PART 5: TERMS OF DESIGN CONCEPT 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 Designer conducts the Business.

B. The Client engages the Landscape Designer to undertake a Design Concept 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.

Agreement means this agreement between the Landscape Designer and the Client;

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 Item 1.3 of Part 1 of this Agreement.

Client Brief means an overview of the Clients’ desired outcomes for the Landscape Project based on input from the Client;

Client Checklist means the responses provided to the Landscape Designer by the Client to a list of questions about the Landscape Project;

Client Presentation means the presentation of the Design Concept by the Landscape Designer to the Client;

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.

Design Concept means the conceptual proposal for the Clients’ Landscape Project, realised as a Landscape Masterplan. When opted for, supported by 3D renders and fly-throughs;

Design Services means the professional services provided by the Landscape Designer in undertaking the design of the Landscape Project;

Design Studio means the office of the Landscape Designer;

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 detailed construction drawings and specifications produced by the Landscape Designer that fully describe the Landscape Project; suitable for quoting or subsequently issued for construction and marked or described as “Documentation Drawings”.

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

Fee means the amount payable by the Client to the Landscape Designer set out in Part 2 and clause 4 as payable and adjusted in accordance with this Agreement.

Fee Inclusions means the items listed under ‘Fee Inclusions’ in Item 2.1 of Part 2.

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, 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 Project means the overall landscape of the Project Site, designed through this Design Concept;

Landscape Project Scope means the parameters of the Design Concept as outlined in Item 2.1 of Part 2.

Landscape Masterplan means the scaled plan drawing of the Design Concept for the Landscape Project;

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

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;

Limitations and Constraints means the extent of assessed limitations or constraints imposed on the Project Site as determined in Item 3.2 of Part 3.

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 Design Concept.

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.

Planning Permit means a legal document issued by a local authority that gives you permission to use or develop land in a specific way;

Planning Zones & Overlays means local government town planning regulations that specify land use and impose conditions on land development;

Project Site means the property address listed in Item 1.2 Part 1;

Project Documentation means the Design Service offered by the Landscape Designer on completion of the Design Concept to undertake Documentation Drawings. This is a separate service to the Design Concept.

Revision means changes to the Design Concept, realised as an alteration of the Landscape Masterplan in accordance with Item 3.6 of Part 3.

Site Analysis means assessment by the Landscape Designer of the known Limitations and Constraints relevant to the Project Site in regards to the development of a Design Concept for the Landscape Project;

Site Data means all documents (including property documents and information; additional sketches, photographs, drawings, plans or concepts) supplied by the Client to the Landscape Designer upon which the Landscape Designer is to base the Design Concept;

Site Visit means a visit to the Project Site by the Landscape Designer;

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 Contractors); or

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

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 Designer's engagement under this Agreement shall ~

(i) commence on the date stated in Part 1.4; and

(ii) conclude on payment of the final tax invoice AND:

(1) 30 days following the Client Presentation; OR the completion of Design Concept revisions (requested within 30 days); OR

(2) The date of termination under clause 8.

b) The Landscape Designer shall undertake the Design Concept for the Client in accordance with this Agreement.

c) The Client shall pay the Fee to the Landscape Designer in accordance with this Agreement.

2.2 Design Services

a) The Landscape Designer shall undertake the Design Services and any other works relating to the Landscape Project in a professional manner using reasonable care and skill.

b) The Client must ensure that all requests, decisions and instructions required by the Landscape Designer from the Client are supplied accurately and within a reasonable time so as not to delay the Design Services provided under this Agreement.

c) Prior to the Landscape Designer attending a Site Visit, the Client must, to the best of their ability, remove or minimize any hazards at the location of the Landscape Project. Where a hazard cannot be addressed, the client must inform the Landscape Designer prior to a Site Visit. 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.

2.3 Scope of Works

a) The Design Concept for the Landscape Project will be provided to the Client by the Landscape Designer as outlined in Item 2.1 of Part 2. Any alteration to the Landscape Project Scope or Fee Inclusions will constitute a Variation, processed in accordance with clause 4.3.

b) The Design Concept represents the Landscape Project at concept level. It is not a Documentation Drawing and cannot be used for the purposes of quoting or construction.

c) The Landscape Designer does not warrant or represent to the Client that the Design Concept produced pursuant to this Agreement can be constructed at the Project Site or furthermore, that it can be constructed within any budget constraints of the Client.

d) Should the Client choose to construct the Landscape Project without proceeding to Project Documentation with the Landscape Designer, the Landscape Designer accepts no liability for the outcome of the works.

2.4 Appointment as Administrator

Where the Design Services include the Landscape Designer acting in the role of Administrator the Landscape Designer shall act as the agent of the Client at all times 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 Design Services.

3. Engagement of Third Parties

3.1 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 Designer provides a contact to the Client for a Nominated Consultant, the Landscape Designer does not warrant or make any representation to the Client:

(i) that any consultants are appropriate or suitable for the Landscape Project;

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

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

c) The Landscape Designer 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 Designer or commence any legal proceedings against the Landscape Designer arising out of or in connection with any services supplied by a Nominated Consultants.

3.2 Engagement of Nominated Consultants

If the Landscape Designer is of the opinion that a Nominated Consultant must be engaged in order to undertake the Design Concept, they will submit a request to the Client to engage the Nominated Consultant and the following conditions shall apply:

a) Where the Client agrees to the consultant being engaged, the consultant shall be engaged on the same basis as set out in clause 3.1, and any collaboration and/or liaison with the consultant will be processed as a Variation in accordance with clause 4.3.

b) Where the Client does not agree to engage a Nominated Contractor, and the Landscape Designer is of the belief that the Design Services cannot proceed, the Landscape Designer may terminate the Agreement by notice in writing to the Client in accordance with clause 8.

4. Price and Payment

4.1 Payment of Fees

a) The Client must pay all fees on the basis specified in Part 2. Variation and Disbursement 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 Designer may (after written notice of default is provided to the Client):

(i) suspend engagement of the Design Concept until outstanding Fees are paid; or

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

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

4.2 Disbursements

The Client shall reimburse the Landscaper Designer for disbursements reasonably incurred as stated in Item 2.3 of Part 2 for the purposes of supplying Design Services in accordance with this Agreement.

4.3 Variations to Design Services

a) A Variation to the Design Service includes:

(i) any alteration of the Landscape Project Scope as described in Item 2.1 of Part 2.

(ii) gathering of Site Data by the Landscape Designer when the Site Data provided by the Client is inaccurate or insufficient, in the opinion of the Landscape Designer, to describe the Project Site.

(iii) collaboration and/or liaison with the Clients’ Nominated Consultants, unless expressly included in the Landscape Project Scope.

(iv) any Revision requests outside the included Design Concept Revision outlined in Item 3.6 of Part 3.

b) Variations to the Design Services as listed in this clause 4.3 point (a) may be requested by the Client or the Landscape Builder either verbally or in writing (Variation Request). The Landscape Designer will inform the Client if any works constitute a Variation and therefore incur an additional fee.

c) Where the Client does not agree to a Variation, and the Landscape Designer is of the belief that the Design Services cannot proceed without the enforcement of the Variation Request, the Landscape Designer may terminate the Agreement by notice in writing to the other party in accordance with clause 8.

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

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

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

e) Any fees payable to the Landscape Designer following a Variation will be payable to the Landscape Designer in accordance with clause 4.1.

4.4 Changes in Legislation

If a change in Legislation necessitates a change to the Design Concept the difference shall be added to or deducted from the Landscape Designer's Fee in accordance with clause 4.3.

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 Designer must not infringe any Intellectual Property rights when supplying the Design 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 Designer in accordance with this Agreement, is owned by the Landscape Designer and reproduction in whole or in part of the Documents without the permission of the Landscape Designer 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 Designer for the purpose for which they are intended provided that:

(i) the Client has paid all amounts due and payable to the Landscape Designer in accordance with this Agreement, regardless of Termination of this Agreement by either party for any reason; and

(ii) the Landscape Designer has completed the Design Services commissioned by this Agreement.

f) Subject to further written permission from the Landscape Designer, the Landscape Designer does not grant the Client a licence to use the Documents other than in accordance with clause 5.1(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 Designer 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 Designer (as determined by the Landscape Designer.)

h) The Client shall ensure that clause 5.1(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 Concept on another site without the written consent of the Landscape Designer which may include payment of an additional sum as determined by the Landscape Designer.

(ii) The Client shall not make, or allow to be made, any modifications to the Design Concept (as embodied by the Documents) without the written consent of the Landscape Designer.

(iii) The Documents prepared by the Landscape Designer remain the property of the Landscape Designer. The Landscape Designer shall retain the Documents. The Client is entitled to one copy of the final Landscape Masterplan, provided during the Client presentation as a laminated A1 or A0 and an electronic (PDF) file of the Landscape Masterplan. 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 Designer shall be given full attribution for the Design Concept (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 Designer.

(v) It is acknowledged that the Landscape Designer 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 Landscape Project shall not subject the Landscape Designer's work to derogatory treatment in accordance with the Copyright Act.

5.2 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 (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 Site Data to the Landscape Designer to use in connection with the Design Concept of the Landscape Project, the Client shall indemnify and keep indemnified the Landscape Designer 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 Site Data in performing the Design Service 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 Designer 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 Designer will be taken to be acting as agent or trustee for and on behalf of those indemnified. The Landscape Designer 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 Designer’s total aggregate liability to the Client arising out of or in connection with the Design Concept 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 Designer has any liability to the Client, the Client must give notice of any Claim it may have against the Landscape Designer within two years from the date the Landscape Designer’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 Designer after that date, unless the Client issues legal proceedings against the Landscape Designer 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 Design Concept again; or

(ii) the payment of the cost of having the Design Concept 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:

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

2. the anticipated period of delay;

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

4. 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.

7. Site Management and Practical Matters

7.1 Site Signage

The Client expressly authorises the Landscape Designer to erect temporary site signage that identifies the project as being designed or documented (as applicable), by the Landscape Designer. The form and positioning of the site signage shall be determined by the Landscape Designer, subject to any reasonable objection made by the Client. The Client shall allow the Landscape Designer to maintain the site signage until completion of the Landscape Project.

8. Termination

8.1 Termination of Agreement

By the Landscape Designer

a) Should the Client;

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

(ii) decline a Variation or engagement of an External Consultant – and the Landscape Designer determines that further work on the Design Concept cannot be conducted without the authorization of such request; and/or

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

(iv) experience an Insolvency Event,

The Landscape Designer 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 Designer, the Landscape Designer, 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 Designer, the Client shall pay all amounts payable in accordance with this Agreement for the Design 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 Design Concept as so determined by the Landscape Designer.

By the Client

a) Should the Landscape Designer:

(i) fail to supply the Client with a Design Concept as outlined in Item 2.1 of Part 2; 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 Designer and the Client in connection with this Agreement, either the Landscape Designer 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 Designer and the Client shall confer at least once to resolve the dispute.

c) If the dispute is not resolved within 21 days 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 Landscape Project is 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 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.

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.

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 Designer'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.