The Next Generation of Building Certifiers
Terms & Conditions
TERMS OF ENGAGEMENT
Private Certification – Building Act 1975 (Qld)
By completing this document, you (Client) are acknowledging that you have appointed Rocket Building Approvals (Matt Stewart) A15025781, as employee of Rocket Building Approvals (Building Surveyor) to provide the Development Application Assessment Services for the Project and are entering into an agreement with the Building Surveyor as to the terms and conditions which apply to the Development Application Assessment Services.
1.DEVELOPMENT APPLICATION ASSESSMENT SERVICES
1.1The Development Application Assessment Services include, as relevant for the Project:
1.1.1 assessment of a Development Application for the Project against the National Construction Code and the Queensland Design Code;
1.1.2 inspections required for the Project by the Act or otherwise before, during construction and at completion;
1.1.3 determining a Development Application for the Project in accordance with the Act;
1.1.4 providing regulatory advice on the Project;
1.1.5 managing a Development Application for the Project.
1.2 The Development Application Assessment Services exclude:
1.2.1 building design or advice for the Project beyond Development Application management or regulatory advice;
1.2.2 drafting plans or any other documents required for the Application;
1.2.3 matters pertaining to Building Quality
1.2.4 any guarantee by the Building Surveyor that the Project will obtain certification under the Act;
1.2.5 any act or activity deemed by the Building Surveyor to be contrary to the requirements of the Act, the code of conduct for building certifiers adopted under the Act, the Planning Act 2016 (Qld) or other legislation as relevant to the Project
1.3 The Client acknowledges that the Building Surveyor is subject to the requirements of the Act and the code of conduct for building certifiers adopted under the Act. This means that the Building Surveyor is obligated by law to act in the public interest at all times and must assess the Project on its merits and in strict accordance with law. As a result, the Client understands that the Building Surveyor’s obligations are to assess the Project and comply with the Act, and this means that the Building Surveyor cannot guarantee that the Project will be approved and that the Building Surveyor may be required to act against the Client’s interests.
1.4 The Client acknowledges that the Building Surveyor may engage in any other business, occupation or activity during the Term, provided that does not detrimentally affect the performance of the Development Application Assessment
1.5 If the Client engages another person to provide services substantially the same as the Development Application Assessment Services in respect of the project, then the Building Surveyor may terminate this agreement.
1.6 The Client acknowledges and agrees that any instructions received by the Building Surveyor for the supply of the Development Application Assessment Services constitutes acceptance of the terms and conditions contained in this agreement.
1.7 The Client acknowledges and agrees that works are not to commence until the Decision Notice and stamped approved plans are issued from this office. If Rocket Building Approvals are made aware that works have begun prior to the issue of Building Approval the certifier may terminate this agreement.
1.8 Owner Builder Applications are accepted on a case by case basis. If the applicant/owner decides to become an owner builder during the assessment stage; this office has the right to disengage/cancel applications that were quoted under the notion that a licensed builder would be engaged to complete the scope of work. If this office accepts the application as owner/builder a surcharge (of the certification fees) will apply. This surcharge will be determined upon application.
Please refer to the refund policy set out in schedule 3.7.
.9 The provided quote is current for a project works value of 2,000,000 AUD if the works will be over this limit, then Rocket reserve the right to re-quote as this exceeds the insurable value. If Rocket Building Approvals is formally engaged and the engagement agreement indicates under 2,000,000 AUD however when the QBCC certificate is provided and the cost of works are over Rocket Building Approvals will charge additionally in increments of $250 per $100,000 over the 2,000,000 limit to cover additional insurance costs.
1.10 Additional fees for services are as follows (fees exclusive gst):
$600 Amended Decision Notice and Plans (plus the
Council archiving fee)
$250- Amended Council RAA (plus Councils
$100- Reinspection Class 10a
$150 – Amended Documents – No Amended Decision Required
$160- Reinspection Final 1a
$175- Reinspection Pool Barrier
$600 – Extension of time 12 Months
POA adding structures to application.
2. DELIVERY OF THE DEVELOPMENT APPLICATION
The Building Surveyor may subcontract or licence all or part of its obligations under this agreement without prior notice to the Client.
3.1 The Fees and Charges payable for the Development Application Assessment Services are as per the schedule.
3.2 The Building Surveyor reserves the right to change the Fee in the event of a variation to the scope of work for the Development Application Assessment Services. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation due to unforeseen circumstances, or as a result of increases to the Building
Surveyor in the cost of materials and labour) will be charged for on the basis of the Building Surveyor’s fee proposal and will be shown as
variations on the invoice. Payment for all variations must be made in full at their time of completion.
3.3 Payment of an invoice is required within 14 days of issue.
3.4 Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Client and the Building Surveyor.
3.5 Receipt by the Building Surveyor of any form of payment other than cash does not constitute payment until that payment has been honoured, cleared or recognised by the building surveyor.
3.6 GST, other taxes, duties, disbursements and applicable government and council fees and charges will be added to the Fee other than where they are expressly included in the Fee.
3.7 Refunds- If a project is cancelled by applicant the following is a breakdown of refundable fees:
1) Prior to issue of a request for information (RFI)– 75% of Rocket Building Approval fees and all Council fees if no lodgements have been made.
2) Post issue of a request for information (RFI) – 5% of Rocket Building Approvals fees and all Council fees if no lodgements have been made.
3) Post issue of Building Approval- Refund of all inspections not undertaken and Council fees yet to be lodged.
4. INTELLECTUAL PROPERTY AND DATA
4.1 Nothing in this agreement affects the Intellectual Property Rights of either party, except as set out in this clause.
4.2 The Client grants the Building Surveyor an unrestricted, royalty free licence to use an manipulate all Intellectual Property Rights in any Data which the Client provides to the Building Surveyor to the extent reasonably necessary for the Building Surveyor to perform the
Development Application Assessment Services.
4.3 The Client warrants that any Data provided by it to the Building Surveyor will not infringe the Intellectual Property Rights of any person. The Client indemnifies the Building Surveyor against any direct loss, costs, expenses, demands or liability arising out of a claim by a third party against the Surveyor alleging that such Data infringes any such Intellectual Property Rights.
5. INDEMNITY AND EXCLUSION OF LIABILITY
5.1 The Building Surveyor must indemnify the Client and its employees, officers and contractors against all claims, demands, expenses, loss or damage in respect of loss or damage to any property, or the death of or personal injury to any person, caused or contributed to by the Building Surveyor, a breach by the Building Surveyor of this agreement, a wilful unlawful or negligent act or omission of the Building Surveyor, and any claim action or proceeding by a third party against the Client or its employees officers and contractors caused or contributed to by the Building Surveyor.
5.2 This indemnity is reduced by the extent to which the Client contributes to
the event giving rise to the claim for the indemnity.
5.3 The Building Surveyor must perform the Development Application Assessment Services at its own risk in all things and releases the Client and its employees, officers, members and contractors from all claims, actions, proceedings, costs, expenses, losses, suffering, illness and liabilities incurred by the Building Surveyor or its employees, agents, subcontractors, third parties, and customers which arise from the performance of the Development Application Assessment Services.
5.4 Notwithstanding any other provision in this agreement, the Building Surveyor is not liable to the Client, nor is it required to indemnify the Client, for any loss or damage suffered by the Client or for any claim against the Client (howsoever arising) for economic, indirect or
consequential losses of any kind whatsoever.
5.5 The Client indemnifies the Building Surveyor and its employees, officers and contractors against all claims, demands, expenses, loss or damage in respect of loss or damage to any property, or the death of or personal injury to any person, caused or contributed to by the Client, a breach by the Client of this agreement, a wilful unlawful or negligent act or omission of the Client, and any claim action or proceeding by a third party against the Building Surveyor or its employees officers and contractors caused or contributed to by the Client.
5.6 The Client releases and holds harmless the Building Surveyor against all claims, demands, expenses, loss or damage arising in connection with the Client’s reliance on, or use of, any aspect of the Development Application Assessment Services, including advice, given to the Client by the Building Surveyor in a manner which is not contemplated or authorised by the Act or otherwise not in accordance with any exclusions or assumptions given by the Building Surveyor.
6. MUTUAL WARRANTIES
Each party represents and warrants to the other that as at the date of this agreement:
6.1 all actions, conditions and things required to be taken, fulfilled and done by it in order to enable it to enter into, exercise its rights and perform its obligations under this agreement have been done; and
6.2 all Authorisations required for its entry into, exercise of its rights under, and performance of its obligations under this agreement have been obtained.
7. CLIENT WARRANTIES AND OBLIGATIONS
7.1 The Client warrants:
7.1.1 that any Data provided to the Building Surveyor is accurate and complete in all respects;
7.1.2 that, in performing the Development Application Assessment Services, the Surveyor acts with the Client’s authority;
7.1.3 that no other person has been appointed to perform the Development Application Assessment Services in relation to the Project.
7.2 The Client must:
7.2.1 provide all information required by the Building Surveyor within the time specified by the Building Surveyor to enable the Building Surveyor to perform the Development Application Assessment Services;
7.2.2 provide all information required by the Building Surveyor within the time specified by the Building Surveyor to enable the Building Surveyor to perform the Development Application Assessment Services;
7.2.3 Give the Building Surveyor such access to the Project and any relevant site as is required by the Building Surveyor to perform the Development Application Assessment Services.
8. FORCE MAJEURE
8.1 If a Force Majeure Event causes delay or failure by a party to perform its obligations under this agreement:
8.1.1 Neither party is liable for such delay or failure; and
8.1.2 All obligations of a party under this agreement are suspended until the Force Majeure Event ceases to apply.
8.2 A party which is, by reason of a Force Majeure Event, unable to perform any obligation or condition required by this agreement must:
8.2.1 notify the other party as soon as possible giving:
184.108.40.206 reasonably full particulars of the Force Majeure Event;
220.127.116.11 the date of commencement of the Force Majeure Event and an estimate of the time required to enable it to resume full performance of its obligations; and
18.104.22.168 Where possible, the means proposed to be adopted to remedy or abate the Force Majeure Event;
8.2.2 Use all reasonable diligence and employ all reasonable means to remedy or abate the Force Majeure Event as soon as possible;
8.2.3 Resume performance as soon as possible after termination of the Force Majeure Event;
22.214.171.124 the date of commencement of the Force Majeure Event and an estimate of the time required to enable it to resume full performance of
its obligations; and
126.96.36.199 where possible, the means proposed to be adopted to remedy or abate the Force Majeure Event;
8.2.2 use all reasonable diligence and employ all reasonable means to remedy or abate the Force Majeure Event as soon as possible;
8.2.3 resume performance as soon as possible after termination of the Force
Majeure Event or after the Force Majeure Event abates to an extent which permits resumption of performance;
8.2.4 notify the other party when the Force Majeure Event terminates or abates to an extent which permits resumption of performance; and
8.2.5 notify the other party when resumption of performance occurs.
8.3 If a delay or failure under this clause exceeds 60 days, either party may immediately terminate this agreement by notice to the other party.
9.1 This agreement can only be terminated in accordance with section 144 of
9.2 Notwithstanding any other provision of this agreement, the Client must pay the Building Surveyor the Fee within 14 days of the termination of this agreement, or such part of the Fee which is, at that time, unpaid.
9.3 Termination of this agreement under this clause does not affect any
accrued rights or remedies of either party.
10. CONFIDENTIAL INFORMATION
10.1 Subject to the Act, each party agrees that it will not use any Confidential Information of the other party or allow any Confidential Information of the other party to be used for any purpose, except for the purposes of and in the manner contemplated by this agreement, and agrees that it will:
10.1.1 keep confidential;
10.1.2 take reasonable steps to ensure that the party’s officers and employees do not disclose to a third party;
10.1.3 maintain proper and secure custody of; and
10.1.4 not use or reproduce in any form, any Confidential Information belonging to the other party.
11.1 The Building Surveyor must maintain at all times during the Term all insurances required by Law or this agreement.
11.2 The Building Surveyor must produce evidence of those insurances to the Client upon reasonable request.
11.3 The Building Surveyor must not allow any act or omission which would make any such policy of insurance void or unenforceable.
12. DISPUTE RESOLUTION
12.1.1 A party must not commence arbitration or court proceedings (except for urgent equitable or injunctive relief) in respect of a dispute under this agreement, unless it first attempts to resolve the dispute by negotiation and mediation under this clause.
12.1.2 A party claiming that a dispute has arisen under this agreement must give written notice to the other party specifying the nature and details of the dispute.
12.2.1 On receipt of that notice by the other party, the parties must negotiate in good faith to resolve the dispute.
12.2.2 If the parties are unable to resolve the dispute within 10 Business Days, they must promptly refer the dispute:
188.8.131.52 in the case of the Client to the Client’s Representative; and
184.108.40.206 in the case of the Surveyor to the Surveyor’s Representative.
12.2.3 Those persons must meet to resolve the dispute and must be authorised to resolve the dispute.
12.3.1 If those persons are unable to resolve the dispute within 10 Business days of referral, a party may refer the dispute for mediation under the mediation rules of the Resolution Institute to:
220.127.116.11 a mediator agreed by the parties; or
18.104.22.168 if the parties are unable to agree a mediator within five Business Days, a mediator nominated by the Resolution Institute.
If possible, each party must perform its obligations under this agreement during negotiations, mediation and arbitration proceedings.
13.1 Entire agreement
13.1.1 constitutes the entire agreement between the parties about its subject matter;
13.1.2 supersedes any prior understanding, agreement, condition, warranty, indemnity or representation about its subject matter.
A waiver of a provision of or right under this agreement must be in writing signed by the party giving the waiver and is effective only to the
extent set out in the written waiver.
13.3 Exercise of power
13.3.1 The failure, delay, relaxation or indulgence by a party in exercising a power or right under this agreement is not a waiver of that power or right.
13.3.2 An exercise of a power or right under this agreement does not preclude a further exercise of it or the exercise of another right or
Each indemnity, obligation of confidence and other term capable of taking effect after the expiration or termination of this agreement, remains in force after the expiration or termination of this agreement.
13.5 Governing law
This agreement is governed by the law in Queensland and is subject to the jurisdiction of the Courts in Queensland.
13.6 Consumer Law
13.6.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Competition and Consumer Act 2010 (Cth) or the Fair Trading Act 1989 (QLD) (including any substitute to those Acts or re-enactment thereof), except to the extent permitted by those Acts where applicable.
13.6.2 Where the Client buys Development Application Assessment Services as a consumer these terms and conditions shall be subject to any laws or legislation governing the rights of consumers and shall not affect the consumer’s statutory rights.
14.1A Notice, demand, consent, approval or communication under this agreement (Notice) must be:
14.1.1 in writing, in English and signed by a person authorised by the sender; and
14.1.2 hand delivered or sent by prepaid post or email to the recipient’s address or email address specified in the Schedule, as varied by any Notice given by the recipient to the sender.
14.2A Notice is deemed to be received:
14.2.1 if hand delivered, on delivery;
14.2.2 if sent by prepaid post, two Business Days after posting (or seven Business Days after posting if posting to or from a place outside
14.2.3 if sent by email, at the time deemed to be the time of receipt under the Electronic Transactions (Queensland) Act 2001 (Qld) or Electronic Transactions Act 1999 (Cth) if the notice was being given under a law of the Commonwealth of Australia. However if the Notice is deemed to be received on a day that is not a Business Day or after 5:00pm, the Notice is deemed to be received at 9:00am on the next Business Day.
15. DEFINITIONS AND INTERPRETATION
15.1 Definitions In this agreement:
15.1.1 Act means the Building Act 1975 (Qld)
15.1.2 Authorisation means any authorisation, agreement approval, licence, permit, consent, qualification, accreditation, filing, registration, certificate, resolution, direction, declaration or exemption and any renewal and variation of them by or with a Governmental Agency.
15.1.3 Building Quality means any matter that could or might be a defective item with respect to any contract between the Client and another party which defines the standards of work to be achieved pursuant to that contract with respect to the Project but does not include matters which relate to conformance by the Project to technical standards including the National Construction Code.
15.1.4 Building Surveyor means the person identified as such on the front page of this agreement.
15.1.5 Confidential Information means any documentation or information of a confidential nature supplied by either party to the other in connection with this agreement and includes all scientific, technical, manufacturing, performance, sales, financial, commercial, contractual or marketing information possessed by a party but excludes any documentation or information which has been previously published or otherwise disclosed to the general public or is required to be disclosed by law.
15.1.6 Data means information directly or indirectly relating to this agreement and/or the Development Application Assessment Services and includes software (including source code and object code versions) manuals, diagrams, graphs, charts, projections, specifications, estimates, records, concepts, documents, accounts, plans, formulae, designs, methods, techniques, processes, supplier lists, price lists, market research, information, correspondence, letters, warranties and manufacturer’s information and data sheets, personal identification numbers (PINS) and access codes for security and alarm systems, and papers of every description including all copies of and extracts from them.
15.1.7 Development Application Assessment Services is defined in Clause 1 to this agreement.
15.1.8 Fee is defined in clause 3.
15.1.9 Force Majeure Event means an event beyond the reasonable control of the parties which precludes a party from performing on time an obligation under this agreement. Such circumstances include:
22.214.171.124 acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster; and
126.96.36.199 acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution.
15.1.10 Intellectual Property Rights includes property and rights in respect of or in connection with copyright (including future copyright and rights in the nature of or analogous to copyright), know-how, trade mark, service mark, design, inventions (including patents), semi-conductor or circuit layout rights, trade, business or company names, or other proprietary rights, or any rights to registration of such rights (including all renewals and extensions) whether created before or on or after this agreement.
15.1.11 law means any statute, regulation, order, rule, subordinate legislation or other document enforceable under any statute, regulation, order, rule or subordinate legislation.
15.1.12 Term means the period starting on the date that the client accepts the terms and conditions of this agreement as per clause 1 and concluding upon the completion of the Development Application Assessment Services or Termination of this agreement, whichever occurs first.
In this agreement, unless the context otherwise requires:
15.2.1 headings do not affect interpretation;
15.2.2 the Schedule forms part of the agreement and is correct;
15.2.3 singular includes plural and plural includes singular;
15.2.4 words of one gender include any gender;
15.2.5 a reference to a party includes its executors, administrators, successors and permitted assigns;
15.2.6 a reference to a person includes a partnership, corporation, association, government body and any other entity;
15.2.7 a reference to this agreement includes any schedules and annexures to this agreement;
15.2.8 an agreement, representation, warranty or indemnity by two or more parties (including where two or more persons are included in the same defined term) binds them jointly and severally;
15.2.9 an agreement, representation, warranty or indemnity in favour of two or more parties (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally;
15.2.10 a reference to legislation includes any amendment to it, any legislation substituted for it, and any subordinate legislation made under it;
15.2.12 a provision is not construed against a party only because that party drafted it;
15.2.13 an unenforceable provision or part of a provision may be severed, and the remainder of this agreement continues in force, unless this would materially change the intended effect of this agreement;
15.2.14 the meaning of general words is not limited by specific examples introduced by ‘including’, ‘for example’ or similar expressions;
15.2.15 an expression defined in the Act or the Planning Act 2016 (Qld) has the meaning given by that Act at the date of this agreement;
15.2.16 an expression defined in the Corporations Act 2001 (Cth) has the meaning given by the Act at the date of this agreement; and
15.2.17 an expression defined in the A New Tax System (Goods and Service
Tax) Act 1999 (Cth) has the meaning given by that Act at the date of this agreement