General Terms and Conditions of Solutions
1. DEFINITIONS
The relevant definitions listed in this Agreement are listed at the end of this Agreement.
a. Acknowledgment: means a thing that a person is intimately aware of and has taken full consideration of and accepts that piece of information unconditionally.
b. Area: means the area and/or areas listed in clause 5 only.
c. Standards: means the prescribed standard (by local or international professional or regulatory body) in respect of the specific subject matter of Diagnosis as may be stated on the Engagement letter.
d. Client: means the named person in the Engagement letter.
e. Client’s acknowledgments: means the items listed in Clause 2 that the Client is intimately aware of and has taken full consideration of and accepts that piece of information unconditionally.
f. Defect: means a fault or deviation from the intended condition of the material, assembly or component.
g. Diagnosis: comprehensive assessment of a property’s (residential or commercial) condition and functionality to identify any issues, potential hazards, or needed repairs in relation to any (but not limited to) of the following:
- structural condition,
- roof condition,
- exterior and interior condition,
- plumbing, electrical and HVAC systems
- insulation and ventilation,
- health, safety, and environment concerns
- Documentation and reporting
- Assessment and Costing
h. Inspector: means the Spacecube Africa and where the context permits, its employees, successors-in title or agents but excludes its independent contractors.
i. Inspector’s fee: means the fees paid in respect of the Solution carried as stated in the letter of engagement.
j. Limitation: means any factor that partially or fully prevents full achievement of the purpose of the Diagnosis
k. Major defect: a defect that is significant enough to require rectification work to avoid unsafe conditions, loss of utility or cause further damage to overall quality of the Property.
l. Minor defect: any defect not classified as a major defect.
m. Parties: means reference to the Inspector and the Client jointly.
n. Property: means the property details listed in the letter of engagement.
o. Readily Accessible Areas: means areas which can be easily and safely inspected without injury to person or property as defined in the clearance table listed in clause 18. Or where these clearances are not available, areas within the consultant’s unobstructed line of sight and within arm’s length.
p. Report: means the final document and any attachments issued by the Inspector to the Client upon conclusion of Diagnosis.
q. Restrictions on a diagnosis: means paragraphs 6 to 19 of this Agreement.
r. Safe and Reasonable Access: those part of the Property which is available for Diagnosis but does not include the use of destructive or invasive Diagnosis methods or moving furniture or stored goods.
2. COMMENCEMENT
The agreement will commence on the date the engagement letter is signed by the Client and the agreed Solutions shall commence on the dates specified in the engagement letter or the date the engagement letter is signed by the Client where no other dates are specified in the engagement letter.
3. SOLUTIONS
The Inspector will perform the Solutions described in the engagement letter with reasonable skill and care. The Client confirm that the scope is sufficient for its purpose. The scope of Solutions (including deliverables) are provided solely for the Client for the purpose set out in the engagement letter and annexed checklist.
4. THE CLIENT’S ACKNOWLEDGMENTS
The client acknowledges that:
a. The Inspector reserves the right at any time to cancel the Diagnosis provided that the deposit, if any, will be fully refunded to the Client.
b. The Inspector will inspect the part(s) of the Property as outlined in the agreed checklist i.e. scope of Diagnosis between parties provided that any other another ancillary items may be required by the Client provided that same is within the contemplation of the checklist and shall also attract extra Diagnosis fee.
c. The Report is also limited by the restrictions on a diagnosis, as well as any rights held by an Inspector to ensure their own safety and/or any other limitations set out herein or in the letter of engagement.
d. The Report is a product of a subjective visual Diagnosis.
e. The Report is merely advisory and shall not be conclusively relied upon for valuation purposes or in making final decision to purchase the Property. The use of the Report is at Client’s risk. The Client shall not hold the Inspector liable for any losses suffered on relying on the Report
f. The Report is for the Client’s exclusive use in relation to the Property alone and shall not to be given or partially shared with a third party without the Inspector’s written consent.
g. The Scope of Diagnosis as set out in the checklist is only indicative as the Inspector is restricted by their ability to access any Area, which is subject to all safety considerations hence the Client further acknowledges that the Inspector cannot breach the same to carry out a diagnosis.
h. Some Restrictions on a diagnosis are foreseeable while others are only known at the time of Diagnosis.
i. The Inspector shall have the final right of opinion in respect of the time of the diagnosis well as the restrictions during a diagnosis.
j. The Inspector will carry out a visual and non-invasive Diagnosis limited by access and restrictions.
k. The Inspector shall not liable for any area not inspected due to restrictions on a Diagnosis.
l. The Client has read all the terms and has not relied on any representations made by the Inspector or anyone else before entering this Agreement.
m. The fact that defect is not visible during Diagnosis does not guarantee that there is no defect affecting the Property while the Inspector shall not report on latent defect in the property or in the title
n. The Client acknowledges acceptance of this Agreement and its terms through performance of this Agreement by way of payment of the agreed Inspector’s fee as indicated in the letter of engagement.
o. The Client will not hold the Inspector liable for any losses suffered on relying on the Diagnosis Report considering the acknowledgments above and all the terms of this Agreement.
5. SCOPE OF DIAGNOSIS AND REPORT
a. The report excludes an estimate of the cost for rectification of the Defects. The overall condition of the property shall presumably be compared to similarly constructed and reasonably maintained building of approximate age.
b. Areas for Diagnosis shall only cover what is deemed safe and accessible areas by the inspector.
c. Subject to safe and reasonable access to the property, the Diagnosis will report on the condition of each of the following Areas and as follows: i. The Interior of the Property;
ii. The Roof Space of the Property;
iii. The Exterior of the Property;
iv. The Sub-Floor Space of the Property;
v. The Roof Exterior (subject to height and weather restrictions) of the Property; and
vi. The Property within 30 metres of the Building relevant to the Diagnosis.
6. RESTRICTIONS ON A DIAGNOSIS
a. The Inspector is restricted by certain foreseeable and unforeseeable limitations during a diagnosis.
b. The Inspector’s foremost consideration is safety and reasonable access to an Area hence the Inspector is restricted from inspecting any Area where it is unsafe to do so or cannot be reasonably accessed.
c. The Inspector cannot move any furniture or any other chattel or thing in order to access an Area.
d. The Inspector cannot conduct a diagnosis that is invasive and therefore cannot inspect: the inside of walls; between floors; behind any kitchen joinery/cupboards/wardrobes/chattels; inside flat roofing; and/or inside any eaves. This is not an exhaustive list.
e. The Inspector cannot cut access holes or remove screws and bolts (or any other fastenings) to access covers.
f. The Inspector cannot inspect an Area if he believes that his access is obstructed.
g. The Inspector cannot carry out a diagnosis for:
i. Any non-structural element.
ii. Any part of the Property that cannot be seen or that requires testing. iii. Solutionability damp defects.
iv. Any common area property that maybe under a different Title unless explicitly stated in another signed Agreement;
v. Asbestos;
vi. Magnesite;
vii. Mould;
viii. Any timber pest activity, pest infestation or damage caused by a pest infestation and/or anything pest related.
ix. Any single minor defect;
x. Any cost or plan to rectify any defects and/or repair work;
xi. Provide a comment on any risk of flooding, earthquake and/or any other singularity cause by nature that my affect the structural integrity of the Property. xii. This report is not a Swimming pool Safety report and the report will not include comment on Swimming Pools, Spas including pumps and equipment.
7. REPORT EXCLUSION BASED ON WEATHER
The Diagnosis and report WILL NOT report on any defects which may not be apparent due to prevailing weather conditions at the time of the Diagnosis including detection of rising damp and leaks. Such defects may only become apparent in differing weather conditions
8. CESSATION OF DIAGNOSIS
The Inspector may cease (without any liability of refund) a diagnosis or not inspect a property, upon encountering asbestos, mould, Magnesite or heavy timber damage, which causes the Inspector to have safety concerns.
9. CONTENT OF REPORT
The Diagnosis Report will be limited to the Extent of Reporting and will therefore only include information in relation to:
i. The Area(s) inspected and/or not inspected with reasons;
ii. Any major defects being defined as defects that need to be rectified to avoid unsafe conditions and/or a defect that is a safety hazard or will likely be a safety hazard and/or an urgent and serious safety hazard;
iii. A general impression regarding the extent of minor defects; and iv. A conclusion, which will address the incidence of major and minor, defects, relative to the average condition of a property similar to the Property being the subject of the Diagnosis.
The conclusion will only comment on the overall condition of the Property.
10. STATUS OF REPORT
a. The Report is not a certificate of compliance that the property complies with the requirements of any Act, regulation, ordinance, local law or by-law, or as a warranty or an insurance policy against problems developing with the building in the future.
b. The Report will be made solely for the use and benefit of the Client. No liability or responsibility whatsoever, in contract or tort, is accepted to any third party who may rely on the report wholly or in part. Any third parties acting or relying on the report, in whole or in part will do so at their own risk
11. INSPECTOR’S FEE
The Client shall pay to the Inspector the fee as advised by the Inspector and in line with the milestone/payment plan stated in the letter of engagement. This is a reflect of time spent, as well as factors such as complexity, urgency, inherent risks, use of techniques, knowhow and research together with the level of skills and expertise required of the personnel needed to perform and review the Solutions. This may also include any time spent travelling for the purpose of the Solutions that cannot be used productively for other purposes.
12. DIAGNOSIS LIMITATIONS AND EXCLUSIONS
a. The Inspector will conduct a non-invasive visual Diagnosis which will be limited to those agreed but accessible areas and sections of the property to which safe and Reasonable Access is both available and permitted on the date and time of the Diagnosis in line with the checklist.
b. Where reasonable entry to an area in the property is denied to the inspector, or where safe and reasonable access of the area of the property to be inspected is not available, these areas shall be deemed excluded from and do not form part of, the Diagnosis. Those areas may be the subject of an additional Diagnosis upon request subject to another pre-Diagnosis agreement on the same terms herein.
c. The scope of Diagnosis shall not involve any invasive Diagnosis including cutting, breaking apart, dismantling, removing or moving objects including, but not limited to, roofing, wall and ceiling sheeting, ducting, foliage, mouldings, debris, roof insulation, floor or wall coverings, sidings, fixtures, floors, pavers, furnishings, appliances ,or personal possessions.
d. Any stored or scattered goods, stored items including boxes, parked cars and bikes, boats, trailers, A/C units and ducting and any external covering foliage, plants, vines, stored fire wood and timbers, vines clinging to external wall surfaces, trees covering areas are considered factors that will hinder the Diagnosis and shall as much as possible to avoided by the Client.
13. WARRANTIES AND QUALITY
a. The Inspector warrants that it will do everything reasonable to inspect the agreed areas of the property as stated in the checklist thoroughly and responsibly subject to any foreseeable or unforeseeable restrictions.
b. The Inspector warrants that it will list all the limitations encountered, restricting the Inspector within the Diagnosis Report.
c. The Client warrants that they will not hold the Inspector liable for any Area of the Property that the Inspector could not reasonably inspect due access and restrictions on a diagnosis.
d. The Client warrants that it will not rely on the report after a period of seven (7) days as this is a visual Diagnosis condition which may change between the day of Diagnosis and the day of any defect being apparent such as, but not limited to, different weather conditions, removal of furniture, damage done by occupants, settling of the land, extreme weather damages or anything that could cause the visual effect of a defect to become known.
14. LIABILITY
a. The Inspector accept no liability to anyone, other than the Client, in connection with the Solutions, unless otherwise agreed by parties in writing. The Client agrees to indemnify the Inspector for any liability (including legal costs) that the Inspector incur in connection with any claim by anyone else in relation to the Solutions.
b. The Inspector will not be liable to the client for loss of profit, goodwill, business opportunity, anticipated savings or benefits or indirect or consequential loss.
c. The Inspector only accepts liability to pay damages where it has been established that there is loss or damage suffered by the Client as a direct result of the provision of the Solutions by the Inspector where this arises as a consequence of a breach of any of our contractual obligations or negligence by the Inspector.
d. The entire and collective liability of the Inspector to the Client arising out of or relating to this Letter of engagement, including without limitation on account of performance or non-performance of obligations, and regardless of the cause of action, whether in contract, tort (including without limitation negligence), statute or otherwise, will be limited to the payment of damages and will not exceed the amount paid or payable to the Inspector by the Client in the letter of engagement.
e. Where the Inspector agrees in writing to accept liability to more than one party, the limit on its liability in clause 15(d) will be shared between them, and it is up to those parties how they share it.
f. If the Inspector is liable to the Client, and another person would be liable to the Client in respect of the same loss (save for your contractual arrangements with them), then (i) the compensation payable by the Inspector to the Client in respect of that loss will be reduced; (ii) the reduction will take into account the extent of the responsibility of that other person for the loss; and (iii) in determining the extent of the responsibility of that other person for the loss, no account will be taken of (a) any limit or exclusion placed on the amount that person will pay or (b) any shortfall in recovery from that person (for whatever reason).
15. DISPUTE RESOLUTION
a. In the event of any dispute or claim arising out of, or relating to the Diagnosis or the Report, the Client shall notify the Inspector as soon as possible of the dispute or claim by email, or Whatsapp.
b. The Client shall allow the Inspector (which includes persons nominated by the Inspector) to visit the property (which visit must occur within fourteen (14) days of the Client’s notification to the Inspector) and give the Inspector full access in order that we may fully investigate the complaint. You will be provided with written response to your dispute or claim within fourteen (14) days from the date of the Diagnosis.
c. Where the above fails, the parties will attempt to resolve it by discussion and negotiation.
d. Thereafter, if the dispute remains unresolved, then same shall be resolved by binding mediation under the auspices of the Lagos State Multidoor Courthouse. The mediation shall be conducted in English and shall be in Lagos. Each party shall bear its own costs and expenses of fees incurred in connection with the arbitration process.
e. Any claims must be brought no later than one (1) year after any alleged breach.
16. DEFAULT AND TERMINATION
a. The Inspector reserves the exclusive right to immediately terminate the Diagnosis:
i. where the Client materially breaches these terms and conditions/letter of engagement and does not remedy the breach within three (3) working days,
ii. Non-payment of the Inspector’s Fee by the Client. iii. Safety concerns. iv. The Client is or appears likely to be unable to pay its debts or becomes insolvent.
v. The performance of the Diagnosis (including the application of any fee arrangements) may breach a legal or regulatory requirement.
b. The Client shall pay the Inspector for all Solutions performed up to the date of termination. Where there is a fixed fee for Solutions, the Client shall pay for the Solutions performed by the Inspector on the basis of the milestone achieved, up to the amount of the fixed fee.
c. If the Inspector’s fee is refunded for any reason whatsoever then the Diagnosis Report provided (if any) will be deemed invalid and annulled.
17. CONFIDENTIALITY
Parties agree to use each other’s confidential information only in relation to the Solutions, and not to disclose it, except where required by law or regulation.
18. CHANGES
Either Party may request a change to the Solutions as stated in the letter of engagement or checklist agreement; and such changes will only be effective when agreed in writing.
19. MATTERS BEYOND REASONABLE CONTROL
No party will be liable to another if it fails to meet its obligations due to matters beyond its reasonable control.
20. ENTIRE AGREEMENT
This agreement forms the entire agreement between the parties in relation to the Solutions. It replaces any earlier agreements, representations or discussions. Subject to clause 8.4, no party is liable to any other party (whether for negligence or otherwise) for a representation that is not in this agreement.