Terms and Conditions

ANNEXURE A

TERMS AND CONDITIONS OF CONTRACT

1. EFFECT OF AGREEMENT

1.1 The Client has engaged the Principal Certifier (PC) or any of the Employees of the PC nominated in Clause 1.5 of this contract to perform certification work as per the terms and conditions set out in this agreement.

1.2 The Client is the owner as specified in the Application Form.

1.3 This agreement supersedes and overrides any other documents or oral representations upon which the parties may seek to rely to generate any legal effect or to imply any contractual obligation.

1.4 The PC is an individual certifier and is authorised to carry out the certification work which is the subject of this Agreement.

1.5 Employees of the PC who may provide services under this contract are as listed

1.6 This Agreement commences immediately upon the earlier of:

(a) the Client lodging the Application; or

(b) the Client paying the Fee.

1.7 The Client acknowledges that the PC is an individual accredited certifier. If the nominated PC resigns, is unavailable due to illness/leave, or a conflict of interest arises, the Client hereby consents to the transfer of the PC role to another appropriately accredited employee of the Company. The Company will notify the Client and the Council of any such transfer in accordance with the Act.

2. CONTRACT DOCUMENTATION

2.1 The contract is formalised on the date of commencement as defined in Clause 1.6.

2.2 Plans and specifications forming part of the approval will be endorsed with the related approval number.

3. INSURANCE DETAILS

3.1 The PC shall maintain insurance policies in accordance with the Building and Development Certifiers Act 2018.

3.2 Professional Indemnity Insurer: Ocean Underwriting Pty Ltd; Policy No: OUPI11003426; Period: 13/11/2025 – 13/11/2026.

3.3 Public & Products Liability Insurer: Ocean Underwriting Pty Ltd; Policy No: OUPI11003426; Period: 13/11/2025 – 13/11/2026.

4. OBLIGATIONS OF THE CERTIFIER

Issuing of Construction Certificates or Complying Development Certificates:

4.1 The PC shall perform all work that is necessary to comply with relevant statutory requirements and to facilitate the timely determination of an application.

4.2 The PC warrants that it will perform the services with the due care, skill, and diligence expected of a professional certifier.

4.3 The PC shall issue a Construction Certificate or Complying Development Certificate to the Client only:

a) Once the Client pays the PC any money owed (refer to Clause 5.1); and

b) Once design and construction of the Building complies with the Development Consent and the Regulations; and

c) The design is capable of complying with the BCA.

4.4 The PC shall provide copies of approval documentation to Council and any other relevant statutory authority within 2 days of determination.

4.5 The PC shall carry out as many inspections as the PC considers necessary in addition to those nominated in the Inspection Schedule.

4.6 The PC shall issue an Occupation Certificate when satisfied that:

a) A Development Consent has been complied with;

b) The Building Works are suitable for occupation in accordance with the BCA; and

c) Use of the Building does not pose any danger for the occupants.

4.7 If the Client requests an Occupation Certificate more than 12 months after the date of the Final Inspection, the PC reserves the right to charge an additional administrative fee to retrieve and re-assess the file before issuing the certificate.

5. OBLIGATIONS OF THE CLIENT

The Client shall:

5.1 Pay to the PC the agreed fees in two stages:

(a) a deposit of 40% of the total fee upon engagement (when the direction to proceed is given); and

(b) the remaining balance of 60% before the lodgement of the plans. The Client acknowledges that the 40% deposit is non-refundable in all circumstances.

5.2 Acknowledge that lodgement of an application confirms acceptance of these terms and conditions.

5.3 Provide full disclosure as to any other PC appointed prior to entering into this contract.

 5.4 Not engage any other PC after the PC appointed pursuant to this contract has been engaged.

5.5 Provide all relevant drawings, plans, statutory plans, and any other related information or documents at the request of the Certifier.

5.6 Provide all documents reasonably requested by the PC to fulfil its obligations.

5.7 Ensure that all documents and information provided by the Client are complete, current and accurate. The Client warrants the accuracy of these documents.

5.8 The Client indemnifies the PC from any costs, expenses, losses, damages, claims, liability, demands, suits and proceedings suffered or incurred by, or made against, the PC in respect of the PC’s reliance on the documents supplied by or on behalf of the Client.

5.9 Ensure that a Construction Certificate or Complying Development Certificate has been issued prior to the commencement of any works.

5.10 Provide the PC with all requested Pre-Commencement items including the full details and valid licence number of the Principal Contractor (Builder) and evidence of Home Owners Warranty insurance (or Owner Builder Permit) at least 48 hours prior to the commencement of any works. The Client acknowledges the PC cannot be appointed until these builder details are provided.

5.11 Ensure that all critical stage inspections are booked as specified in the Inspection Schedule. Failure to book a mandatory inspection may prevent the issue of an Occupation Certificate.

5.12 Ensure that the site is accessible for the PC to carry out its contractual obligations.

5.13 Use suitably qualified or experienced contractors for all aspects of the Building Work.

5.14 Attend any site meetings if requested by the PC.

5.15 Comply with any Written Direction Notices that the PC issues.

5.16 Apply for an Occupation Certificate within two years of the date of the construction approval.

6. VARIATIONS TO THIS AGREEMENT

6.1 The PC may vary this agreement and increase the contract price if:

a) The Building Works do not commence within 60 days of execution;

b) The Client or Builder causes a delay of more than 21 days;

c) Any part of the Building Works are re-designed by the Client;

d) The PC determines that additional Certificates are required;

e) The PC is required to undertake more inspections than nominated in the fee agreement;

f) The PC is required to investigate non-compliances or issue Written Direction Notices.

g) The Occupation Certificate is not applied for within 24 months of the date of the Construction Approval.                

6.2 The PC reserves the right to charge the Client to investigate non-compliances at the hourly rate specified in the Fee Schedule plus GST.

6.3 Notice must be given to the Client in writing when the PC becomes aware that a variation will occur.

7. TERMINATION OF AGREEMENT

7.1 The PC may terminate this contract if:

a) The Client fails to pay any money owing to the PC after 7 days of that money becoming payable;

b) The Client becomes insolvent or bankrupt;

c) The Client breaches the contract in any respect;

d) Building Works commence without a valid Construction Certificate or CDC.

7.2 The PC may terminate this contract by sending a written Notice of Termination to the Client.

7.3 If the PC terminates the contract, the PC is entitled to payment of Termination Money (as defined in Clause 12).

7.4 Unless the Client disputes the Notice of Termination, the Client must pay all Termination Money to the PC within 14 days.

7.5 The Client may NOT terminate this Agreement unless the PC has committed a material breach of its statutory or contractual obligations and has failed to remedy that breach within 21 days of receiving written notice from the Client detailing the breach. The Client acknowledges that termination for convenience (terminating without valid cause) is not permitted.

8. DISPUTE RESOLUTION

8.1 If a dispute arises, the parties must first attempt to resolve it by holding a meeting between senior representatives within 14 days of a written notice of dispute.

8.2 If the dispute is not resolved, it must be referred to mediation appointed by the AAC.

8.3 Both parties will remunerate the mediator on a 50/50 basis.

8.4 If mediation fails, either party may take action to resolve the dispute in a court of competent jurisdiction.

9. LIMITATION OF LIABILITY

9.1 To the extent permitted by law, the PC’s liability to the Client is limited to five times (5x) the value of the total Fee paid by the Client to the PC under this Agreement.

9.2 The PC’s liability is reduced to the extent caused or contributed to by any wilful or negligent act or omission by the Client.

9.3 Neither party is liable to the other for any economic or indirect or consequential losses and damages, including loss of profit, revenue, or opportunity.

9.4 The PC does not accept liability for losses associated with the inability to issue an Occupation Certificate due to unapproved works, missed inspections, or non-compliance.

10. MISCELLANEOUS

10.1 If an Occupation Certificate is not issued for any reason, the PC’s responsibilities under the Contract cease forthwith.

10.2 Copyright Licence: The Client grants the PC a non-exclusive, royalty-free licence to use, reproduce, and adapt all plans and documents provided for the purpose of performing obligations under this Agreement and for statutory lodgement.

10.3 The Applicant indemnifies all persons using the application against any claim or action in respect of breach of copyright.

10.4 If the Contract is terminated or ends for any reason (including the insolvency or disappearance of the Client), the PC may rely on this Agreement as evidence that its responsibilities ceased on that date for the purposes of any statutory limitation period (currently 10 years) under the Environmental Planning and Assessment Act 1979.

11. GENERAL LEGAL PROVISIONS

11.1 The laws of New South Wales, Australia, excluding its conflicts of law rules, shall govern this Terms and Your use of the Service.

11.2 If any provision of these Terms is held to be unenforceable or invalid, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.

11.3 Except as provided herein, the failure to exercise a right or to require performance of an obligation under this Terms shall not affect a party’s ability to exercise such right or require such performance at any time thereafter nor shall be the waiver of a breach constitute a waiver of any subsequent breach.

11.4 We reserve the right, at Our sole discretion, to modify or replace these Terms at any time for future contracts. If a revision is material We will make reasonable efforts to provide at least 30 days notice prior to any new terms taking effect.

12. COMPLIANCE FUNCTIONS

12.1 The PC must take any steps considered appropriate to address any non-compliances with the development consent.