Valuation Terms and Conditions- Valocity System
1. Relationship and Key Terms
1.1 These terms and conditions (the Terms) apply when you wish to order through your Provider a Full Market Valuation or Desktop Valuation (deskVal) using the Valocity System (the system). The system is a service to your Provider, which allows ordering of a Full Market Valuation or a deskVal through an online automated system from certain valuation firms who are registered to provide valuations through the system. The system automatically allocates a request for a valuation to a valuer who is registered to use the system. The relevant valuation firms, as suppliers, deliver the valuation services and pay a service, access and processing fee to Valocity (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 Full Market Valuation or deskVal, you agree to these standard terms and conditions (the Terms) for the benefit of Valocity and the Valuation Firm undertaking the Full Market Valuation. You do so in consideration of the Valuation Firm providing through the System a Full Market Valuation or deskVal to you and or your Provider for your Provider´s use. These Terms will govern the valuation you have requested, unless specifically agreed otherwise in writing by the applicable Valuation Firm and Valocity.
1.3 In these Terms, unless the context indicates otherwise:
Bank means the Bank or lending institution identified at the time of ordering who also has the benefit of the Report.
Business Day ‘ means any day other than a Saturday, Sunday or a public statutory holiday in Auckland, New Zealand.
deskVal means a [residential] valuation completed by a valuer at their desk i.e. site inspections are not undertaken.
Full Market Valuation ‘ means a [residential or lifestyle] property valuation prepared by a valuer for your benefit and that of the Bank using the system.
Property ‘ means the property, premises, site, or location relating to the Full Market Valuation to be undertaken pursuant to these Terms.
Provider ‘ means the Bank or mortgage broker (as applicable).
Report ‘ means the report or Urgent Report (as the case may be) prepared by the Valuation Firm for the benefit of you (and the Bank) with respect to any Full Market Valuation.
Urgent Report ‘ means a Full Market Valuation report that is requested in a timeframe less than four (4) Business Days for a Property in a metropolitan area, or less than seven (7) Business Days for a Property in any other area;
Valocity Limited‘ means Valocity (company number 4984140).
Valocity System ‘ means the system (including all related software) licensed and supplied by Valocity which uses web based technology to facilitate the provision of valuation services by the Valuation Firm.
Valuation Firm ‘ means the valuation firm and the valuer undertaking the Full Market Valuation.
1.4 These Terms may be modified by Valocity at any time by uploading new terms onto the Valocity website.
2. Fees and Timeframe
2.1 The fee for the Report or deskVal, and timeframe for completion, is as detailed to you at the time you requested the Valuation. All turnaround times given orally or in writing in respect of the performance of the Full Market Valuation are estimates only. Neither Valocity nor the Valuation Firm shall be responsible for any delays in the delivery of a Report.
2.2 A deskVal will be completed within 24 hours on confirmation of payment for the order. This may be extended to 48 hours if a drive by of the property is required in order to obtain a photograph.
2.3 If you request an Urgent Report:
(a) The Valuation Firm will endeavour to deliver the Urgent Report within two (2) Business Days for properties with a Service Level Time of 4 days or within four (4) Business Days for properties with a Service Level Time of 7 days, on confirmation of payment of the order (or such other timeframe as you agree with the Valuation Firm);
(b) 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 two (2) Business Days (or the timeframe agreed with the Valuation Firm), 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.
2.4 A pre-authorisation will be made against your credit or debit card for the standard fee (and any urgency fee, if applicable) at the time the valuation is ordered. The Valuation Firm and Valocity retain the right to change the fee if the valuation is more complex than initially described (including, without limitation, on account of one or more of the circumstances listed in clause 2.5 below). Should this be the case, the adjusted fee will be re-quoted to you for your prior approval. The final fee that is charged to your credit card may differ from that amount pre-authorised.
2.5 You may be charged additional fee(s) (over and above the standard fee and urgency fee) for a Full Market Valuation if the valuation is of a complex nature including, without limitation, in the following circumstances:
(a) Where there is a suspicion of a leaky building or a site with contamination issues;
(b) Where there are multiple dwellings or units on the same site;
(c) Where you have requested a construction valuation;
(d) Where you have requested an ‘as is’ and ‘as if complete’ valuation;
(e) Where the Property is a subdivision of a residential property;
(f) Where the Property has the potential to subdivide;
(g) Where the Property is a large lifestyle property;
(h) Where travel time taken to inspect and or inspect comparable sales requires significantly more time than is standard for properties in that geographical region;
(i) Where the Property does not have a freehold tenure — such as ground lease, cross-lease, leasehold, unit title or Maori freehold; or
(j) Where there are other circumstances that will result in additional complexity for the Valuation.
Where the Valuation Firm needs to charge an additional fee, it will stop providing valuation 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 Full Market Valuation request will be cancelled and you may have to pay a cancellation fee in accordance with clause 8.
2.6 The Valuation Firm will ensure that you are kept up to date regarding any issues with provision of the Report outside the initial timeframes.
2.7 The Report will be delivered to your Provider (and the Bank, where appropriate) and be held on the system. Valocity will email you a copy of the Report.
3. Your obligations
3.1 You must:
(a) Pay all fees, without set off or deduction of any kind, at the time of ordering a Report or deskVal and, in any event, prior to the Report or deskVal being made available to you or your Provider;
(b) Provide Valocity and the Valuation Firm with full and frank disclosure of all information and other facts that may be relevant to a valuation of the Property; and
(c) Allow the Valuation Firm access to the Property in the case of a Full market valuation, and provide all such other reasonable assistance as the Valuation Firm may require in performing the valuation services.
4. Services and Assumptions
4.1 The valuation services will be performed by the Valuation Firm solely for the internal use by the parties to whom the Report or deskVal is addressed for the purpose of assisting a lending decision by the Bank.
4.2 The Report and deskVal 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 or deskVal. The Report or deskVal must not be assigned without the prior written consent of the Valuation Firm (which consent the Valuation Firm may withhold in its absolute discretion and to which (if given) it may attach such conditions as it thinks fit).
4.3 The Report or deskVal is prepared on the basis that you have provided the Valuation Firm with a full and frank disclosure of all information and other material facts which may affect the preparation of the Report or deskVal. No responsibility or liability for the accuracy of the Report is accepted whatsoever unless such full and frank disclosure has been made to the Valuation Firm.
4.4 Unless otherwise agreed, for Full market valuations, the Valuation Firm will undertake all reasonable endeavours to undertake an internal and external valuation inspection of the Property, which will comprise inspecting the interior of all major buildings where access is available. However, the Valuation Firm 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 Valocity nor the Valuation Firm purports to provide in respect of the Property:
(a) A site or structural survey; or
(b) Suitably qualified professional advice in respect of building or site contamination or the presence of ‘Leaky Building Syndrome’ or weather tightness issues; or
(c) Any boundary survey of the Property and unless otherwise stated the Valuation Firm will assume that all improvements lie within the title boundaries; or
(d) 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
(e) Any environmental or geotechnical survey; or
(f) Any view on the possible presence of archaeological sites or sites of historical or cultural significance.
4.6 Unless otherwise stated in the Report or deskVal, each Report or deskVal is prepared on the basis of the following assumptions:
(a) 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;
(b) That the Property has no adverse or beneficial information recorded on a property file kept by the Territorial Local Authority or Regional Authority;
(c) There are no detrimental registration(s) affecting the Property other than those appearing on the certificate(s) of title for the Property. The Valuation Firm will not normally undertake investigations into detrimental registration(s) affecting the Property unless specifically requested to do so;
(d) 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;
(e) That any information supplied to Valocity or the Valuation Firm by you or another party (including professional bodies such as REINZ, RPNZ or local authorities) is complete, reliable and accurate;
(f) 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;
(g) There are no side agreements or arrangements in place that would have an adverse effect on the valuation of the Property;
(h) That if a Land Information Memorandum (LIM) or Project Information Memorandum (PIM) had been obtained for the Property the LIM PIM would not have disclosed any information which would have affected the value of the Property; and
(i) Hot and cold water systems, electrical systems and other devices, fittings and conveniences, are in proper working order and functioning for the purposes for which they were designed.
If any one or more of these assumptions is not correct then neither Valocity nor the Valuation Firm accepts any responsibility for any such incorrect assumptions.
4.7 The Report and deskVal and all opinions of value expressed by the Valuation Firm are subject to and must always be read in conjunction with any specific disclosures or disclaimers related to the Property and identified in the Report or deskVal.
4.8 The Report or deskVal does not make any allowances for any liability which may arise for payment of income tax or any other property related tax. The Full Market Valuation and deskVal will be undertaken on an inclusive of GST (if any) basis.
4.9 The final written Report supplied to you will supersede all previous forecasts, information and opinions relating to the valuation services and the Full Market Valuation.
5.1 You expressly acknowledge that to the maximum extent permitted by law each of Valocity and the Provider is not responsible for or in any way liable to you in respect of or in connection with supply of the valuation services and the resulting Report; such services and the Report are solely being supplied by the Valuation Firm. Valocity’s involvement is limited to providing the system for ordering and delivery of the Report.
5.2 The total liability of Valocity and the Valuation Firm to you (with respect to a Full Market Valuation) shall be limited to the provision of a replacement Full Market Valuation and associated Report, or a refund of the fees paid for such a Report.
5.3 You agree to indemnify (severally) the Valuation Firm, Valocity 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 valuation services and the preparation of the Report, except to the extent that such a claim is caused or contributed directly by the negligence of the Valuation Firm, Valocity or the Provider (as applicable).
5.4 You agree that neither Valocity nor the Valuation Firm will be liable to you in any way related to these Terms or any Full Market Valuation, whether in tort, equity, under statute or otherwise for:
(a) Loss of profits or loss of revenue (in each case, whether direct or indirect);
(b) Any indirect, special or consequential loss or damage whatsoever (except in instances of fraud or wilful concealment).
5.5 In preparing the Report, the Valuation Firm (and its valuers) 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 Valocity or the Valuation Firm for any incorrect statement, information or forecast within.
5.6 Information supplied in a Report is drawn from third party sources (including Land Information New Zealand and various local authorities) which are independent of and outside the control of Valocity and the Valuation Firm and neither Valocity nor the Valuation Firm takes any responsibility for, or guarantees in any way, the accuracy (or completeness) of any such information.
5.7 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.
5.8 You acknowledge and agree that a DeskVal does not involve a physical inspection of the property, but is rather a desktop analysis of comparable sales. The deskVal does not comply with the NZIV and PINZ practice standards required for valuations. Accordingly, the bank acknowledges and agrees that deskVal’s are not intended or designed to replace Full Market Valuation Reports. Accordingly, figures given in deskVal’s are guides only and are unlikely to be as accurate as Full Market Valuation Reports. In light of this, neither Valocity, the Valuation Firm or the Valuers warrant the deskVal’s for lending purposes and any reliance for lending purposes placed on the deskVal’s are at the Bank’s risk
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 Full Market Valuation or 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 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:
(a) The mediation will be conducted under the LEADR New Zealand Incorporated (‘LEADR’) standard mediation agreement.
(b) 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.
(c) The parties shall bear the mediator’s fees equally.
(d) If Valocity is party to the mediation, the mediation shall take place in Auckland. If Valocity is not party to the mediation the mediation shall take place in the city town in which the Valuation Firm 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.
8.1 You may terminate the valuation services by written notice to Valocity at any time prior to the Report being issued. As soon as this notice is received, the Valuation Firm will be instructed to stop performing the valuation services. Termination of the valuation 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:
(a) Where the valuation services have been terminated prior to the Valuation Firm completing a physical inspection of the Property, no fee is payable by you;
(b) Where the valuation services have been terminated and the Valuation Firm 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 4 days and 75% of the agreed fee is payable by you for properties with a Service Level Time of 7 days; and
(c) Where the valuation services have been terminated and the Valuation Firm 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 valuation services for properties with a Service Level Time of 4 days and within four (4) hours of termination of the valuation services for properties with a Service Level time of 7 days) the full agreed fee is payable by you.
8.3 Where you cancel valuation services under this clause 8 and have already paid for those services in full Valocity will refund to you the amount paid less the applicable cancellation fee under clause 8.2.
9. Intellectual Property
9.1 You acknowledge and agree that:
(a) Valocity shall own all intellectual property rights in all existing materials and data used and supplied by Valocity to the Valuation Firm; and
(b) The Valuation Firm shall own all the intellectual property rights in all existing materials and data used and supplied by the Valuation Firm in providing the valuation 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 Valuation Firm 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 Valuation Firm and Valocity.
10. Force Majeure
10.1 Neither Valocity nor the Valuation Firm will be liable to you for any failure to comply with these Terms due to circumstances beyond their reasonable control.
11. Information and Privacy Act
11.1 You authorise each of Valocity and the Valuation Firm 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 Valocity or the Valuation Firm (as applicable).
11.2 Any personal information collected and held by Valocity or the Valuation Firm under, or in connection with, these Terms will be used for the purposes related to the provision of the System (in the case of Valocity) and for providing the valuation services (in the case of the Valuation Firm). Under the Privacy Act 1993, you have the right of access to and correction of personal information about you held by Valocity and the Valuation Firm.
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 Valuation Firm, the Provider and the Bank (if the Bank is not the Provider).
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.