Client Assessor Engagement Agreement
The Client appoints the Assessor to provide the Services specified below, and the Assessor agrees to provide those Services, on the terms of this agreement, made up of the following Details and General Conditions ( Agreement ).
Services
Project review and feasibility
Design review for compliance with the current minimum energy performance requirements that are relevant to your project. If your quote includes BASIX a design review will be completed for the BASIX requirements. Feasibility of design and specifications.
Preliminary
Preliminary calculations in software simulations and/or in accordance with the elemental provisions of the design and specifications. Preliminary insulation and glazing recommendations to meet current minimum energy performance compliance. Preliminary review and recommendations for current NCC Whole of Home appliance selection to meet/exceed minimum compliance (if Whole of Home is a requirement for your project).
Review
Client approval to issue an endorsed energy report. Green Choice Consulting will request updated design documentation and specifications if required.
Finalisation
Certification and finalisation of documentation. Application of stamp to all relevant pages of design documentation. Provision of electronic copies of the energy report and stamped design documentation to support the CDC/building/development permit application.
Revised Specifications or Drawings
Should design documentation and/or specifications change once the Assessment has been finalised (Stage 4), all previously issued documentation will no longer be valid and must be revised based on amendments. New documentation must be issued, and the revised documentation stamped. Should design documentation and/or specifications change once work has begun, Green Choice Consulting will reserve the right to issue a new quote. Additional services may be provided as detailed in the quote referenced in the Project Scope.
Fees Payable to the Assessor for Services: (See clause 3, clause 7 and clause 8)
The client agrees to pay Green Choice Consulting all fees in accordance with the quote referenced in the Project Scope.
Exclusions
1. Green Choice Consulting will not make design changes to documentation. It is the client’s responsibility to apply the design changes recommended by Green Choice Consulting.
Consent to collect and share data
In accordance with clause 2.4 of the NatHERS Technical Note 2022, the Client acknowledges and agrees to the collection of Personal Information including their name, email address, phone number, ABN (where applicable), design documentation and the NatHERS assessment. This information may be disclosed to: A) The relevant NatHERS software provider; and B) The NatHERS Administrator and the Applicable Assessor Accrediting Organisation for the purposes of quality assurance, investigation and audits including consent for these organisations to contact the Client in relation to any findings relevant to the NatHERS assessment.
GENERAL CONDITIONS
1. The Scope of Agreement and Payment
1.1. The Assessor must provide the Services at the times and in the manner specified in the quote.
1.2. The Client must pay the Fees to the Assessor in the manner and at the time specified in the quote.
2. Assessor Obligations
2.1. The Assessor agrees to provide the Services with due care and skill and in accordance with all applicable laws.
2.2. The Assessor makes no guarantees that the compliance requirements will be less onerous than any third-party determinations.
2.3. If the Assessor becomes aware of any matter which will change, or which has changed the scope or timing of the Services then the Assessor will give notice to the Client of particulars of the change.
2.4. Prior to providing the Services the Assessor will inform and have the Client consent to the collection and use of Personal Information in connection with provision of the Services
2.5. The Assessor will use reasonable commercial endeavours to perform the Services: (a) in accordance with any timeframe specified in the Details or as agreed in writing between the parties; or (b) where no timeframe is specified, in a timely manner as would reasonably be expected of a professional provider of services the same as the Services.
3. Quote
3.1. The client acknowledges and agrees that any changes to the Project Scope due to changes within our outside of the control of the client or Green Choice Consulting then; (i) Any previously supplied quote will not be valid and Green Choice Consulting will provide a new quote for the revised scope. (ii) The client may be required to pay fees for changes to the scope; and (iii) Green Choice Consulting may at its discretion, modify or extend the delivery deadline for the proposed project as required by the changes.
4. Client Obligations
4.1. The Client agrees to provide to the Assessor in a timely manner any reasonable information, access to the premises, any building plans or any other relevant documentation that the Assessor may reasonably require in order to provide the Services.
4.2. If the Client becomes aware of any matter which will change, or which has changed the scope or timing of the Services then the Client will give notice to the Assessor of particulars of the change.
4.3. The Client acknowledges that if the Client does not consent to the collection and disclosure of Personal Information in accordance with clause 2.3 , that the Assessor will not be able to provide the Services.
5. Indemnity and Limitations of Liability and Warranties
5.1. Except for the conditions, warranties and guarantees described in clause 4.2 , the Assessor excludes all terms, conditions, warranties, and guarantees implied by custom, the general law or statute.
5.2. Any condition, warranty or guarantee that legislation applies to the supply of services under this Agreement is taken to be included in this Agreement, if that legislation renders void or prohibits contractual provisions which: (a) exclude, restrict or modify; or (b) which have the effect of excluding, restricting or modifying, the application of, exercise of a right conferred by, or any liability under, such condition, warranty or guarantee ( Non-excludable Guarantee ).
5.3. To the maximum extent permitted by law, the Assessor’s liability to the Client for any breach of a Non-excludable Guarantee is limited, at the Assessor’s option, to: (a) resupplying the relevant Services; or (b) paying the cost of resupplying the relevant Services.
5.4. The parties acknowledge and agree that, to the maximum extent permitted by law, each party excludes all liability to the other party, in tort, contract or otherwise for any consequential loss or damage (including but not limited to, lost revenue, business, profit, goodwill, opportunity, equipment or data) suffered by the other party in any way relating to this Agreement or the delivery of the Services, regardless of the basis of such liability and even if such loss or damage was reasonably foreseeable, arose naturally or was in the contemplation of the parties.
5.5. The Client must indemnify the Assessor and its personnel ( Indemnified ) from any loss, cost, damage and expense (including legal costs on a full indemnity basis and whether incurred by or awarded against an Indemnified) suffered or incurred by any of the Indemnified caused or contributed by: (a) a breach by the Client of this Agreement; (b) the negligent, unlawful, or wilfully wrong, act or omission of the Client in connection with this Agreement; and (c) any claim made or threatened by a third party arising out of or in connection with any negligent, unlawful, or wilfully wrong, act or omission of the Client and its personnel.
5.6. The Client’s liability to indemnify the Assessor will be reduced proportionately to the extent that any negligent act or omission of the Assessor caused or contributed to the relevant loss, cost, damage or expense.
6. TERMINATION
6.1. Either party may terminate this Agreement immediately by giving notice in writing to the other party ( Defaulting Party ) if the Defaulting Party: (a) fails to carry out any material provision of this Agreement, the failure is capable of being remedied, and the Defaulting Party does not remedy that failure within 14 days of receiving written notice from the other party specifying the failure and requiring it to be remedied; (b) fails to comply with any material obligation, undertaking or warranty under this Agreement and that failure is not, on any reasonable or economic basis, capable of remedy; or (c) is subject to an Insolvency Event. Either party may terminate this agreement for convenience by providing 7 days’ written notice to the other party. Upon termination of the agreement: (d) Green Choice Consulting will issue an updated invoice for all work already completed; and (e) The invoice must be paid in full within 14 days from the invoice issue date. (f) If the Client terminates this Agreement after signing but before any assessment work has commenced, Green Choice Consulting reserves the right to charge a fixed cancellation fee of $50 + GST . This fee is to recover the time and resources already expended in preparing a quotation, entering project details into internal systems, issuing forms, requesting information, and completing administrative tasks.
7. claims and payments
7.1. The Client must pay the Assessor the Fees for the Services.
7.2. The Assessor will submit a claim for payment to the Client at the times stated in the Details, or if nothing is stated, at times determined by the Assessor in its discretion. Each claim for payment must be in the form of a valid tax invoice with sufficient particulars to enable the Client calculate and verify the amount claimed ( Invoice ).
7.3. the Client must pay the Assessor the amount set out in an Invoice within the payment terms as specified on the Invoice, without any set-off, counterclaim or deduction.
7.4. If the client breaches the terms of this agreement the client must pay all outstanding invoices
7.5. If the Client fails to make payment in accordance with this clause and within the payment terms set out in an Invoice, a 15% financial charge will be added to the total amount shown on the outstanding invoice.
8. Late PAYMENT
8.1. If the client does not pay the amount outstanding on the issued invoice for this project on or before the due date: (a) Green Choice Consulting may cease providing all services. (b) Green Choice Consulting may withhold all documentation. (c) Green Choice Consulting may withdraw all NatHERS Certificates. This may void your building permit and deem your energy report non-compliant. (d) Green Choice Consulting may seek to recover the outstanding debt by referring it to a debt collection agency. The client agrees and acknowledges that Green Choice Consulting may refer and disclose all client personal information that is requested by the debt collection agency to facilitate the debt collection process. (e) The client must reimburse Green Choice Consulting all costs, including debt collection and legal costs, that is incurred by Green Choice Consulting in recovering the outstanding debt. (f) Green Choice Consulting may report the default to a credit reporting body. (g) If a debt collector obtains a court judgement against you or your business, the judgement will be recorded by Credit Reporting Agencies as a default on your credit report and may affect your ability to take out a loan or obtain a credit card until the default is removed (usually through payment of the debt). (h) Green Choice Consulting will not be liable for any loss, disadvantage, harm or damage that the client may suffer as a result of Green Choice Consulting exercising its rights under this agreement. (i) Invoices more than 28 days overdue will incur a late payment fee of $35.
9. INSURANCE
9.1. Each party must, at its own cost, hold the insurances specified in the Details and will provide a copy of its current certificates of currency at the reasonable request of the other party.
10. goods and services tax
10.1. Except where express provision is made to the contrary, and subject to this clause 8 , the consideration expressed to be payable under any other clause of this Agreement for any supply made under or in connection with this Agreement does not include GST.
10.2. To the extent that any supply made under or in connection with this Agreement is a taxable supply, the GST exclusive consideration otherwise payable for that supply is increased by an amount equal to that consideration multiplied by the rate at which GST is imposed in respect of the supply, and is payable at the same time.
10.3. Each party agrees to do all things, including providing tax invoices and other documentation, that may be necessary or desirable to enable or assist the other party to claim any input tax credit, adjustment or refund in relation to any amount of GST paid or payable in respect of any supply made under or in connection with this Agreement.
10.4. If a payment to a party under this Agreement is a payment by way of reimbursement or indemnity and is calculated by reference to the GST inclusive amount of a loss, cost or expense incurred by that party, then the payment is to be reduced by the amount of any input tax credit to which that party is entitled in respect of that loss, cost or expense before any adjustment is made for GST pursuant to clause 8.3 .
11. Intellectual Property Rights
11.1. A party must not infringe any third-party intellectual property rights or moral rights when performing its obligations under this Agreement and each party will take all necessary action to ensure that it does not cause the other party to infringe any other person’s rights (including moral rights) under the Copyright Act.
11.2. The Assessor is the sole and exclusive owner of all rights, title and interests to any and all intellectual property rights arising from the performance of this Agreement, including, but not limited to, any reports, copyrights, patent, know-how and otherwise, whether developed by the Assessor or the Client based on the Assessor’s intellectual property, and in accordance with clause 9 .
11.3. The intellectual property rights and moral rights in the Services and any documents produced by the Assessor vest in the Assessor on their creation. The Assessor grants to the Client a non-transferable, non-exclusive royalty free licence to use such information or documents for the sole purpose of the Project.
11.4. The Client will not use or make copies (physical or electronic) of such documents in connection with any work not included in this Agreement unless an express licence is granted by the Assessor.
11.5. The Client is prohibited from making unauthorised amendments to any documentation prepared by the Assessor.
11.6. If the Client is in breach of any obligation to make a payment to the Assessor under this Agreement, the Assessor may in its absolute discretion revoke the licence granted under clause 9.3 . Upon revocation of the licence the Client must immediately return to the Assessor all physical documents and/or destroy all electronic documents referred to in this clause 9 , and all copies of them.
12. Privacy and data protection
12.1. The Assessor agrees: (a) not perform any act or omission, which may result in a breach or potential breach of the Privacy Act 1988 (Cth) or any other applicable privacy laws, or with any guidelines, directions or policies issued by a governmental agency ( Privacy Obligations ); (b) not to do anything that would cause another party to be in breach of a Privacy Obligation; and (c) to use reasonable endeavours to assist the other party to comply with all Privacy Obligations.
12.2. The Assessor may use, and disclose your Personal Information, including your participation in and receipt of the Services, to third parties including: (a) third party software providers; and (b) NatHERS Assessor Accrediting Organisations for the purposes of quality assurance, investigation, and audit.
13. Assessor not an employee
13.1. The relationship between the Client and the Assessor is one of principal and independent contractor, and neither this Agreement nor anything expressed or implied in this Agreement constitutes any other relationship.
13.2. Without limiting clause 11.1 , the Assessor, its officers, employees, servants and agents and any other persons engaged by the Assessor in the performance of the Services will not by virtue of this Agreement or the performance of the Services thereby be or become in the service or employment of the Client for any purpose.
14. CONFIDENTIALITY
14.1. Each party to this Agreement undertakes to keep the Confidential Information disclosed by the other party secure and not to disclose it to any third party without the prior written consent of the party who provided the Confidential Information unless disclosure is required by law.
14.2. Each party to this Agreement will ensure that any Confidential Information will not be copied, supplied or reproduced for any purpose other than to complete the Project or otherwise as expressly provided for in this Agreement including clause 10.2
15. ASSIGNMENT
15.1. A party may not assign or transfer the whole or any part of its rights or obligations under this Agreement without the prior written consent of the other party. The other party must not unreasonably withhold such consent.
16. dispute resolution
16.1. If any dispute or difference arises between the parties in connection with this Agreement, a party will give the other party a written notice identifying and providing details of the dispute.
16.2. Within 7 days of service of the written notice of dispute, the Assessor and the Client will confer to resolve the dispute.
16.3. If the dispute is not resolved within 14 days of service of the written notice of dispute, then the dispute may be referred for mediation. The parties must pay the mediator’s remuneration in equal shares.
17. governing law
17.1. This Agreement will be governed by the laws in force in the state or territory of where the Services are provided, and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of that state or territory.
18. Force Majeure
18.1. If the Assessor is wholly or partially precluded from complying with its obligations under this Agreement by a Force Majeure Event affecting the Assessor, then the Assessor’s obligation to perform in accordance with this Agreement will be suspended for the duration of the delay arising out of the Force Majeure Event.
18.2. As soon as possible after the Assessor becomes aware of a Force Majeure Event affecting its ability to comply with this Agreement, the Assessor must, if it has not already done so, notify the Client of the Force Majeure Event and the extent to which the Assessor is unable to perform its obligations under this Agreement.
19. DEFINITIONS AND INTERPRETATION
19.1. Definitions (a) Additional Fees means the additional fees set out in the Details. (b) Agreement means this document, including the Details and General Conditions. (c) Confidential Information means all Records, information, knowledge, ideas, concepts, technology, marketing and commercial knowledge relating to or developed in connection with or in support of the Services, including this Agreement and including any information learned about the parties to the Agreement or in relation to the parties which by its very nature is confidential but excludes any information in the public domain. (d) Copyright Act means the Copyright Act 1968 (Cth). (e) Corporations Act means the Corporations Act 2001 (Cth). (f) Details means the details to which these General Conditions are attached. (g) Fees means the fees set out in the Details including the Additional Fees. (h) Force Majeure Event means anything outside the Assessor’s reasonable control, including fire, flood, drought, storm, lightning, act of God, peril of sea or air, explosion, sabotage, pandemic, accident, embargo, labour dispute or shortage, civil commotion, act of war and war. (i) GST means GST as defined in the GST Act as amended from time to time. Words used in clause 8 which have a particular meaning in the GST law (as defined in the GST Act) have the same meaning as those expressions in the GST law. (j) GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth). (k) Insolvency Event means: (i) being an insolvent under administration or insolvent (each as defined in the Corporations Act); or (ii) having a controller (as defined in the Corporations Act) appointed; or (iii) being in receivership, in receivership and management, in statutory management, in liquidation, in provisional liquidation, under administration, wound up, subject to any arrangement, assignment or composition, protected from creditors under any statute, dissolved (other than to carry out a reconstruction while solvent); or (iv) being otherwise unable to pay debts when they fall due; or (v) having something with the same or a similar effect happen under the laws of any jurisdiction. (l) NatHERS means Nationwide House Energy Rating Scheme. (m) Personal Information means all information about a person that is ‘personal information’ as defined in the Privacy Act 1988 (Cth) which is collected or held by any of the parties in connection with this Agreement. (n) Project Scope refers to the quote issued by Green Choice Consulting as identified by the quote number. (o) Records means all sketches, designs, reports, plans, drawings, specifications, samples, models, patterns, photographs, graphics, logos, artworks or other documents supplied by or created in the course of or in connection with the Assessor performing the Services or fulfilling the requirements of this Agreement. (p) Services means the services set out in the Details.
19.2. Interpretation In this Agreement headings are for convenience only and do not affect interpretation, and unless the context indicates a contrary intention: (a) the expression “person” includes an individual, the estate of an individual, a corporation, an authority, an association or a joint venture (whether incorporated or unincorporated); (b) a reference to any statute or to any statutory provision includes any statutory modification or re-enactment of it or any statutory provision substituted for it, and all ordinances, by-laws, regulations, rules and statutory instruments (however described) issued under it; (c) words importing the singular include the plural (and vice versa), and words indicating a gender include every other gender; (d) references to parties or clauses are references to parties and clauses to or of this Agreement, and a reference to this Agreement includes the Details to this Agreement; (e) other words starting with a capital letter have the meaning ascribed to those terms in the Details. (f) the documents comprising this Agreement must be read in the following order of precedence: (i) Details; then (ii) the clauses in these general conditions. (g) where a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning; (h) if the payment of any money or doing of any act falls on a day which is not a business day, that payment must be made or that act must be done on the next business day; (i) if a period of time is specified and dates from a given day or the day of an act or event, it is to be calculated exclusive of that day; and (j) words used in this Agreement which have a particular meaning in the GST law (as defined in the GST Act, and also including any applicable legislative determinations and Australian Taxation Office public rulings) have the same meaning
