PART 5: TERMS OF LANDSCAPE MASTERPLAN 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 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 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 Designer upon which the Landscape Designer is to base the Design Services and/or Works;
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;
Days means calendar days including but not limited to; reference to all invoice payments to the Landscape Designer; reference to written notices;
Design Services means the services to be supplied by the Landscape Designer to the Client as selected in Part 3;
Documents means any works (as defined in the Copyright Act) created by the Landscape Designer in the course of providing Design Services including (without limitation) all plans, drawings, drafts, revisions and other documentation relating to the Works;
Fee means the amount payable by the Client to the Landscape Designer 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 the following 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 Masterplan (LMP) means the project outlined in Part 3 - the product created by the Landscape Designer in accordance with this agreement;
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;Nominated Consultants and Service Providers means the contractors, consultants, government agencies or services providers already engaged by the client, and/or identified by the Landscape Designer during the undertaking of the works outlined in Part 3 as being required for completion of the works. These are listed in Part 4 with Clause 5.12 and 5.13 being relevant to their engagement;
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;
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 Designer is engaged to supply the Design Services; and
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 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 two rounds of revision (within 30 days); OR
2. The date of termination under Clause 5.13(b) or Clause 5.19.
b) The Landscape Designer shall perform the Design Services for the Client in accordance with this Agreement.
c) The Client shall pay the Fee to the Landscape Designer in accordance with this Agreement.
5.4 Design Services
a) The Landscape Designer shall supply the Design Services using the reasonable skill and care of an ordinary Landscape Designer in the circumstances of the Landscape Designer at the time the Design Services are supplied.
b) The Client shall 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 cause delay to the Design Services provided under this Agreement.
c) Prior to the Landscape Designer attending a site visit, 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 Designer 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
5.5 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.
5.6 Authority to Act as Agent
The Client expressly authorises the Landscape Designer 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.
5.7 The Works
a) The Landscape Masterplan represents the design proposal at the concept level. It is not a construction drawing and cannot be used for the purposes of quoting or construction.
b) The Landscape Designer does not warrant or represent to the Client that the design produced pursuant to this Agreement can be constructed for the Estimated Budget outlined by the Client.
c) Should the Client choose to construct the project without undertaking project documentation services, the Landscape Designer accepts no liability for the outcome of the works.
5.8 Payment of Fees
a) The Client shall pay to the Landscape Designer the Fee, on the basis specified in Item 2.2 of Part 2. All payments to the Landscape Designer are due and payable by the Client within 7 calendar days of invoicing:
Deposit on signing of Agreement: 50%
Final payment following LMP presentation: 50%
Hourly Time Charge Basis
Where a variation of the Fee is payable on an hourly time charge basis, the Client will be invoiced on a fortnightly basis. The rates payable by the Client to the Landscape Designer shall be as stated in Item 2.4 of Part 2. The Landscape Designer shall keep accurate time records to substantiate the Fee claimed on an hourly time charge basis.
b) If the Client does not pay the Fee in accordance with this Agreement, the Landscape Designer, 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 Design Services pending payment or terminate this Agreement in accordance with Clause 5.19.
c) The Client indemnifies the Landscape Designer 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 Disbursements
The Client shall reimburse the Landscape 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. All payments to the Landscape Designer are due and payable by the Client within 7 calendar days of invoicing.
5.10 Variations in Design Services
a) Variations may be incurred at the request of the Client or the Landscape Designer for works outside the standard design scope – as outlined in NOTES in Part 3 – 3.1, 3.2, 3.3, 3.4, 3.6 and listed in Part 4.
The Landscape Designer reserves the right to request a variation to the LMP design fee with charge out rates of $107 +GST/hour to conduct any work outside the standard design scope, not limited to but including: additional site visits; additional time to produce site data due to a lack of documentation provided by the client; client requests for additional revisions or variations to the inclusions of a standard LMP; and/or additional work associated with the engagement of external consultants and/or services.
Where any variation in Design Services is required, the instigating party must give written notice outlining the variation to the other party. The scope of the Design Services cannot be varied except by written notice delivered under this Clause 5.10.
b) The variation notice provided by the Landscape Designer to the Client (or in response to the Client’s request for a variation) will state:
(i) the effect the variation will have on the Design Services and the Works;
(ii) if the variation will result in any delays, state the Landscape Designer's reasonable estimate as to how long those delays will be; and
(iii) estimated charge-out hours for the Landscape Designer and any associated costs for the variation.*
*Charge-out hours are estimated only and will be billed in accordance with Clause 5.8. Variation fee estimates do not include costs charged by external consultants and services.
c) The Landscape Designer must comply with Clause 5.10(a & b) prior to proceeding with the variation.
d) If both parties agree to proceed with the variation, the Fee shall be processed in accordance with Clause 5.8 based on the rates set out in Item 2.4 of Part 2.
e) Where the Client does not agree to a consultant being engaged, 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 other party in accordance with Clause 5.19.
f) Any fees due to external consultants and/or service providers will be paid by the Client in accordance with Clause 5.12.
5.11 Changes in Legislation
If a change in legislation necessitates a change to the Design Services, the difference shall be added to or deducted from the Landscape Designer's Fee in accordance with Clause 5.10.
5.12 Nominated Consultants and Service Providers
a) Where the Client has not engaged the Consultants or Providers directly, the Landscape Designer shall act as the agent of the Client to engage the Consultants or Providers. All Consultants and Providers will be engaged by the Client pursuant to written contracts between the Client and the Consultants or Providers. The terms on which the Consultants or Providers are engaged shall not be inconsistent with the terms of the Landscape Designer's engagement under this Agreement.
b) The Client shall be responsible for all payments to Consultants and Providers.
c) If the Landscape Designer pays the Consultant or Provider on behalf of the Client, the Client shall reimburse the Landscape Designer for the payments, plus an account-handling fee calculated at 10% of the paid amount.
d) The Landscape Designer does not warrant or make any representation to the Client:
(i) that any Consultants or Providers are appropriate or suitable for the Works;
(ii) that the scope of the services to be provided by the Consultants or Providers is appropriate or suitable; or
(iii) the accuracy or quality of the Consultants’ or Providers’ services.
e) 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 engagement of a Consultant or Provider or any services supplied by a Consultant or Provider. 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 Consultant or Provider.
5.13 Engagement of Consultants and Service Providers
If during the performance of the Agreement the Landscape Designer is of the opinion that a consultant or consultants should be engaged, they will submit a Variation Request to the Client in accordance with Clause 5.10 and the following conditions shall apply:
b) Where the Client provides written consent to the consultant being engaged, the consultant shall be engaged on the same basis as set out in Clause 5.12 and Clause 5.12 shall apply in respect of the engagement.
c) Where the Client does not agree to a consultant being engaged, 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 other party in accordance with Clause 5.19.
5.14 Moral Rights, Copyright and Client's 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 to produce the Works for which they are intended, at the site to which the design relates, 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 license to use the Documents other than in accordance with Clause 5.14(e). No license 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 5.14(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 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 of the Works (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 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 Designer shall be given full attribution for the design of
5.15 Unauthorised Use of Landscape Designer's Builder Registration Number
The Client shall not be permitted to use the Landscape Designer's Builders Registration Number for any reason whatsoever without the express written consent of the Landscape Designer describing the exact purpose for which the Landscape Designer's Builders Registration Number is to be used.
5.16 Indemnities and Limitations of Liability
a) Where the Client supplies Client Information to the Landscape Designer, the Client shall indemnify and keep indemnified, the Landscape Designer and its officers, employees and agents (those indemnified) at all times against any actions, proceedings, claims, demands, liabilities, either express or implied, whatsoever which may be taken against 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 Design Services and/or Works are based upon.
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 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 5.16: (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 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 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 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 5.3(a) and 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 5.16 is void as a result of section 64 of the Australian Consumer Law then the Landscape Designer's liability for a breach of a condition or warranty is limited to: (i) the supplying of the relevant Design Services again; or (ii) the payment of the cost of having the Design 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 Unexpected Event precludes the precluded party 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 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 Works.
5.19 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 consultant request – and the Landscape Designer determines that further Design Services 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, (a "Client Default"), the Landscape Designer may give the Client a written notice requiring that the Client remedy the Client Default within seven days.
b) If the Client fails to remedy the Client Default within seven days of receiving the notice referred to in Clause five point nineteen (a)(iv) to the reasonable satisfaction of the Landscape Designer, the Landscape Designer shall be at liberty to terminate this Agreement by giving seven 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 Services.
By the Client
a) Should the Landscape Designer:
(i) fail to supply the Design Services in relation to providing;
A scaled plan in full colour with annotations
Photo board of design features & material suggestions
Photo board of recommended plant species
Garden lighting design
A 3D snapshot of the Landscape Design
(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 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 fourteen 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 twenty-one 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 to 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 one point two).
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 proceedings against the other party to the appropriate court as determined by law.
5.21 Interest
Any amount which is not paid by the date required in this Agreement shall entitle the creditor to interest on the amount at the rate of five percent over the Commonwealth Bank Bill Rate from the due date until payment.
5.22 Governing Law
The laws in force in the State or Territory in which the Works are located (as set out in Item three of Part one) govern this Agreement, and the parties submit to the non-exclusive jurisdiction of the courts in that State or Territory.
5.23 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 five point three (a).
5.24 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.