PART 5: TERMS OF CONSTRUCTION SERVICES ENGAGEMENT AGREEMENT
5.1 Parties and Date
This Agreement is made between the Landscape Designer and the Client named in Items 1.1 and 1.3 of Part 1 on the date stated in 1.4 of Part 1.
5.2 Definitions of Terms In this Agreement
In this Agreement, except where the context or subject otherwise requires:
Agreement means this agreement between the Landscape Builder and the Client;
Additional Works means all works outside the production of the drawings listed in Fee Inclusions Part 2.1. All additional works will be charged out at hourly rates on a fortnightly basis. This includes Consultancy, Specialised Services, and additional drawings or revisions;
Builders Registration Number means a licence or registration number granted to Paddy Milne Pty Ltd by The Victorian Builder Authority (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 Part 1.3;
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 Design Services and/or Works;
Consultancy means any time the Landscape Builder provides professional advisory services via phone, email or in person to the client, external consultants, stakeholders, and contractors in connection with the Project Documentation;
Copyright means all rights in respect of the Documents arising under the Copyright Act;
Copyright Act means the Copyright Act 1968 (Cth), as amended;
Corporations Act means the Corporations Act 2001 (Cth), as amended;
Construction Quote means the itemised costings provided with this agreement for the construction of your Landscape Project.
Construction Works means the specific project or undertaking to be performed at the address stated in Item 1.3 of Part 1 in respect of which the Landscape Builder is engaged to undertake the construction for as detailed in the Construction Quote;
Days means calendar days including but not limited to; reference to all invoice payments to the Landscape Builder ; reference to written notices;
Documents means any works (as defined in the Copyright Act) created by the Landscape Builder in the course of providing Documentation Services including (without limitation) all plans, drawings, drafts, revisions and other documentation relating to the Works;
Documentation Drawings means drawings that are produced by the Landscape Builder to document construction detail and specification of the clients Landscape Project;
Emergency Works means engaging the relevant service provider to immediately remedy an issue that presents as a safety hazard to persons at the site of the Landscape Project. This may include but is not limited to trades to repair or make safe damaged services such as water or power; trades to repair or make safe structures or vegetation with compromised structural integrity that poses immediate threat; any other relevant trades or service providers that may be required to respond to any situation that presents an immediate threat to persons at the site of the Landscape Project;
Fee means the amount payable by the Client to the Landscape Builder set out in Part 2 and Part 5 - clauses 5.8, 5.9 and 5.10 as payable and 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
c) an incorporated company over which a Federal, State or Territory government exercises control;
Insolvency Event means any of these events in relation to a defaulting party:
a) where the Defaulting Party is a body corporate:
i. the Defaulting Party becomes an externally administered body corporate under the Corporations Act;
ii. steps are taken by any person towards making the Defaulting Party an externally administered body corporate (but not where the steps taken consist of making an application to a court and the application is withdrawn or dismissed within 14 days);
iii. a controller (as defined in section 9 of the Corporations Act) is appointed to any of the property of the Defaulting Party, or any steps are taken for the appointment of a controller (but not where the steps taken are reversed or abandoned within 14 days);
iv. the Defaulting Party is taken to have failed to comply with a statutory demand within the meaning of section 459F of the Corporations Act; or,
v. a resolution is passed for the reduction of capital of the Defaulting Party or notice of intention to propose such a resolution is given, without the prior written consent of the other party to this Agreement;
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 enter into possession of or take control of any of those assets; or
iii. the Defaulting Party commits an act of bankruptcy;
Intellectual Property Rights means any statutory and other proprietary right In respect of Inventions, innovations, patents, utility models, designs, circuit layouts, mask rights, copyright (including future copyright), confidential information, trade secrets, know-how, trademarks and any other right In respect of Intellectual property;
Landscape Builder means the person or persons representing The Scape Artist, as stated in Item 1.1 of Part 1;
Landscape Project means the Clients Landscape Proposal; developed by the Landscape Builder; specified through Documentation Drawings; costed in the Construction Quote;
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
c) standards, codes and guidelines which have the force of law;
Nominated Contractors means the Contractors or services providers engaged by the client in relation to the Landscape Project and/or the Sub-contractors engaged by the Landscape Builder as inclusive within the Construction Quote. These are listed in Part 4 with Clause 5.12 and 5.13 being relevant to their engagement;
Schedule of Works means the proposed implementation timing schedule for the construction of the Landscape Project as outlined in the Construction Quote;
Unexpected Event means anything outside that party's reasonable control that the affected party is not able to either prevent or remove at reasonable cost, including strikes not involving its employees, fires, internet viruses or attacks, electrical outages, storms, floods, earthquakes, wars, riots, acts of terrorism or a pandemic declared by a Governmental Agency;
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.
5.3 Nature of Agreement
a) The Landscape Builder's engagement under this Agreement shall ~
(i) commence on the date stated in Item 2 of Part 1; and
(ii) conclude on payment of the final tax invoice issued at the completion of the Construction Works for this Landscape Project OR the date of termination under Clause 5.13(b) or Clause 5.19.
b) The Landscape Builder shall perform the Construction Works for the Client in accordance with this Agreement.
c) The Client shall pay the Fees to the Landscape Builder in accordance with this Agreement.
5.4 Constrution Services
a) The Landscape Builder shall undertake Construction Services using the reasonable skill and care of an ordinary Landscape Builder in the circumstances of the Landscape Builder at the time the Construction Services are supplied.
b) The Client shall 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 cause delay to the Construction Services provided under this Agreement.
c) Prior to the Landscape Builder commencing on site works, the Client shall ensure that, to the best of their ability, they have removed or minimized any hazards on their property. Where a hazard is unable to be addressed, the client must inform the Landscape Builder prior to attendance. This may include but not be limited to; unrestrained animals, hazardous work operations being conducted on site, hazardous site conditions due to weather, building works or other phenomena. RISK ASSESSMENT??
5.5 Appointment as Administrator
Where the Construction Services include the Landscape Builder acting in the role of Administrator the Landscape Builder shall as the agent of the Client at all times and not as an Independent certifier or assessor.
5.6 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 Services.
5.7 The Works
a) The Construction Quote produced by the Landscape Builder has been developed for the purposes of providing costings to undertake only those works outlined within the Construction Quote. Works that are listed as NOT INCLUDED; or works that are conducted as Emergency Works; or works that are changes or additions made at the Clients request are Variations as outlined in Clause 5.9.
b) Site location services will be conducted by the Landscape Builder where it indicated or informed by the Client that services are present. The Landscape Builder accepts liability for the cost of repairs to any services that have been located. The Landscape Builder defers all liability for repairs to the Client for any damage caused to any unknown or unlocated services.
c) Should any errors or issues arise as a result of the work carried out by external Contractors, Consultants or Service Providers, the Landscape Builder shall not be held accountable for any resulting consequences, damages, or liabilities. The Client acknowledges that the Landscape Builder is not in control of nor responsible for the actions, quality, or outcomes of such providers and, as such, absolves the Landscape Builder of any liability in this regard to the extent permitted by Law.
d) Any other clauses of protection and cover to include here??
5.8 Payment Of Fees
a) The Client shall pay to the Landscape Builder all fees outlined in the Construction Quote on the basis specified in Item 2.2 of Part 2. Payment of any Variation costs or Reset Fees are also subject to these clauses outlined here in Clause 5.8.
b) Delays in payment of invoices will incur late payment fees. Payments will be considered overdue 14 days after invoicing. Late payment fees are calculated at 5% of the outstanding amount – calculated and added to the overdue invoice on a fortnightly basis. The first late payment fee will be processed and invoiced 28 days after the provision of the initial invoice.
c) If the Client does not pay the Fee in accordance with this Agreement, the Landscape Builder, after providing the Client with a Notice of Client Default, in addition to any other remedy which may be available against the Client, may by notice to the Client suspend supplying any further Construction Services pending payment or terminate this Agreement in accordance with Clause 5.19.
d) The Client indemnifies the Landscape Builder in respect of all costs, losses and damage incurred in respect of non-payment of the Fee, including but not limited to the legal costs associated with recovering the Fee.
5.9 Variations
a) A variation to the Landscape Project includes any changes or additions that deviate from the Construction Quote as requested by the Client; or works carried out by the Landscape Builder as Emergency Works; or works carried out by the Landscape Builder, at the request of the client, that are outlined in the Construction Quote as NOT INCLUDED in the Construction Quote fee.
b) Variations to the Construction Quote may be requested by the Client either verbally or in writing. It will be the responsibility of the Landscape Builder to inform the Client in writing that the works and/or changes they have requested are deemed a variation that will incur additional cost.
c) A variation request may also trigger Additional Works relevant to the Clients Documentation Agreement. During the Construction process the Client’s Project Documentation Agreement remains active and any Additional Works connected with External Consultants, Contractors and Service Providers; Project Assistance requests; or revisions to Documentation Drawings will be processed under and in accordance with that contract. Construction Variations are specific to changes that deviate from the Construction Quote.
d) Where a Variation request is made the following charges will apply:
(i) Hourly rates: Labour rates incurred by the Landscape Builder (including all employees) are charged at $80+ 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 in material costs and will be issued with an invoice for payment;
(iii) Emergency Works: Any emergency works payments made by the Landscape Builder that are required during construction will be reimbursed by the Client plus a 10% surcharge for administrative costs.
(iv) NOT INCLUDED Works: detail not required here?
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;
(ii) Where possible make all attempts to contact the Client to inform them of the required Emergency Works as soon as practicably possible
f) The request for works Variations can add significant cost to a Landscape Project. It is the Clients responsibility to inform the Landscape Builder, of any concerns they may have regarding their ability to fund Variations and ongoing hourly rates incurred as a result. 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 5.19.
OPTION FOR ESTIMATES?
g) Any fees payable to the Landscape Builder following approval of a Variation will be payable to the Landscape Builder in accordance with Clause 5.8
5.10 Reset Fees
The Client will be provided a Schedule of Works program outlining timing… Once this Schedule is finalised it is the responsibility of the Client to ensure that the Landscape Project site is accessible and available, with no competing trades or activities being conducted on-site to delay or interrupt the Construction Works.
Where an on-site interruption caused by the Client results in a break or delay in the Schedule of Works for the Construction Quote, a one-off reset fee of $XXX will be charged prior to a return to work to cover costs incurred by the Landscape Builder to adjust schedules and/or undertake site pack down and restart. The Landscape Builder will adjust the Schedule of Works at their convenience. Payment of this fee will be issued and processed in accordance with Clause 5.8.
Weather delays??...or include in unexpected events?
5.11 Changes in Legislation
If a change in Legislation necessitates a change to the Construction Services, the difference shall be added to or deducted from the Landscape Builder’s Fee in accordance with Clause 5.10.
5.12 Nominated Contractors
The Landscape Builder has listed the Sub-contractors in Part 4.1 who have been engaged by the Landscape Builder to undertake elements of the Construction Works. These Sub-contractors are the responsibility of the Landscape Builder.
Contractors engaged directly by the Client in connection to the Landscape Project are the sole responsibility of the Client and are subject to the following:
a) The Client shall be responsible for all payments to Contractors engaged directly by the Client;
b) Where the Landscape Builder provides a contact to the Client for an external Contractor, they does not warrant or make any representation to the Client:
(i) that any Contractors are appropriate or suitable for the Works;
(ii) that the scope of the services to be provided by the Contractor is appropriate or suitable; or
(iii) the accuracy or quality of the Contractors 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 Contractors connected to the Landscape Project. 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 Client engaged Contractor;
d) The Client is responsible for ensuring that directly engaged Contractors do not interfere with or impede the Construction Works of the Landscape Builder. The Client is liable for any damages caused by directly engaged Contractors to the Construction Works or the Landscape Builders equipment. Where the directly engaged Contractors create a need for the Landscape Builder to pause works, the Client will be liable to pay a reset fee as outlined in Clause 5.10.
5.13 Engagement of Consultants and Service Providers
If a Variation request made by the Client results in the Landscape Builder being of the opinion that a Consultant or Service Provider should be engaged, they will make a request to the client in accordance with the Project Documentation Agreement.
5.14 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.
e) The Client is granted an irrevocable license to only use the Documents prepared by the Landscape Builder to produce the Works for which they are intended for, at the site to which the design relates, provided that:
(i) the Client has paid all amounts due and payable to the Landscape Builder in accordance with this Agreement, regardless of Termination of this Agreement by either party for any reason; and
(ii) the Landscape Builder has completed the Project Documentation Services commissioned by this Agreement.
f) Subject to further written permission from the Landscape Builder, the Landscape Builder does not grant the Client a licence to use the Documents other than in accordance with Clause 5.14(e). No licence is granted to allow a third party who is a subsequent owner or developer of the site to use the Documents.
g) The Landscape Builder may consent to allow a third party who is a subsequent owner or developer of the site to use the Documents which may include payment of an additional sum to cover the costs, losses and expenses of the Landscape Builder (as determined by the Landscape Builder.)
h) The Client shall ensure that Clause 5.14(e) is included in any contract of sale of the site to which the Documents relate.
i) For the avoidance of doubt, the parties agree that:
(i) The Client shall not reproduce the Documents or reproduce the design on another site without the written consent of the Landscape Builder which may include payment of an additional sum as determined by the Landscape Builder.
(ii) The Client shall not make, or allow to be made, any modifications to the design of the Works (as embodied by the Documents) without the written consent of the Landscape Builder.
(iii) The Documents prepared by the Landscape Builder remain the property of the Landscape Builder. The Landscape Builder shall retain the Documents. The Client is entitled to one copy of the final LMP, as a record of the Works, provided during the Client presentation as a laminated A1 or A0. Additional revisions will be provided as an electronic (PDF) copy. The Client shall not be entitled to any electronic (CAD) file copy of any of the Documents, as the parties agree that electronic copies of the drawings forming part of the Documents will only be provided in PDF.
(iv) In accordance with Part IX of the Copyright Act, the Landscape Builder shall be given full attribution for the design of the Works (as embodied by the Documents) and all promotional material, advertising and media releases prepared by the Client or the builder of the project shall identify the Landscape Builder.
(v) It is acknowledged that the Landscape Builder has a right of integrity of authorship to the Documents and that all promotional material, advertising and media releases prepared by the Client, the Builder or any other third party relating to the Works shall not subject the Landscape Builder's work to derogatory treatment in accordance with the Copyright Act.
5.15 Unauthorised Use of Landscape Designer's Builder Registration Number
a) The Client shall not be permitted to use the Landscape Builder's Builders Registration Number of the Landscape Builder holds a Registration Number) for any reason whatsoever without the express written consent of the Landscape Builder describing the exact purpose for which the Landscape Builder's Builders Registration Number is to be used.
b) 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 permitting the Client to use the Landscape Builder's Registration Number.
5.16 Indemnities and Limitations of Liability
a) Where the Client supplies Client Information to the Landscape Builder, the Client shall indemnify and keep indemnified, the Landscape Builder and its officers, employees and agents (those indemnified) at all times against an actions, proceedings, claims, demands, liabilities, either express or implied, whatsoever which may be taken against the those indemnified and for all costs, losses, losses of profit, damages and expenses incurred or which become payable by those indemnified, that result or arise from any claim for infringement of any patent, registered design, trademark, copyright, Moral Rights, or any other property interest of a third party which may result out of the use by those indemnified of the materials provided by the Client which the Construction Works are based upon.
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 5.16(a) and 5.16(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 16:
(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 Services 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 5.3(a) and 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 5.16 is void as a result of section 64 of the Australian Consumer Law then the Landscape Builder's liability for a breach of a condition or warranty is limited to:
(i) the supplying of the relevant Construction Services again; or the payment of the cost of having the Construction Services supplied again,
5.17 Unexpected Events
a) If an Unexpected Event affecting a party precludes that party (precluded party) either partially or wholly from complying with its obligations under this Agreement, then:
(i) As soon as reasonably practicable after that Unexpected Event arises, the precluded party must notify the other party of the Unexpected Event, how it is affecting the precluded party's performance (to the best of that party's knowledge), the anticipated period of delay, and what the precluded party intends to do to either mitigate or remove the effect of the delay if possible; and
(ii) To the extent and for the period that the precluded party is precluded by the Unexpected Event from complying with its obligations under this Agreement, those obligations will be suspended.
b) The precluded party must act as promptly as possible to take all reasonable steps available to either mitigate or remove the Unexpected Event and its effect.
c) Clause 5.17(a) does not apply to any obligation to pay money.
5.18 Site Signage
The Client expressly authorises the Landscape Builder to erect temporary site signage that identifies the 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.
5.19 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, (a "Client Default"), the Landscape Builder may give the Client a written notice requiring that the Client remedy the Client Default within 7 days.
b) If the Client fails to remedy the Client Default within 7 days of receiving the notice referred to in Clause 5.19(a)(iii) 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 Consrtuction Services 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 Services.
By the Client
a) Should the Landscape Builder:
(i) fail to supply the Construction Services detailed in the Construction Quote; and/or
(ii) be in breach of any provision of this Agreement; and/or
(iii) experience an Insolvency Event,
5.20 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 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.
5.21 Governing Law
The laws in force in the State or Territory in which the Works are located (as set out in Item 3 of Part 1) govern this Agreement and the parties submit to the non-exclusive jurisdiction of the courts in that State or Territory.
5.22 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.
c) The parties acknowledge that no reliance has been placed on any prior agreement or representation.
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 5.3(a).
5.23 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.
5.24 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 signs up 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 $69.70 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.