer and are intended to confer a benefit on Our employees and agents and accordingly the provisions of the Contracts (Privity) Act 1982 apply to each of them.
8 Guarantee: Where the Customer is a company, a trust, or an incorporated or unincorporated entity then the person who engages us to provide the Services on behalf of that entity personally guarantees to Us, as a principal obligor and not as a surety, the due and punctual payment to Us of all moneys unpaid by the Customer to Us.