ENGAGEMENT AGREEMENT AND ACKNOWLEDGEMENTS
I hereby engage Custom Building Approvals pursuant to section 138 of the Building Act 1975 (Qld) to carry out building certification and the required inspections for the building work to be assessed under the Act in relation to the project. I acknowledge that if the Application or permit lapses, this engagement will automatically terminate upon the date of lapsing.
I understand that this engagement relates solely to assessment under the Building Act 1975 and does not extend to confirming compliance with the Planning Scheme Self-Assessable Codes or any Planning Scheme Code Assessment conditions that fall outside the scope of the Building Act.
I acknowledge that all fees must be paid prior to assessment of the building application unless otherwise agreed in writing. Where Local Government fees differ from those quoted, the actual applicable Local Government fee will apply and is payable in full.
I acknowledge that the application will be assessed under the Deemed-to-Satisfy provisions of the National Construction Code, and that additional fees will apply should any Performance Solutions be required.
Any agreement between the Client and Custom Building Approvals will remain in place unless any party through no fault of their own is unable to carry out work lawfully; or the application is disengaged as per the Building Act or as per the below Terms of Trade.
As part of the building approval process, certificate templates will be provided to the Client including but not limited to Form 15’s, Form 43’s and Form 12’s. The client acknowledges that these certificates must be completed by a licenced trade or supplier and are required to finalise the application.
The Client acknowledges the Engagement Agreement and below Terms of Trade and the signee is authorised to accept these terms on behalf of the Client/Company.
IMPORTANT NOTE TO OWNER BUILDERS
If a registered builder is not being engaged to perform the proposed works and the total cost of work exceeds $11,000.00 (inc GST), a current QBCC Owner Builder Permit will be required before Custom Building Approvals can issue the Building Approval.
As an Owner Builder there are some aspects of the proposed work that a licenced trade must complete. This includes, but is not limited to, waterproofing, electrical works including smoke alarms, roof and gutter installation, termite protection and Surveyor boundary clearances. Owner Builders and unlicenced trades cannot sign off on these works.
Upon completion you will be required to provide certificates from the appropriate licensee. You will not be able to finalise your building approval until we receive the required certificates.
Similarly, there are certain products that will require a certificate to allow Custom Building Approvals to finalise the building application. If you are installing any of the following items you will be required to provide a Form 15 for the product supply:
– Glazing suppliers – Windows and doors;
– Glazing suppliers – Shower screens;
– Pool fence suppliers; and
– Truss manufactures.
If you arrange for an Engineer to complete a Footings, Slab or Frame inspection, a Form 12 must be provided from the Engineer. Please be aware that Engineers cannot complete Fire Separation Inspections or Final Inspections.
For installation of materials by non-licenced QBCC trades (e.g. Insulation), Custom Building Approvals will require detailed photographic evidence of the installation and completion of a Statutory Declaration. Further detail will be provided on this requirement at final stage if applicable to you.
The application cannot be finalised unless you provide Form 15 and Form 43 certificates from QBCC-licensed contractors, along with completed Form 12 certificates and a Competent Person Form for applicable works. These may include, but are not limited to:
– Waterproofing;
– Electrical works;
– Roof and Gutter installation;
– Termite protection;
– Glazing suppliers;
– Pool fence suppliers; and
– Surveyor Boundary Clearances.
Terms of trade
1. Definitions and interpretation
1.1 Definitions
Additional Charge means:
(a) fees or charges for additional work performed at the Client’s request or reasonably required as a result of the Client’s conduct, calculated in accordance with Custom Building Approvals’ then current prices; and
(b) expenses incurred by Custom Building Approvals, at the Client’s request or reasonably required as a result of the Client’s conduct.
Application means any request, submission or lodgement made on behalf of the Client by Custom Building Approvals for assessment and certification services, including but not limited to applications for building approvals, development approvals, demolition approvals, swimming pool approvals, inspections, or other related services under the Building Act 1975 (Qld) or other applicable legislation.
Business Day means a day that is not a Saturday, Sunday or public holiday in the place where the Services are principally being carried out.
Custom Building Approvals means Sunrise Certification Group Pty Ltd ACN 658 103 569.
Client means the person identified on a Quote as the customer and includes the Client’s agents and permitted assigns.
Intellectual Property Rights means intellectual property rights at any time protected by statute or common law, including copyright, trade marks, patents and registered designs.
Invoice means a tax invoice issued by Custom Building Approvals to the Client setting out the fees, charges, variations, disbursements, taxes and any other amounts payable for the services provided or to be provided under these terms.
Loss includes, but is not limited to, costs (including party to party legal costs and Custom Building Approvals’s legal costs), expenses, lost profits, award of damages, personal injury and property damage.
Quote means a written description of the Services to be provided, an estimate of Custom Building Approvals’s charges for the performance of the required work.
Services means the services to be provided by Custom Building Approvals to the Client in accordance with a Quote and these terms of trade.
1.2 Interpretations
In these terms of trade, unless the context otherwise requires:
(a) a reference to writing includes email and other communication established through Custom Building Approvals’s website (if any);
(b) the singular includes the plural and vice versa;
(c) a reference to a clause or paragraph is a reference to a clause or paragraph of these terms of trade;
(d) a reference to a party to these terms of trade or any other document or arrangement includes that party’s executors, administrators, successors and permitted assigns;
(e) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
(f) headings are for ease of reference only and do not affect the meaning or interpretation of these terms of trade; and
(g) if the date on which any act, matter or thing is to be done falls on a day which is not a Business Day, that act, matter or thing:
(i) if it involves a payment other than a payment which is due on demand must be done on the preceding Business Day; and
(ii) in all other cases, must be done on the next Business Day.
(a) a reference to writing includes email and other communication established through Custom Building Approvals’s website (if any);
(b) the singular includes the plural and vice versa;
(c) a reference to a clause or paragraph is a reference to a clause or paragraph of these terms of trade;
(d) a reference to a party to these terms of trade or any other document or arrangement includes that party’s executors, administrators, successors and permitted assigns;
(e) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
(f) headings are for ease of reference only and do not affect the meaning or interpretation of these terms of trade; and
(g) if the date on which any act, matter or thing is to be done falls on a day which is not a Business Day, that act, matter or thing:
(i) if it involves a payment other than a payment which is due on demand must be done on the preceding Business Day; and
(ii) in all other cases, must be done on the next Business Day.
2. General
(a) These terms of trade apply to all transactions between the Client and Custom Building Approvals relating to the provision of Services. This includes all quotations, contracts and variations. These terms of trade take precedence over terms of trade contained in any document of the Client or elsewhere.
(b) The variation or waiver of a provision of these terms or a party’s consent to a departure from a provision by another party is ineffective unless in writing signed by the parties.
(c) Custom Building Approvals may amend any details in a Quote by notice in writing to the Client. Such amended details supersede any relevant prior detail in dealings between the parties.
(b) The variation or waiver of a provision of these terms or a party’s consent to a departure from a provision by another party is ineffective unless in writing signed by the parties.
(c) Custom Building Approvals may amend any details in a Quote by notice in writing to the Client. Such amended details supersede any relevant prior detail in dealings between the parties.
3. Client Obligations
(a) To enable Custom Building Approvals to efficiently perform the Services, the Client must provide the following documents promptly upon request or as otherwise agreed:
(i) provide all information required by Custom Building Approvals within the time specified;
(ii) provide Custom Building Approvals with access to the project and any relevant site as required to perform the Services;
(iii) ensure that all plans forming part of an application are a true and accurate representation of the proposed development and identify all features on the lot, including existing buildings, structures and services (whether above or below ground); and
(iv) comply with any notices or requests issued by Custom Building Approvals.
(b) The Client acknowledges that failure to provide the documents listed above in a timely manner may result in delays in the assessment and approval process, for which Custom Building Approvals is not responsible.
(c) The Client acknowledges that Custom Building Approvals may request additional information during the approval process.
(d) All plans submitted by the Client must show:
(i) the gross floor area in square metres of existing and proposed areas individually;
(ii) the total gross floor area in square metres;
(iii) the total site cover in square metres and as a percentage of the block; and
(iv) boundary setbacks.
(e) All plans submitted must:
(i) be in PDF format and prepared by a suitably qualified person;
(ii) be drawn to scale; and
(iii) include, at a minimum, a site plan, floor plan, elevations and section.
(f) Where large amounts of fill are to be exported from or imported to the site, the volume must be clearly nominated on the plans in cubic metres.
(g) A boundary clearance certificate (Surveyor Setout) may be required from a Registered Practising Engineer (QLD).
(h) The Client acknowledges that for swimming pool applications, the pool must be inspected within six months from the date of approval shown on the Decision Notice. This timeframe does not apply to swimming pools lodged at the same time as a dwelling or similar structure.
(i) The Client acknowledges that all demolition applications require an asbestos report from a suitably qualified person, which must be provided to Custom Building Approvals before a Building Approval can be issued. If asbestos is present, an asbestos clearance report must also be provided before the application can be finalised
(j) The Client acknowledges that no works are to commence on site until the Client has received a copy of the Building Approval, including the Decision Notice and stamped approved plans.
(k) Custom Building Approvals will only communicate with the nominated Applicant and/or the property owner. If the Client wishes for a third party to act or communicate on their behalf, the Client must provide written authority authorising that third party to do so.
(l) The Client consents to the use of electronic communications and electronic signatures in connection with this engagement, in accordance with the Electronic Transactions (Queensland) Act 2001.
(i) provide all information required by Custom Building Approvals within the time specified;
(ii) provide Custom Building Approvals with access to the project and any relevant site as required to perform the Services;
(iii) ensure that all plans forming part of an application are a true and accurate representation of the proposed development and identify all features on the lot, including existing buildings, structures and services (whether above or below ground); and
(iv) comply with any notices or requests issued by Custom Building Approvals.
(b) The Client acknowledges that failure to provide the documents listed above in a timely manner may result in delays in the assessment and approval process, for which Custom Building Approvals is not responsible.
(c) The Client acknowledges that Custom Building Approvals may request additional information during the approval process.
(d) All plans submitted by the Client must show:
(i) the gross floor area in square metres of existing and proposed areas individually;
(ii) the total gross floor area in square metres;
(iii) the total site cover in square metres and as a percentage of the block; and
(iv) boundary setbacks.
(e) All plans submitted must:
(i) be in PDF format and prepared by a suitably qualified person;
(ii) be drawn to scale; and
(iii) include, at a minimum, a site plan, floor plan, elevations and section.
(f) Where large amounts of fill are to be exported from or imported to the site, the volume must be clearly nominated on the plans in cubic metres.
(g) A boundary clearance certificate (Surveyor Setout) may be required from a Registered Practising Engineer (QLD).
(h) The Client acknowledges that for swimming pool applications, the pool must be inspected within six months from the date of approval shown on the Decision Notice. This timeframe does not apply to swimming pools lodged at the same time as a dwelling or similar structure.
(i) The Client acknowledges that all demolition applications require an asbestos report from a suitably qualified person, which must be provided to Custom Building Approvals before a Building Approval can be issued. If asbestos is present, an asbestos clearance report must also be provided before the application can be finalised
(j) The Client acknowledges that no works are to commence on site until the Client has received a copy of the Building Approval, including the Decision Notice and stamped approved plans.
(k) Custom Building Approvals will only communicate with the nominated Applicant and/or the property owner. If the Client wishes for a third party to act or communicate on their behalf, the Client must provide written authority authorising that third party to do so.
(l) The Client consents to the use of electronic communications and electronic signatures in connection with this engagement, in accordance with the Electronic Transactions (Queensland) Act 2001.
4. Invoicing and payment
Quote
(a) The Client may submit an enquiry to Custom Building Approvals by email, through our website or by any other method accepted by Custom Building Approvals
(b) Custom Building Approvals will review the Client’s plans and other relevant information (where necessary) and provide a written Quote based on the information provided by the Client.
(c) Fees payable for the Development Application Assessment Services will be as set out in the Quote, subject to further investigation.
(d) Unless stated otherwise, each Quote is valid for 90 days from the date of issue, except where council fees are scheduled to increase within that period. In such cases, any increase in council fees will be passed on to the Client and reflected in the final invoice.
(e) Following provision of a Quote to the Client, Custom Building Approvals is not obliged to commence work until the Quote has been accepted by the Client. This occurs by the Client signing the Quote and returning the form to Custom Building Approvals.
(f) Custom Building Approvals reserves the right to vary its fees if there is any change to the scope of work required to perform the Services. This includes, but is not limited to, circumstances involving additional assessment work or unforeseen complexities. Any such fee increases will be applied to the Client’s invoice in accordance with the Building Surveyor’s fee proposal.
(g) Subject to any obligations in respect of consumer guarantees under chapter 3, part 3-2, division 1 of the Australian Consumer Law (ACL), this estimate is not binding upon Custom Building Approvals.
(b) Custom Building Approvals will review the Client’s plans and other relevant information (where necessary) and provide a written Quote based on the information provided by the Client.
(c) Fees payable for the Development Application Assessment Services will be as set out in the Quote, subject to further investigation.
(d) Unless stated otherwise, each Quote is valid for 90 days from the date of issue, except where council fees are scheduled to increase within that period. In such cases, any increase in council fees will be passed on to the Client and reflected in the final invoice.
(e) Following provision of a Quote to the Client, Custom Building Approvals is not obliged to commence work until the Quote has been accepted by the Client. This occurs by the Client signing the Quote and returning the form to Custom Building Approvals.
(f) Custom Building Approvals reserves the right to vary its fees if there is any change to the scope of work required to perform the Services. This includes, but is not limited to, circumstances involving additional assessment work or unforeseen complexities. Any such fee increases will be applied to the Client’s invoice in accordance with the Building Surveyor’s fee proposal.
(g) Subject to any obligations in respect of consumer guarantees under chapter 3, part 3-2, division 1 of the Australian Consumer Law (ACL), this estimate is not binding upon Custom Building Approvals.
Amendments
(h) The Client may request that a Quote be varied by providing a request in writing to Custom Building Approvals. A request for an amendment must be agreed to in writing by Custom Building Approvals in order to have effect.
(i) If the Client wishes to vary its requirements after a Quote has been prepared by Custom Building Approvals, Custom Building Approvals reserves the right to amend the Quote to include any Additional Charge in respect of any extra costs incurred or additional work carried out due to the amendment, in accordance with its then current charge rates. A revised Quote issued by Custom Building Approvals in respect of the requested amendment supersedes the original Quote. If the revised Quote only specifies additional work, the Quote for that additional work will be in addition to the immediately preceding Quote for the Goods or Services or both.
(i) If the Client wishes to vary its requirements after a Quote has been prepared by Custom Building Approvals, Custom Building Approvals reserves the right to amend the Quote to include any Additional Charge in respect of any extra costs incurred or additional work carried out due to the amendment, in accordance with its then current charge rates. A revised Quote issued by Custom Building Approvals in respect of the requested amendment supersedes the original Quote. If the revised Quote only specifies additional work, the Quote for that additional work will be in addition to the immediately preceding Quote for the Goods or Services or both.
Invoicing and Payment Terms
(j) Custom Building Approvals may issue Invoices:
(i) prior to commencing the provision of the Services, for an amount equal to the Quote and Additional Charges where Custom Building Approvals has not previously carried out work for the Client or where Custom Building Approvals chooses to do so;
(ii) Custom Building Approvals may issue one or more invoices for a proportion or the whole of the amount of the Quote (the proportion to be calculated at Custom Building Approvals’s discretion either for work done to that point, work in the future or both) and require that proportion of the Quote be paid in advance of any further Services being provided; or
(iii) upon completion of the provision of the Services or any time after such completion, for an amount equal to the Quote or the balance of the Quote outstanding, any Additional Charges and any amount not previously invoiced, or if no Quote was provided, for an amount representing Custom Building Approvals’s charge for the work performed in completing the Application and for any Additional Charges.
(k) All Invoices must be paid in full within 14 days of issue unless otherwise agreed in writing.
(l) Payment may be made by direct credit, cash, credit card or any other method agreed between the Client and Custom Building Approvals.
(m) Credit card payments will incur a 1.2% bank processing fee.
(n) Payment will not be deemed made until cleared funds are received.
(o) The amount payable by the Client will be the amount set out in the Invoice. This will be calculated as:
(i) the amount for the Services as set out in the Quote and any Additional Charges; or
(ii) where no Quote has been provided by Custom Building Approvals, Custom Building Approvals’s usual charges for the Services.
(p) If any Invoice is due but unpaid, Custom Building Approvals may withhold the provision of any Services until overdue amounts are paid in full.
(q) Custom Building Approvals may in its complete discretion apply any payment received from the Client to any amount owing by the Client to Custom Building Approvals.
(r) The Client is not entitled to retain any money owing to Custom Building Approvals regardless of any default or alleged default by Custom Building Approvals of these terms of trade, including (but not limited to) the supply of allegedly faulty provision of Services to an inadequate standard or a delay in the provision of Services. Nothing in this paragraph affects the Client’s rights for any alleged failure of a consumer guarantee under the ACL.
(s) The Client is to pay Custom Building Approvals on demand interest at the rate of 10% per year on all overdue amounts owed by the Client to Custom Building Approvals, calculated daily.
(t) All costs and expenses associated with collecting overdue amounts, including (but not limited to) legal fees and internal costs and expenses of Custom Building Approvals, are to be paid by the Client as a debt due and payable under these terms of trade.
(u) Where a refund is required, any funds will be returned only to the original payee and via the original payment method. In the event an Application is cancelled, the Client will be liable for any fees incurred in disengaging Custom Building Approvals and closing the file.
(v) Once Custom Building Approvals has been engaged, the Client will be responsible for any fees incurred in the event of cancellation or termination of the Application, including fees associated with the preparation and issuance of a Form 22 – Notice of Disengagement.
(w) The Client and Custom Building Approvals agree to comply with their obligations in relation to Goods and Services Tax (GST) under the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any other applicable legislation governing GST.
(i) prior to commencing the provision of the Services, for an amount equal to the Quote and Additional Charges where Custom Building Approvals has not previously carried out work for the Client or where Custom Building Approvals chooses to do so;
(ii) Custom Building Approvals may issue one or more invoices for a proportion or the whole of the amount of the Quote (the proportion to be calculated at Custom Building Approvals’s discretion either for work done to that point, work in the future or both) and require that proportion of the Quote be paid in advance of any further Services being provided; or
(iii) upon completion of the provision of the Services or any time after such completion, for an amount equal to the Quote or the balance of the Quote outstanding, any Additional Charges and any amount not previously invoiced, or if no Quote was provided, for an amount representing Custom Building Approvals’s charge for the work performed in completing the Application and for any Additional Charges.
(k) All Invoices must be paid in full within 14 days of issue unless otherwise agreed in writing.
(l) Payment may be made by direct credit, cash, credit card or any other method agreed between the Client and Custom Building Approvals.
(m) Credit card payments will incur a 1.2% bank processing fee.
(n) Payment will not be deemed made until cleared funds are received.
(o) The amount payable by the Client will be the amount set out in the Invoice. This will be calculated as:
(i) the amount for the Services as set out in the Quote and any Additional Charges; or
(ii) where no Quote has been provided by Custom Building Approvals, Custom Building Approvals’s usual charges for the Services.
(p) If any Invoice is due but unpaid, Custom Building Approvals may withhold the provision of any Services until overdue amounts are paid in full.
(q) Custom Building Approvals may in its complete discretion apply any payment received from the Client to any amount owing by the Client to Custom Building Approvals.
(r) The Client is not entitled to retain any money owing to Custom Building Approvals regardless of any default or alleged default by Custom Building Approvals of these terms of trade, including (but not limited to) the supply of allegedly faulty provision of Services to an inadequate standard or a delay in the provision of Services. Nothing in this paragraph affects the Client’s rights for any alleged failure of a consumer guarantee under the ACL.
(s) The Client is to pay Custom Building Approvals on demand interest at the rate of 10% per year on all overdue amounts owed by the Client to Custom Building Approvals, calculated daily.
(t) All costs and expenses associated with collecting overdue amounts, including (but not limited to) legal fees and internal costs and expenses of Custom Building Approvals, are to be paid by the Client as a debt due and payable under these terms of trade.
(u) Where a refund is required, any funds will be returned only to the original payee and via the original payment method. In the event an Application is cancelled, the Client will be liable for any fees incurred in disengaging Custom Building Approvals and closing the file.
(v) Once Custom Building Approvals has been engaged, the Client will be responsible for any fees incurred in the event of cancellation or termination of the Application, including fees associated with the preparation and issuance of a Form 22 – Notice of Disengagement.
(w) The Client and Custom Building Approvals agree to comply with their obligations in relation to Goods and Services Tax (GST) under the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any other applicable legislation governing GST.
5. Additional Charges
(a) The Supplier may require the Client to pay Additional Charges in respect of Costs incurred by Custom Building Approvals as a result of reliance on inadequate or incorrect information or material provided by the Client or information or material supplied later than required by Custom Building Approvals in order for it to provide the Goods or Services within the specified time frame (if any).
(b) The imposition of Additional Charges may also occur as a result of:
(i) the receipt of additional documentation or completion of planning checks, where applicable;
(ii) where re-inspections are required;
(iii) where amended plans are submitted;
(iv) for any extension of time requests
(v) cancellation by the Client of an Application where cancellation results in Loss to Custom Building Approvals;
(vi) photocopying, courier, packing or handling charges not included in the Quote;
(vii) Government or council taxes or charges not included in the Quote; or
(viii) additional work required by the Client or any other occurrence which causes Custom Building Approvals to incur costs in respect of the Client’s Order additional to the quoted cost.
(b) The imposition of Additional Charges may also occur as a result of:
(i) the receipt of additional documentation or completion of planning checks, where applicable;
(ii) where re-inspections are required;
(iii) where amended plans are submitted;
(iv) for any extension of time requests
(v) cancellation by the Client of an Application where cancellation results in Loss to Custom Building Approvals;
(vi) photocopying, courier, packing or handling charges not included in the Quote;
(vii) Government or council taxes or charges not included in the Quote; or
(viii) additional work required by the Client or any other occurrence which causes Custom Building Approvals to incur costs in respect of the Client’s Order additional to the quoted cost.
6. GST
(a) Custom Building Approvals quoted prices are inclusive of GST.
(b) Unless the Client provides Custom Building Approvals with an authorised tax exempt certificate, GST of 10% will be added to all invoices.
(b) Unless the Client provides Custom Building Approvals with an authorised tax exempt certificate, GST of 10% will be added to all invoices.
7. Insurance
(a) Custom Building Approvals will maintain the following insurances during the term of the engagement:
(i) a public liability insurance policy to the value of $20 million for injury or damage caused to third parties by Custom Building Approvals, its employees or contractors during the provision of Services; and
(ii) any other insurance required to be effected by law including worker’s compensation insurance as prescribed by law for Custom Building Approvals and its employees and contractors.
(b) Custom Building Approvals will provide evidence of such insurances to the Client upon reasonable request.
(i) a public liability insurance policy to the value of $20 million for injury or damage caused to third parties by Custom Building Approvals, its employees or contractors during the provision of Services; and
(ii) any other insurance required to be effected by law including worker’s compensation insurance as prescribed by law for Custom Building Approvals and its employees and contractors.
(b) Custom Building Approvals will provide evidence of such insurances to the Client upon reasonable request.
8. Intellectual Property Rights
(a) The Client warrants that it owns all Intellectual Property Rights pertaining to its Quote for Services or has a licence to authorise Custom Building Approvals to reproduce or use all copyright works or other materials the subject of Intellectual Property Rights supplied by the Client to Custom Building Approvals for the purposes of the Quote. Further, the Client indemnifies and agrees to keep indemnified Custom Building Approvals against all Losses incurred by Custom Building Approvals in relation to or in any way directly or indirectly connected with any breach of any other Intellectual Property Rights in relation to any material supplied by the Client.
(b) Unless specifically agreed in writing between Custom Building Approvals and the Client, all Intellectual Property Rights in any works created by Custom Building Approvals on behalf of the Client vest in and remain the property of Custom Building Approvals.
(c) Subject to payment of all invoices due in respect of the Services, Custom Building Approvals grants to the Client a perpetual, non-exclusive licence to use the works created or produced by Custom Building Approval in connection with the provision of Services under these terms of trade for the purposes contemplated by the Quote.
(b) Unless specifically agreed in writing between Custom Building Approvals and the Client, all Intellectual Property Rights in any works created by Custom Building Approvals on behalf of the Client vest in and remain the property of Custom Building Approvals.
(c) Subject to payment of all invoices due in respect of the Services, Custom Building Approvals grants to the Client a perpetual, non-exclusive licence to use the works created or produced by Custom Building Approval in connection with the provision of Services under these terms of trade for the purposes contemplated by the Quote.
9. Agency and assignment
(a) The Client agrees that Custom Building Approvals may at any time appoint or engage an agent to perform an obligation of Custom Building Approvals arising out of or pursuant to these terms of trade.
(b) Custom Building Approvals has the right to assign and transfer to any person all or any of its title, estate, interest, benefit, rights, duties and obligations arising in, under or from these terms of trade provided that the assignee agrees to assume any duties and obligations of Custom Building Approvals owed to the Client under these terms of trade.
(c) The Client is not to assign, or purport to assign, any of its obligations or rights under these terms of trade without the prior written consent of Custom Building Approvals.
(b) Custom Building Approvals has the right to assign and transfer to any person all or any of its title, estate, interest, benefit, rights, duties and obligations arising in, under or from these terms of trade provided that the assignee agrees to assume any duties and obligations of Custom Building Approvals owed to the Client under these terms of trade.
(c) The Client is not to assign, or purport to assign, any of its obligations or rights under these terms of trade without the prior written consent of Custom Building Approvals.
10. Default by Client
(a) Each of the following occurrences constitutes an event of default:
(i) the Client breaches or is alleged to have breached these terms of trade for any reason (including, but not limited to, defaulting on any payment due under these terms of trade) and fails to remedy that breach within 14 days of being given notice by Custom Building Approvals to do so;
(ii) the Client, being a natural person, commits an act of bankruptcy;
(iii) the Client, being a corporation, is subject to:
(A) a petition being presented, an order being made or a meeting being called to consider a resolution for the Client to be wound up, deregistered or dissolved;
(B) a receiver, receiver and manager or an administrator under part 5.3A of the Corporations Act 2001 (Cth) being appointed to all or any part of the Client’s property and undertaking;
(C) the entering of a scheme of arrangement (other than for the purpose of restructuring); and
(D) any assignment for the benefit of creditors;
(iv) the Client purports to assign its rights under these terms of trade without Custom Building Approvals’s prior written consent; or
(v) the Client ceases or threatens to cease conduct of its business in the normal manner.
(b) Where an event of default occurs, except where payment in full has been received by Custom Building Approvals, Custom Building Approvals may:
(i) terminate these terms of trade;
(ii) terminate any or all Quotes and credit arrangements (if any) with the Client;
(iii) refuse to provide further Services;
(iv) retain (where applicable) all money paid by the Client on account of Services or otherwise.
(c) In addition to any action permitted to be taken by Custom Building Approvals under paragraph 10(b), on the occurrence of an event of default all invoices will become immediately due and payable.
(i) the Client breaches or is alleged to have breached these terms of trade for any reason (including, but not limited to, defaulting on any payment due under these terms of trade) and fails to remedy that breach within 14 days of being given notice by Custom Building Approvals to do so;
(ii) the Client, being a natural person, commits an act of bankruptcy;
(iii) the Client, being a corporation, is subject to:
(A) a petition being presented, an order being made or a meeting being called to consider a resolution for the Client to be wound up, deregistered or dissolved;
(B) a receiver, receiver and manager or an administrator under part 5.3A of the Corporations Act 2001 (Cth) being appointed to all or any part of the Client’s property and undertaking;
(C) the entering of a scheme of arrangement (other than for the purpose of restructuring); and
(D) any assignment for the benefit of creditors;
(iv) the Client purports to assign its rights under these terms of trade without Custom Building Approvals’s prior written consent; or
(v) the Client ceases or threatens to cease conduct of its business in the normal manner.
(b) Where an event of default occurs, except where payment in full has been received by Custom Building Approvals, Custom Building Approvals may:
(i) terminate these terms of trade;
(ii) terminate any or all Quotes and credit arrangements (if any) with the Client;
(iii) refuse to provide further Services;
(iv) retain (where applicable) all money paid by the Client on account of Services or otherwise.
(c) In addition to any action permitted to be taken by Custom Building Approvals under paragraph 10(b), on the occurrence of an event of default all invoices will become immediately due and payable.
11. Termination
In addition to the express rights of termination provided in these terms of trade, a party may terminate these terms of trade by giving 14 days written notice to the other party.
12. Exclusions and limitation of liability
(a) The Client expressly agrees that use of the Services is at the Client’s risk. To the full extent allowed by law, Custom Building Approvals’s liability for breach of any term implied into these terms of trade by any law is excluded.
(b) All information, specifications and samples provided by Custom Building Approvals in relation to the Services are approximations only and, subject to any consumer guarantees under the ACL, small deviations or slight variations from them which do not substantially affect the Client’s use of the Services will not entitle the Client to reject the Services or to make any claim in respect of them.
(c) The Client warrants that they are either the landowner or the authorised agent for the development approval for building works.
(d) The Supplier gives no warranty in relation to the Services provided or supplied. Under no circumstances is Custom Building Approvals or any of its suppliers liable or responsible in any way to the Client or any other person for any loss, damages, costs, expenses or other claims (including consequential damages and loss of profits or loss of revenues) as a result, direct or indirect of any defect, deficiency or discrepancy in the Services. This includes their form, content and timeliness of deliveries, failure of performance, error, omission, defect, including, without limitation, for and in relation to any of the following:
(i) any Services supplied to the Client;
(ii) any delay in supply of the Services; or
(iii) any failure to supply the Services.
(e) Any advice, recommendation, information, assistance or service given by Custom Building Approvals in relation to the Services or both, is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given. It is provided without any warranty or accuracy, appropriateness or reliability. The Supplier does not accept any liability or responsibility for any Loss suffered as a result of the Client’s reliance on such advice, recommendation, information, assistance or service.
(f) To the fullest extent permissible at law, Custom Building Approvals is not liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the provision of or failure to provide the Services, or otherwise arising out of the provision of the Services, whether based on terms of trade, negligence, strict liability or otherwise, even if Custom Building Approvals has been advised of the possibility of damages.
(g) The ACL may give to the Client certain consumer guarantees (if the Client is defined as a consumer in section 3 of the ACL), which cannot be restricted, limited or varied.
(b) All information, specifications and samples provided by Custom Building Approvals in relation to the Services are approximations only and, subject to any consumer guarantees under the ACL, small deviations or slight variations from them which do not substantially affect the Client’s use of the Services will not entitle the Client to reject the Services or to make any claim in respect of them.
(c) The Client warrants that they are either the landowner or the authorised agent for the development approval for building works.
(d) The Supplier gives no warranty in relation to the Services provided or supplied. Under no circumstances is Custom Building Approvals or any of its suppliers liable or responsible in any way to the Client or any other person for any loss, damages, costs, expenses or other claims (including consequential damages and loss of profits or loss of revenues) as a result, direct or indirect of any defect, deficiency or discrepancy in the Services. This includes their form, content and timeliness of deliveries, failure of performance, error, omission, defect, including, without limitation, for and in relation to any of the following:
(i) any Services supplied to the Client;
(ii) any delay in supply of the Services; or
(iii) any failure to supply the Services.
(e) Any advice, recommendation, information, assistance or service given by Custom Building Approvals in relation to the Services or both, is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given. It is provided without any warranty or accuracy, appropriateness or reliability. The Supplier does not accept any liability or responsibility for any Loss suffered as a result of the Client’s reliance on such advice, recommendation, information, assistance or service.
(f) To the fullest extent permissible at law, Custom Building Approvals is not liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the provision of or failure to provide the Services, or otherwise arising out of the provision of the Services, whether based on terms of trade, negligence, strict liability or otherwise, even if Custom Building Approvals has been advised of the possibility of damages.
(g) The ACL may give to the Client certain consumer guarantees (if the Client is defined as a consumer in section 3 of the ACL), which cannot be restricted, limited or varied.
13. Indemnity
(a) The Client indemnifies and keeps indemnified Custom Building Approvals, its servants and agents in respect of any claim or demand made or action commenced by any person (including, but not limited to, the Client) against Custom Building Approvals or, for which Custom Building Approvals is liable, in connection with any Loss arising from or incidental to the provision of Services, any Quote or the subject matter of these terms of trade.
(b) This includes, but is not limited to, any legal costs incurred by Custom Building Approvals in relation to meeting any claim or demand or any party or party legal costs for which Custom Building Approvals is liable in connection with any such claim or demand.
(c) This provision remains in force after the termination of these terms of trade.
(b) This includes, but is not limited to, any legal costs incurred by Custom Building Approvals in relation to meeting any claim or demand or any party or party legal costs for which Custom Building Approvals is liable in connection with any such claim or demand.
(c) This provision remains in force after the termination of these terms of trade.
14. Force majeure
(a) If circumstances beyond Custom Building Approvals’s control prevent or hinder its provision of the Services, Custom Building Approval is free from any obligation to provide the Services while those circumstances continue. The Supplier may elect to terminate this agreement or keep the agreement on foot until such circumstances have ceased.
(b) Circumstances beyond Custom Building Approvals’s control include, but are not limited to, unavailability of materials or components, strikes, lockouts, riots, natural disasters, fire, war, acts of God, government decrees, proclamations or orders, transport difficulties and failures or malfunctions of computers or other information technology systems.
(b) Circumstances beyond Custom Building Approvals’s control include, but are not limited to, unavailability of materials or components, strikes, lockouts, riots, natural disasters, fire, war, acts of God, government decrees, proclamations or orders, transport difficulties and failures or malfunctions of computers or other information technology systems.
15. Dispute resolution
(a) If a dispute arises between the Client and Custom Building Approvals, the following procedure applies:
(i) A party may give another party a notice of the dispute and the dispute must be dealt with in accordance with the procedure set out in this paragraph.
(ii) A party must not commence legal proceedings (except proceedings seeking interlocutory relief) in respect of a dispute unless the dispute has been referred for resolution in accordance with this paragraph.
(iii) A party must not oppose any application for a stay of any legal proceedings that may be issued in respect of a dispute pending the completion or termination of the procedure set out in this paragraph.
(b) If a dispute is notified, the dispute must immediately be referred to the parties’ respective senior management. Those representatives must endeavour to resolve the dispute as soon as possible and in any event within 14 Business Days (or other period as agreed).
(c) Unless otherwise agreed by the parties, any dispute that cannot be settled by negotiation between the parties or their representatives, the parties expressly agree to endeavour to settle the dispute by mediation administered by the Australian Commercial Disputes Centre (ACDC) before having recourse to arbitration or litigation. The mediation must be conducted in accordance with the ACDC Guidelines for Commercial Mediation (Guidelines) which operate at the time the matter is referred to ACDC. The Guidelines set out the procedures to be adopted, the process of selection of the mediator and the costs involved. The terms of the Guidelines are incorporated into these terms of trade. This paragraph survives termination of these terms of trade.
(d) Despite the existence of a dispute (including the referral of the dispute to mediation), each party must continue to perform its obligations under these terms of trade.
(e) The parties must hold confidential, unless otherwise required by law or at the direction of a court of competent jurisdiction, all information relating to the subject matter of the dispute that is disclosed during or for the purposes of dispute resolution. The parties acknowledge that the purpose of any exchange of information or documents or the making of any offer of settlement pursuant to this procedure is to attempt to settle the dispute between the parties. No party may use any information or documents obtained through the dispute resolution process for any purpose other than an attempt to settle the dispute between the parties.
(i) A party may give another party a notice of the dispute and the dispute must be dealt with in accordance with the procedure set out in this paragraph.
(ii) A party must not commence legal proceedings (except proceedings seeking interlocutory relief) in respect of a dispute unless the dispute has been referred for resolution in accordance with this paragraph.
(iii) A party must not oppose any application for a stay of any legal proceedings that may be issued in respect of a dispute pending the completion or termination of the procedure set out in this paragraph.
(b) If a dispute is notified, the dispute must immediately be referred to the parties’ respective senior management. Those representatives must endeavour to resolve the dispute as soon as possible and in any event within 14 Business Days (or other period as agreed).
(c) Unless otherwise agreed by the parties, any dispute that cannot be settled by negotiation between the parties or their representatives, the parties expressly agree to endeavour to settle the dispute by mediation administered by the Australian Commercial Disputes Centre (ACDC) before having recourse to arbitration or litigation. The mediation must be conducted in accordance with the ACDC Guidelines for Commercial Mediation (Guidelines) which operate at the time the matter is referred to ACDC. The Guidelines set out the procedures to be adopted, the process of selection of the mediator and the costs involved. The terms of the Guidelines are incorporated into these terms of trade. This paragraph survives termination of these terms of trade.
(d) Despite the existence of a dispute (including the referral of the dispute to mediation), each party must continue to perform its obligations under these terms of trade.
(e) The parties must hold confidential, unless otherwise required by law or at the direction of a court of competent jurisdiction, all information relating to the subject matter of the dispute that is disclosed during or for the purposes of dispute resolution. The parties acknowledge that the purpose of any exchange of information or documents or the making of any offer of settlement pursuant to this procedure is to attempt to settle the dispute between the parties. No party may use any information or documents obtained through the dispute resolution process for any purpose other than an attempt to settle the dispute between the parties.
16. Miscellaneous
(a) These terms of trade are governed by the laws of the state or territory where Custom Building Approvals registered office is situated and each party irrevocably submits to the non-exclusive jurisdiction of the courts of that state or territory.
(b) These terms of trade and any Quotes and written variations agreed to in writing by Custom Building Approvals represent the whole agreement between the parties relating to the subject matter of these terms.
(c) These terms of trade supersede all oral and written negotiations and communications by and on behalf of either of the parties.
(d) In entering into these terms of trade, the Client has not relied on any warranty, representation or statement, whether oral or written, made by Custom Building Approvals or any of its employees or agents relating to or in connection with the subject matter of these terms of trade.
(e) If any provision of these terms of trade at any time is or becomes void, voidable or unenforceable, the remaining provisions will continue to have full force and effect.
(f) A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.
(g) A notice or other communication required or permitted to be given by one party to another must be in writing to the address shown on a Quote (or as varied pursuant to this paragraph) and delivered personally, sent by pre-paid mail to the address of the addressee specified in the relevant Quote; or sent by email to the email address of the addressee specified in the relevant Quote with acknowledgement of delivery.
(h) A notice or other communication is taken to have been given (unless otherwise proved) if mailed, on the second Business Day after posting; or if sent by email before 4 pm one Business Day at the place of receipt, on the day it is sent and otherwise on the next Business Day at the place of receipt.
(i) A party may only change its postal or email address for service by giving notice of that change in writing to the other party.
(b) These terms of trade and any Quotes and written variations agreed to in writing by Custom Building Approvals represent the whole agreement between the parties relating to the subject matter of these terms.
(c) These terms of trade supersede all oral and written negotiations and communications by and on behalf of either of the parties.
(d) In entering into these terms of trade, the Client has not relied on any warranty, representation or statement, whether oral or written, made by Custom Building Approvals or any of its employees or agents relating to or in connection with the subject matter of these terms of trade.
(e) If any provision of these terms of trade at any time is or becomes void, voidable or unenforceable, the remaining provisions will continue to have full force and effect.
(f) A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.
(g) A notice or other communication required or permitted to be given by one party to another must be in writing to the address shown on a Quote (or as varied pursuant to this paragraph) and delivered personally, sent by pre-paid mail to the address of the addressee specified in the relevant Quote; or sent by email to the email address of the addressee specified in the relevant Quote with acknowledgement of delivery.
(h) A notice or other communication is taken to have been given (unless otherwise proved) if mailed, on the second Business Day after posting; or if sent by email before 4 pm one Business Day at the place of receipt, on the day it is sent and otherwise on the next Business Day at the place of receipt.
(i) A party may only change its postal or email address for service by giving notice of that change in writing to the other party.
Please note: Until this Engagement Agreement is accepted, Custom Building Approvals is not engaged under the meaning of the Building Act and no processing of any application will occur.