PART 5: TERMS & CONDITIONS OF CONSTRUCTION ENGAGEMENT AGREEMENT

This Agreement is made on the date set out in Item 1.4 of Part 1 of this Agreement between the parties named in Items 1.1 and 1.3 of Part 1.

Recitals

A. The Landscape Builder conducts the Business.

B. The Client engages the Landscape Builder to perform the Construction Works for their Landscape Project on and subject to the following terms and conditions.

Operative Part

1. Interpretation

1.1 Definitions of Terms In this Agreement
In this Agreement:

(a) Terms that are defined in Part 1 – Part 4 have the same meaning given to them in Part 1 – Part 4; and

(b) unless the context or subject otherwise requires, the meanings of terms used in this Agreement are set out below.

Additional Works means any works or services that may be required as a result of a Variation under clause 4.2, including (but not limited to) Consultancy and additional or revised Documentation Drawings. All Additional Works are processed and paid in accordance with clause 4.2 of this Agreement.

Agreement means this agreement between the Landscape Builder and the Client.

Builders Registration Number means the licence or registration number granted to Paddy Milne Pty Ltd by The Victorian Builder Agency (VBA).

Claim means any cause of action, allegation, claim, demand, debt, liability, suit or proceeding of any nature howsoever arising and whether present or future, fixed or unascertained, actual or contingent, or at law (including negligence), in equity, under statute or otherwise.

Client means the person, partnership or corporation stated in Item 1.3 of Part 1 of this Agreement.

Client Information means all documents (including property documents and information, client brief responses, additional sketches, photographs, drawings, plans or concepts) supplied by the Client to the Landscape Builder upon which the Landscape Builder is to base the Documentation Drawings and/or Construction Works.

Consultancy means any time the Landscape Builder provides professional advisory services via phone, email or in person to the Client, Nominated Consultants or any other stakeholders in connection with the Landscape Project. Any Consultancy that arises as a result of a Variation under clause 4.2 forms part of Additional Works and is processed in accordance with clause 4.2 and 4.3 of this Agreement, and your Project Documentation Engagement Agreement which remains active for the duration of your Construction Works.

Construction Quote means the itemised costings provided with this Agreement for the Construction Works forming part of the Landscape Project.

Construction Works means the landscape construction works to be carried out by the Landscape Builder at the Property, as described and specified in the Documentation Drawings and priced in the Construction Quote (which together form the agreed scope of the Landscape Project).

Copyright means all rights in respect of the Documents arising under the Copyright Act.

Copyright Act means the Copyright Act 1968 (Cth), as amended from time to time.

Corporations Act means the Corporations Act 2001 (Cth), as amended from time to time.

Documents means all works (within the meaning of the Copyright Act) created by the Landscape Builder in connection with the Landscape Project, including (without limitation) all concept designs, sketches, plans, drawings, drafts, revisions, specifications, schedules, calculations, reports, and any other documentation (whether in hard copy or electronic form).

Documentation Drawings means the final set of detailed construction drawings and specifications produced by the Landscape Builder that fully describe the Landscape Project; inclusive of the Construction Works to be carried out under this Agreement, as listed in the Construction Quote or subsequently issued for construction and marked or described as “Documentation Drawings”.

Emergency Works means works urgently required to eliminate or reduce an immediate risk of death, serious injury, or significant property damage at the site of the Landscape Project, including (without limitation):

(a) making safe or repairing damaged services (such as water, gas, or electricity);

(b) securing, removing, or supporting structures, trees, or vegetation that have become structurally unstable and pose an imminent danger; and

ETA means Electronic Transactions (Victoria) Act 2000 (Vic).

Excluded Works means items and works that are not included in the scope of the Construction Works or Landscape Project, as specified in the Construction Quote.
Fee means the amount payable by the Client to the Landscape Builder set out in Part 2 and clauses 4.1, 4.2, 4.3 and 4.4 as adjusted in accordance with this Agreement.
Governmental Agency means:

(a) a body corporate or an unincorporated body established or constituted for a public purpose by Commonwealth or State legislation, or an instrument made under that legislation;

(b) a body established by a Minister of a Federal, State or Territory government, including departments; or

Insolvency Event means, in relation to a Party (the “Defaulting Party”):

(a) where the Defaulting Party is a body corporate:

(i) the Defaulting Party is presumed insolvent or is insolvent under s 95A of the Corporations Act or is otherwise unable to pay its debts as and when they fall due;

(ii) the Defaulting Party suspends or threatens to suspend payment of its debts generally, or commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness due to actual or anticipated financial difficulties;

(iii) the Defaulting party becomes an externally administered body corporate (within the meaning of the Corporations Act)

(iv) any step is taken by any person to make the Defaulting party an externally administered body corporate (but not where the step consists of making an application to a court and the application is withdrawn, dismissed or stayed within 14 days);

(v) a controller (as defined in section 9 of the Corporations Act) is appointed to any of the property of the Defaulting Party, or any step is taken by any person for the appointment of a controller (but not where the steps taken are reversed or abandoned within 14 days);

(vi) the Defaulting Party is taken under section 459F of the Corporations Act to have failed to comply with a statutory demand; or

(vii) any analogous event occurs under the laws of any applicable jurisdiction; or

(b) where the Defaulting Party is a natural person:

(i) the Defaulting Party authorizes a registered trustee or solicitor to call a meeting of his or her creditors or proposes or enters into a deed of assignment or deed of arrangement or a composition with any of his or her creditors;

(ii) a person holding a security interest in assets of the Defaulting Party enters into possession of, or takes control of, any of those assets or takes any steps to do so; or

(iii) the Defaulting Party commits an act of bankruptcy under the Bankruptcy Act 1966 (Cth).

Intellectual Property Rights means all present and future rights conferred by statute, common law or equity in or in relation to copyright, trademarks, designs, patents, inventions and other results of intellectual activity in any field whether or not registrable, registered or patentable.

Landscape Builder means the person or persons representing The Scape Artist, as stated in Item 1.1 of Part 1.

Landscape Builder Sub-contractors means any contractors, subcontractors, consultants or service providers engaged by the Landscape Builder to undertake any part of the Construction Works or services under this Agreement. Landscape Builder Sub-contractors are the responsibility of the Landscape Builder.

Landscape Project means the landscape design and construction project developed by the Landscape Builder for the Client, as detailed in the Documentation Drawings and priced in the Construction Quote accepted by the Client.

Legislation means:

(a) acts, ordinances, regulations, by-laws, orders, awards and proclamations of a Federal, State or Territory government;

(b) authorisations by a Governmental Agency or any other agencies or authorities which have the force of law; and

Located Services means underground services identified and located by a professional services locator.

Nominated Consultants means the contractors, subcontractors, consultants or service providers engaged (or to be engaged) directly by the Client in relation to the Landscape Project or any part of the Construction Works. All Nominated Consultants are to be listed in accordance with Part 4 of this Agreement, and their engagement is governed by clause 3.2.

Party means each party named in Item 1.1 and 1.3 of Part 1, and parties means all of them.

Project Documentation Services Engagement Agreement means the agreement signed by the Client for the provision of Documentation Drawings for the Client’s Landscape Project.

Project Site/Property means the property at which the Construction Works are to be completed, as identified under Item 1.3 of Part 1 of this Agreement.

Remediation Works means works required to repair Construction Work damaged by a weather event.

Schedule of Works means the Landscape Builders queue of Construction Works projects.

TSA means The Scape Artist - Landscape Design, Construction and Garden Maintenance.

Unexpected Event means any event or circumstance beyond a Party’s reasonable control that it could not reasonably have foreseen, prevented, or overcome (by taking steps to mitigate its effects), including:

(a) acts of god (such as storms, floods, earthquakes or other natural disasters);

(b) War, invasion, act of foreign enemies, hostilities (whether war is declared or not), acts of terrorism, riot, civil commotion, or revolution;

(d) Strikes, lockouts, or other industrial disputes (but only if not involving affected Party’s own employees, subcontractors or suppliers);

(e) Epidemic, pandemic, or public health emergency declared by a Governmental Agency;

(f) Fire, explosion or accidental loss (but not if caused by the affected Party);

(g) Power failure, internet outage, cyber-attach, or computer virus (but only if not attributable to the affected Party’s systems or negligence); or

(h) Any other event or circumstance of a similar nature to those listed above.

An Unexpected Event does not include:

(a) Any event or circumstance to the extent caused or contributed to by the affected Party (or its employees, agents or Nominated Consultants); or

(b) Lack of funds or financial difficulties of the affected Party.

Variation(s) means works additional to the Construction Works as outlined in clause 4.2

Variation Request means works additional to the Construction Works as requested by the client.

Wrongful Conduct means any act or omission of a party which is:

(a) negligent, deceitful or otherwise tortious;

(b) misleading or deceptive or likely to mislead or deceive; unconscionable;

(c) in breach of its obligations or warranties under this Agreement or contrary to any representation made in this Agreement; or

(d) in breach of any applicable law regulating the rights, liabilities and remedies of persons.

2. Nature and Scope of Agreement

2.1 Nature of Agreement

(a) The Landscape Builder's engagement under this Agreement commences on the date stated in Item 1.4 of Part 1 and concludes on the earlier of:

(i) Payment of the final tax invoice issued upon completion of the Construction Works; or

(ii) The date of termination under clause 8.

(b) The Landscape Builder shall perform the Construction Works for the Client in accordance with this Agreement.

2.2 Construction Works

(a) The Landscape Builder shall undertake Construction Works and any other works relating to the Landscape Project in a proper and workmanlike manner using reasonable care and skill.

(b) The Client must ensure that all requests, decisions and instructions required by the Landscape Builder from the Client are supplied accurately and within a reasonable time so as not to delay the Construction Works.

(c) Prior to the Landscape Builder commencing Construction Works at the Property, the Client must, to the best of its ability, remove or minimize any hazards at the Property. Where a hazard cannot be addressed, the Client must inform the Landscape Builder in writing prior to the Landscape Builder’s attendance on site. Hazards may include (but are not limited to) unrestrained animals, hazardous operations on site, or hazardous site conditions due to weather, building works or other phenomena. Any such hazards will be recorded in the ‘Client Agreement to Manage Risk’ form provided by the Landscape Builder to the Client on site.

2.3 Scope of Works

(a) The Construction Quote provides costings for only the Construction Works expressly outlined in it. Any works listed as Excluded Works, Emergency Works, or any changes or additions requested by the Client constitute Variations under clause 4.2.

(b) The Landscape Builder will engage a professional service locator to locate underground service to the best of their ability (Located Services). The Landscape Builder accepts liability for repair costs to Located Services that have been documented by the service locater. The Landscape Builder accepts no liability for damage to unknown services or services that cannot be located, except to the extent required by law.

(c) To the extent permitted by law, the Landscape Builder is not liable for any loss, damage, defects, delays, or other consequences arising directly or indirectly from work performed Nominated Consultants in accordance with clause 3.2.

(d) Where the presence of rock, debris or tree roots encountered during excavation extends the excavation time outside the quoted excavation costs included in the Construction Quote, additional excavation time will be processed as a Variation under clause 4.2.

(e) Any increase in supplier material costs after the date of this Agreement may be passed on to the Client at the completion of the Construction Works as a Variation under clause 4.2.

(f) When an area is made good and subsequently damaged by a weather event, remediation works will be carried out as a Variation under clause 4.2.

2.4 Appointment as Administrator

Where the Construction Works include the Landscape Builder acting in the role of Administrator, the Landscape Builder shall act at all times as the agent of the Client and not as an independent certifier or assessor.

2.5 Authority to Act as Agent

The Client expressly authorises the Landscape Builder to act on behalf of the Client for the purpose of making any application, appeal or referral as required under any applicable Legislation or by a Governmental Agency that affects the approval process or the scope of the Construction Works.

3 Engagement of Third Parties

3.1 Landscape Builder Sub-Contractors

The Landscape Builder may engage Landscape Builder Sub-Contractors to undertake elements of the Construction Works. Landscape Builder Sub-Contractors are the responsibility of the Landscape Builder.

3.2 Nominated Consultants

(a) The Client may engage Nominated Consultants in connection with the Landscape Project. The Client shall be responsible for all payments to Consultants engaged directly by the Client;

(b) Where the Landscape Builder provides a contact to the Client for a consultant, the Landscape Builder does not warrant or make any representation to the Client:

(i) that any consultant are appropriate or suitable for the Construction Works; or

(ii) that the scope of the services to be provided by that consultant is appropriate or suitable; or

(iii) the accuracy or quality of that consultants’ services.

(c) The Landscape Builder shall have no liability to the Client in contract, tort, under statute or otherwise arising out of or in connection with the Clients’ direct engagement of any Nominated Consultants connected to the Landscape Project.

(d) The Client shall not make any demand on the Landscape Builder or commence any legal proceedings against the Landscape Builder arising out of or in connection with any services supplied by a Nominated Consultant.

(e) The Client is responsible for ensuring that Nominated Consultants do not interfere with or impede the Construction Works of the Landscape Builder. The Client is liable for any damages caused by Nominated Consultants to the Construction Works or the Landscape Builder’s equipment. Where the Nominated Consultants create a need for the Landscape Builder to pause works, the Client will be liable to pay a reset fee as outlined in clause 4.3.

3.3 Engagement of Nominated Consultants

If a Variation requires the Client to engage a new Nominated Consultant, the Landscape Builder will advise the Client and the Client will be responsible for all associated costs and risks as outlined in clause 3.2.

4 Price and Payment

4.1 Payment of Fees

(a) The Client must pay all fees outlined in the Construction Quote on the basis specified in Item 2.2 of Part 2. Variation and Reset Fees are also payable under this clause 4.

(b) Overdue invoices incur late payment fees at 2.5% of the outstanding amount, calculated and added fortnightly. The first late fee is invoiced 28 days after the initial invoice.

(c) If the Client fails to pay the Fee in accordance with this Agreement, the Landscape Builder may (after written notice of default is provided to the Client):

(i) suspend engagement in the Construction Works until outstanding Fees are paid; or

(ii) terminate this Agreement in accordance with clause 8.

b) The Client indemnifies the Landscape Builder against all costs, losses and damages arising from non-payment, including legal costs of recovery.

4.2 Variation(s)

(a) A variation to the Landscape Project includes:

(i) any changes or additions that deviate from the Construction Quote as requested by the Client; or

(ii) works carried out by the Landscape Builder, at the request of the Client, that are outlined in the Construction Quote as Excluded Works in the Construction Quote; or

(iii) excavation works beyond the hours allocated within the Construction Quote due to the presence of rocks, debris or tree roots encountered during excavation works; or

(iv) increases in supplier material costs after the date of this Agreement; or

(v) remediation works carried out to make good Construction Works damaged by a weather event; or

(vi) works carried out by the Landscape Builder as Emergency Works.

(b) Variations to the Construction Quote as listed in this clause 4.2 point (a) may be requested by the Client or the Landscape Builder either verbally or in writing (Variation Request). The Landscape Builder will inform the Client if any works constitute a Variation and therefore incur an additional fee.

(i) Any changes to physical Construction Works (including labour, materials, and on-site works) will be priced, approved and processed as a Variation under this Agreement and in accordance with clause 4.2; and

(ii) Any amendments to the Documentation Drawings and any additional Consultancy required as a result will be treated as Additional Works and processed in accordance with the Project Documentation Services Engagement Agreement, which remains active for the duration of the construction works.

For the avoidance of doubt, Variations under this Agreement relate only to the Construction Works. Any required changes to Documentation Drawings or Consultancy services will be handled separately under the Project Documentation Services Engagement Agreement.

(d) Where a Variation is made the following charges will apply:

(i) Hourly rates: Labour rates incurred by the Landscape Builder (including all employees) are charged at $88+ GST/hr invoiced fortnightly. Sub-contractors are charged out according to individual sub-contractor rates. The Landscape Builder shall keep accurate time records to substantiate the Fee claimed on an hourly time charge basis;

(ii) Material Costs: Will be requoted by the Landscape Builder following a Variation Request. The Client must grant approval of the Variation and material costs and will be issued with an invoice for payment;

(iii) Emergency Works: Any monies paid by the Landscape Builder for Emergency Works in respect of the Landscape Project will be reimbursed by the Client plus a 10% surcharge for administrative costs.

(e) Where the Landscape Builder assesses a need to conduct Emergency Works they will:

(i) Act to engage any services deemed necessary to ensure the safety of all personnel at the site of the Landscape Project; and

(ii) Where possible make all attempts to contact the Client to inform them of the required Emergency Works as soon as practicably possible.

(f) Variations can add significant cost to a Landscape Project. It is the Clients responsibility to inform the Landscape Builder of any concern or inability to fund the Variation. Should the Client raise these concerns the Landscape Builder may, at the Landscape Builders discretion:

(i) Work with the Client to expediate the Construction Works with an altered scope to meet their budget; or

(ii) Determine that it is no longer feasible for the Landscape Builder to continue to provide services to the Client and proceed to terminate the Agreement by notice in writing to the other party in accordance with clause 8.

(g) Any fees payable to the Landscape Builder following a Variation will be payable to the Landscape Builder in accordance with clause 4.1.

4.3 Reset Fees

(a) Once the Landscape Project is scheduled and the start date for the Landscape Project is confirmed, the Client must ensure the Property is accessible, prepared and free from competing trades, activities or other interruptions that could delay or disrupt the Construction Works.

(b) If a delay or interruption is caused by the Client (including by Client Nominated Contractors or failure to provide access) requires the Landscape Builder to demobilise, reschedule or restart Construction Works, the Client must pay a reasonable reset fee (currently $704 plus GST) before the Landscape Builder returns to the Property (Reset Fee). The Landscape Builder will adjust the Schedule of Works at their convenience.

(c) The Reset Fee covers the Landscape Builder’s reasonable costs for making any necessary adjustments as a result of a delay or disruption to the Construction Works and will be issued and processed in accordance with clause 4.1.

4.4 Changes in Legislation

If a change in Legislation necessitates a change to the Construction Works, the difference shall be added to or deducted from the Landscape Builder's Fee in accordance with clause 4.2.

5 Intellectual Property Rights and Licencing

5.1 Moral Rights, Copyright and Clients License to use the Documents

(a) The Client must not infringe any Intellectual Property Rights when supplying Client Information.

(b) The Landscape Builder must not infringe any Intellectual Property Rights when supplying Construction Services under this Agreement.

(c) Each party shall 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.

(d) Copyright in the Documents prepared by the Landscape Builder in accordance with this Agreement, is owned by the Landscape Builder and reproduction in whole or in part of the Documents without the permission of the Landscape Builder will constitute an infringement of copyright in accordance with the provisions of the Copyright Act.

5.2 Unauthorised Use of Landscape Builder's Builder Registration Number

(a) The Client shall not be permitted to use the Landscape Builder's Builders Registration Number (Registration Number) for any reason whatsoever without the express written consent of the Landscape Builder which may be withheld at the Landscape Builder’s discretion.

(b) Consent for the Client to use the Landscape Builder’s Registration Number will only be considered upon the Landscape Builder’s receipt of a notice describing the exact purpose for which the Landscape Builder's Registration Number is to be used.

(c) The Client shall not be entitled to use the Documents to which the Landscape Builder's Registration Number has been affixed without obtaining the express written consent of the Landscape Builder in accordance with clause 5.2(a) and 5.2(b).

6 Risk, Liability and Insurance

6.1 Indemnities and Limitations of Liability

(a) Where the Client supplies Client Information to the Landscape Builder to use in connection with the Construction Works and Landscape Project, the Client shall indemnify and keep indemnified the Landscape Builder and its officers, employees, subcontractors and agents (collectively, those indemnified) at all times against:

(i) Any actions, proceedings, claims or demands; and

(ii) All liabilities, costs, losses (including loss of profit), damages and expenses, which may be brought or made against those indemnified, or which those indemnified may suffer, incur, or become liable to pay, arising directly or indirectly from any allegation or claim by a third party that the use by those indemnified of the Client Information in performing the Works infringes any patent, registered design, trademark, copyright, moral rights, or any other intellectual property or proprietary right of that third party.

(b) The Client indemnifies the Landscape Builder and its officers, employees and agents (those indemnified) from and against any:

(i) loss or liability incurred by those indemnified;

(ii) loss of or damage to property of those indemnified; or

(iii) loss or expense incurred by those indemnified in dealing with any Claim against it including legal costs and expenses on a party/party basis and the cost of time spent, resources used or disbursements paid by those indemnified, arising from any Wrongful Conduct by the Client in connection with this Agreement.

(c) The Client's liability to indemnify those indemnified under clauses 6.1(a) and 6.1(b) will be reduced proportionately to the extent that any Wrongful Conduct of those indemnified caused or contributed to the relevant liability, loss, damage, or expense.

(d) The indemnities contained in this clause 6:

(i) are subject to and are not intended to limit the operation of or contract out of any law with respect to proportionate liability;

(ii) do not extend to that part of any loss or damage that arises from a separate causative event; and

(iii) do not require the Client to indemnify those indemnified in an amount which would exceed any limitation of liability contained in this Agreement.

(e) The right of a Party to be indemnified under this clause:

(i) is in addition to, and not exclusive of, any other right, power or remedy provided by law; and

(ii) does not entitle the party to be compensated in excess of the amount of the relevant liability, loss, damage, or expense.

(f) The Client agrees that the Landscape Builder will be taken to be acting as agent or trustee for and on behalf of those indemnified. The Landscape Builder shall have no liability to the Client for or in respect of any indirect or consequential losses (including without limitation loss of actual or anticipated profit or revenue, business interruption, delay costs, financing costs, holding costs and loss of opportunity), even if such loss or damage was reasonably foreseeable, arose naturally or was in the contemplation of the parties.

(g) The Landscape Builder's total aggregate liability to the Client arising out of or in connection with the Construction Works whether under the law of contract, in tort, (including negligence), in equity, under statute or otherwise, is limited to the Fee. The limit of liability provided for in this clause does not apply to liability for wilful misconduct or fraudulent or criminal acts or omissions.

(h) To the extent of the Landscape Builder has any liability to the Client, the Client must give notice of any Claim it may have against the Landscape Builder within two years from the date the Landscape Builder's engagement under this Agreement concludes in accordance with clause 2.1(a). The Client shall not be entitled to commence any action or bring any Claim whatsoever against the Landscape Builder after that date, unless the Client issues legal proceedings against the Landscape Builder before that date.

(i) If, and to the extent that, any of this clause 6.1 is void as a result of section 64 of the Competition and Consumer Act 2010 (Cth) then the Landscape Builder's liability for a breach of a condition or warranty is limited to:

(i) the supplying of the relevant Construction Works again; or

(ii) the payment of the cost of having the Construction Works supplied again.

6.2 Unexpected Events

(a) If an Unexpected Event affecting a Party precludes that Party (affected Party) either partially or wholly from complying with its obligations under this Agreement, then as soon as reasonably practical, the affected Party must:

(i) notify the other party of the Unexpected Event, including:

A. how it is affecting the affected Party’s performance (to the best of that Party's knowledge);

B. the anticipated period of delay;

C. what the affected Party intends to do to either mitigate or remove the effect of the delay if possible.

D. take all reasonable steps available to either mitigate or remove the Unexpected Event and its effect.

(b) Should the unexpected event qualify as an Unexpected Event under this Agreement, the affected Party shall be entitled to a suspension of its obligations under this Agreement for the period and to the extent that the affected Party is impacted by the Unexpected Event.

6.3 Softscape Guarantee

All care is taken with landscape preparations to ensure that lawns and plantings are provided the best opportunity to establish and thrive. The Client will be offered a hand-over session to cover irrigation instructions and general care and maintenance tips.

The Landscape Builder offers a softscape guarantee of plants and lawn for up to 12 months under the following conditions:

(a) The Client has an irrigation system installed by the Landscape Builder as part of the landscape works; and

(b) The Client agrees to a minimum maintenance schedule of once per month for a period of 3, 6, 9 or 12 months (the duration of the guarantee will be equal to sign-up period); and

(c) The required number of hours per month will be determined by the Landscape Builder and set at the time of sign-up – approximately 3hrs small, 6hrs medium, 9hrs large. Charge out rates for maintenance are set at $73.20 per hour +GST.

The Landscape Builder will not be liable for any replacement of plants or lawn if any of the following occurs during the maintenance period:

(a) The Client makes adjustment to the irrigation system against the advice and/or settings set by the Landscape Builder; or

(b) The Client cancels the scheduled maintenance agreement or any scheduled maintenance sessions; or

(c) The landscape is subjected to an extreme weather event, including but not limited to hail storm, snow, severe frost or heat conditions, flooding; or

(d) The lawn or plants are physically damaged by animals, the client and/or persons other than employees of the Landscape Builder. This includes any incidents of theft or vandalism; or

(e) The plants that have failed are short lived plants that have completed their life-cycle.

The Client may request higher frequency visits to maintain their garden at optimum levels. Monthly scheduling is the minimum required to secure the Softscape Guarantee. The Client may schedule maintenance services beyond 12 months however the Softscape Guarantee does not extend beyond 12 months. Should the client NOT sign-up to the minimum maintenance schedule; the Landscape Builder accepts no liability for any softscape elements following handover at the Completion of Works.

7 Site Management and Practical Matters

7.1 Site Signage

The Client expressly authorises the Landscape Builder to erect temporary signage at the Project Site that identifies the Landscape Project as being constructed by the Landscape Builder. The form and positioning of the site signage shall be determined by the Landscape Builder, subject to any reasonable objection made by the Client. The Client shall allow the Landscape Builder to maintain the site signage until completion of the Construction Works.

8 Termination

8.1 Termination of Agreement

By the Landscape Builder

(a) Should the Client;

(i) fail to pay the Landscape Builder any amounts payable in accordance with this Agreement; and/or

(ii) be in breach of any provisions of this Agreement; and/or

(iii) experience an Insolvency Event,

the Landscape Builder may give the Client a written notice requiring that the Client remedy the default within 7 days (Client Default).

(b) If the Client fails to remedy the Client Default within 7 days of receiving the notice referred to in clause 8.1(a) to the reasonable satisfaction of the Landscape Builder, the Landscape Builder shall be at liberty to terminate this Agreement by giving 7 days' notice in writing to the Client.

(c) Upon termination of this Agreement by the Landscape Builder, the Client shall pay all amounts payable in accordance with this Agreement for the Construction Works executed up to the date of termination of this Agreement, together with an amount for loss of an expectation of a profit in contemplation of completing the Construction Works as so determined by the Landscape Builder.

By the Client

(a) Should the Landscape Builder:

(i) fail to supply the Construction Works detailed in the Construction Quote; and/or

(ii) be in breach of any provision of this Agreement; and/or:

(iii) experience an Insolvency Event,

The Client may give the Landscape Builder a written notice requiring that the Landscape Builder remedy the default within 7 days (Builder Default).

9 Disputes and Governing Law

9.1 Dispute Resolution Process

(a) If any dispute or difference arises between the Landscape Builder and the Client in connection with this Agreement, either the Landscape Builder or the Client shall give the other a written notice of dispute identifying and providing details of the dispute.
(b) Within 14 days of service of the written notice of dispute, the Landscape Builder and the Client shall confer at least once to resolve the dispute.

(c) If the dispute is not resolved within 21days of service of the written notice of dispute, then the dispute must be referred to mediation. Mediation Services are provided by the industry body Landscape Victoria. If the client does not agree with this mediator, a mediator shall be selected by the President of the applicable Chapter of the Resolution Institute (being the Chapter in the State or Territory in which the Works are located, set out in Part 1.2)

(d) The parties must pay the mediator's remuneration in equal shares. The Resolution Institute Mediation Rules, as amended and updated from time to time, shall apply to the mediation.

(e) If no agreement is reached following mediation, the party who instigated the dispute may initiate legal proceeding against the other party to the appropriate court as determined by law.

9.2 Governing Law

The laws in force in the State or Territory in which the Landscape Project is located (as set out in Item 1.2 of Part 1) govern this Agreement and the parties submit to the non-exclusive jurisdiction of the courts in that State or Territory.

10 Notices

10.1 Method of notice

(a) Where notice must be given under this Agreement, it must be in writing and may be hand delivered or sent by post, facsimile or electronic communication (as defined in the ETA).

(b) For the avoidance of doubt, the Landscape Builder and the Client consent to electronic service of notices and other documents in accordance with the requirements of the ETA at the email address set out in Part 1 (if any).

10.2 Service address

A notice is validly served if served:

(a) By hand delivery or post to a party’s:

(i) Address set out in Part 1 (if any); or

(ii) Registered office;

(b) By email to the email address set out in Part 1 (if any); or

(d) Or any other person authorised to accept service on behalf of a party.

10.3 Time of delivery

(a) Posted notices will be taken to have been received on the 7th day after posting, unless proved otherwise.

(b) Notices delivered after 5:00pm shall be taken to have been received the next day.

(c) Section 13A of the ETA shall apply to determine when notices delivered by electronic communication are taken to be received.

11 General Provisions

11.1 Entire Agreement, No Assignment, Variation, No Representations

(a) This Agreement is the entire Agreement between the Parties on everything connected with the subject matter of this Agreement. This Agreement supersedes any prior agreement connected with that subject matter.

(b) This Agreement cannot be varied unless the variation is in writing and signed by the parties.

(d) A party may not assign or sub-contract the whole or any part of its rights or obligations under this Agreement without the prior written consent of both parties.

(e) A waiver of any provision of, or right or obligation under, this Agreement must be in writing.

(f) The parties warrant and represent that:

(i) The Parties have been provided with an effective opportunity to negotiate the terms of this Agreement; and

(ii) The terms of this Agreement are reasonably necessary to protect the legitimate interests of the parties to this Agreement.

(g) All exclusions, indemnities and limitations of liability contained in this Agreement shall survive:

(i) termination of this Agreement; and

(ii) the conclusion of the Landscape Builder's engagement under this Agreement in accordance with clause 2.1(a).

11.2 Additional Conditions of this Agreement

If there are any additional conditions applicable to the Agreement, then those conditions will be signed by both Parties and attached to this Agreement. The additional condition shall take precedence to the extent of any inconsistency.