PART 5: TERMS OF PROJECT DOCUMENTATION SERVICES 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.

Additional Works means any Project Documentation work conducted by the Landscape Designer in relation to the Landscape Project, outside of the creation of the Documentation Drawings as listed in Item 2.1 of Part 2. This includes but is not limited to: Consultancy; Specialised Services; drawings not listed in the Fee inclusions of Item 2.1 of Part 2 and Documentation Drawing Revisions. All Additional Works are processed in accordance with clause 4.4.

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

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

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

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

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

Consultancy means any time the Landscape Designer provides professional advisory services via phone, email or in person to the Client, Nominated Consultants or any other stakeholders in connection with the Landscape Project. Consultancy is NOT listed as a Fee Inclusion with the Documentation Drawings and is considered Additional Works

Construction Works means any landscape construction works for the Landscape Project, to be carried out at the Property, as described and specified in the Documentation Drawings.

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, developed by the Landscape Designer. This is a separate service to Project Documentation;

Detail means a drawing that details a component of the Landscape Project

Documents means all works (within the meaning of the Copyright Act) created by the Landscape Designer 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 set of drawings, Details and Specifications produced by the Landscape Designer that fully describe the Landscape Project; inclusive of the drawings listed in Item 2.1 of Part 2. Where stated, Issue 1 refers to the first issuing of the completed set to the Client.

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 clauses 4.1, 4.2, 4.3, 4.4 and 4.5 as adjusted in accordance with this Agreement.

Fee Inclusion means the Documentation Drawings listed as 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;

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

Landscape Project means the landscape design and construction project developed by the Landscape Designer for the Client during Design Concept phase, as detailed in the Documentation Drawings.

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 means the contractors, subcontractors, consultants or service providers engaged (or to be engaged) directly by the Client in relation to the Landscape Project. All Nominated Consultants are to be listed in accordance with Part 4 of this Agreement, and their engagement is governed by clause 3.

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;

Project Documentation means ALL works by the Landscape Designer connected to the documentation of the Landscape Project including but not limited to Consultancy, Specialised Services and the production of Documentation Drawings;

Project Site/ Property means the property for which the Landscape Project is being developed, as identified under Item 1.3 of Part 1 of this Agreement.             

Revision means changes to the Documentation Drawings after Issue 1 has been provided to the Clients. Documentation Drawing Revisions are considered Additional Works.

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;

Specification means elements including annotations, notes and dimensioned figures within Documentation Drawings that specify materiality and or application processes specific to the construction of the Landscape Project;

Specialised Services means any time the Landscape Designer is required to undertake work in connection with the Landscape Project that sits outside of the Fee inclusions listed in Item 2.1 of Part 2 and is not considered Consultancy. Examples of Specialised Services are listed in Item 3.5 of Part 3;

Trade Packages means Documentation Drawings organised in drawing sets specific to the individual trades required for the construction of the Landscape Project.

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;

(c)    Ionising radiation or contamination by radioactivity;

(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.

Variation(s) means an alteration to the Landscape Project, at the request of the Client, that requires alteration to Documentation Drawings already undertaken by the Landscape Designer. All Variations are processed in accordance with clause 4.3.   

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)      submission to the Client of Issue 1 of the Documentation Drawings; OR

(2)    completion by the Landscape Designer of any ongoing Additional Works in relation to the Project Documentation; OR

(3)    The date of termination under clause 8.

b)     The Landscape Designer shall undertake the Project Documentation 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     Project Documentation Services

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

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 Project Documentation 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 Documentation Drawings produced by the Landscape Designer have been developed for the purposes of providing Specification to Nominated Consultants to guide quoting and construction. 

b)     Where Documentation Drawings produced by the Landscape Designer are used by the Client, Nominated Consultants, or other parties for the purposes of quoting; it is incumbent upon the user to undertake their own checks and measurements of quantities and not solely rely upon the quantities and Specifications within the Documentation Drawings. The Landscape Designer makes no determination for the provision of accessibility to the Project Site; presence or condition of services to site; onsite conditions; availability of specified materials.

c)      The Landscape Designer does not warrant or represent to the Client that the design produced pursuant to this Agreement can be constructed for any estimated budget outlined by the Client.

d)     Any use of the Documentation Drawings produced by the Landscape Designer (by the Client, Nominated Consultants, or other parties) for the purposes of construction of the Landscape Project must adhere to the following:

(i)      The Information presented in Documentation Drawings is based on the most current data available at the time. No liability is accepted for alterations, changes to the Project Site or inaccuracy between data provided and on-site conditions; and

(ii)     Prior to commencing works, any user of the Documentation Drawings must conduct an assessment of the Project Site before utilizing these Documentation Drawings for pricing or construction purposes. The user must check and confirm all dimensions and levels on site. It is essential to obtain written advice from any Nominated Consultants as required by Law. Verification of the feasibility, appropriateness, and conformance with any applicable Australian Standards, Building Codes, and/or Local Government Regulations should also be reviewed and confirmed during the assessment of the Project Site; and

(iii)    Any user with any doubts about the information contained within the Documentation Drawings should contact the Landscape Designer for clarification and confirm of the information provided. Any improvisation or deviation from the Specifications within the Documentation Drawings will void the Documents as a representation of the Landscape Project; and

(iv)   The Landscape Designer bears no responsibility or liability, whether due to negligence or any other reason, concerning any work conducted by Nominated Consultants on the Landscape Project; and

(v)     Should any errors or issues arise as a result of the work carried out by Nominated Consultants, the Landscape Designer shall not be held accountable for any resulting consequences, damages, or liabilities. The Client acknowledges that the Landscape Designer is not in control of nor responsible for the actions, quality, or outcomes of such providers and, as such, absolves the Landscape Designer of any liability in this regard to the extent permitted by Law; and

(vi)   It is incumbent upon the Client to exercise due diligence in engaging and overseeing the work of Nominated Consultants and to address any concerns or disputes related to their performance directly with those providers. The Landscape Designers role in such matters is limited to facilitating the engagement of these providers and does not extend to assuming liability for their work.

e)     Site Services – no provision has been made for the locating of services at the Project Site (underground or overhead). Any Specifications referencing services are indicative only. It is incumbent on any Nominated Consultants carrying out construction works to accurately locate all services. The Landscape Designer accepts no liability for any delay created; alterations required to the works or damage to any services due to service locations during the Landscape Project construction phase.

f)       Soil Types – there has been no provision for the assessment of existing soil conditions. Any Specifications referencing existing conditions are indicative only. It is incumbent on the Client and/or any Nominated Consultants carrying out construction works to accurately assess existing ground conditions and/or consider any referral to the Client to order soil reports. The Landscape Designer accepts no liability for any delay created or alterations required to the works due to soil type during the Landscape Project construction phase.

g)     Footings Specifications – all references and Specifications provided for footings are indicative only. No consideration or provision has been made for site specific conditions or service locations. It is incumbent on the Client and/or any Nominated Consultants carrying out construction works to determine the appropriateness of the footings specified and/or to consider any referral to the Client to obtain engineering specifications. The Landscape Designer accepts no liability for the suitability of footings specified. Where footings specification has been provided by an engineer, the liability for the specifications provided falls upon the engineer providing the specifications.

2.4      Appointment as Administrator

Where the Project Documentation 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 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 Project Documentation 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 Project Documentation, 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 by the Landscape Designer will be processed as Additional Works in accordance with clause 4.4.

b)     Where the Client does not agree to engage a Nominated Contractor, and the Landscape Designer is of the belief that the Project Documentation 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. Additional Works, 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 Project Documentation Service until outstanding Fees are paid; or

ii.          terminate this Agreement in accordance with clause 8.1. 

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 Project Documentation Services in accordance with this Agreement.

4.3      Variations

a)      A Variation occurs when the Client requests an alteration to the Landscape Project during the Landscape Designers’ undertaking of Issue 1 of the Documentation Drawings as listed in the Fee Inclusions of Item 2.1 of Part 2.

b)     Once the Client makes a request to alter the Landscape Project, the Landscape Designer will inform the Client of the impact of the alterations on the Documentation Drawing work already completed.

c)      The Landscape Designer will keep a record of all hours spent resolving the requested alterations and updating the Documentation Drawings to reflect the requested alterations by the Client.

d)     Fees payable to the Landscape Designer for the hours spent completing a Variation will be payable to the Landscape Designer in accordance with clause 4.1 

4.4     Additional Works

a)      Additional Works are all Project Documentation works related to the Landscape Project, conducted by the Landscape Designer, exclusive of the fixed Fee Inclusions listed in Item 2.1 of Part 2. This includes but is not limited to: Consultancy; Specialised Services; drawings not listed in the Fee inclusions of Item 2.1 of Part 2 and Documentation Drawing Revisions.

b)     Fees payable to the Landscape Designer for the hours spent completing Additional Works will be payable to the Landscape Designer in accordance with clause 4.1.

c)      Additional Works can be requested by the Client or the Landscape Designer either verbally or in writing. Where the Client requests services of the Landscape Designer that are considered Additional Works OR the Landscape Designer deems Additional Works are necessary to facilitate the undertaking of the Documentation Drawings; it will be the responsibility of the Landscape Designer to inform the Client, either verbally or in writing, that the services to be performed will be Additional Works that will incur the hourly charge out rates listed in Item 2.4 of Part 2. 

d)     The process of Project Documentation for complex Landscape Projects can be drawn out over time and require significant Additional Works. It is the Clients’ responsibility to inform the Landscape Designer, of any concerns they have regarding their ability to fund ongoing Additional Works. When the Client raises these concerns the Landscape Designer will, at the Landscape Designer discretion;

(i)      Work with the Client to expediate the Project Documentation with an altered scope to meet the Clients’ budget; or

(ii)     Outline the consequences to the Landscape Project of ceasing further Additional Works. Where the Client accepts these consequences, all incomplete Documentation Drawings will become indicative only and Landscape Designer is absolved of all liabilities arising from any Construction Works connected to the Landscape Project; or

(iii)    Determine that it is no longer feasible for the Landscape Designer to provide Project Documentation services to the Client and proceed to terminate the Agreement by notice in writing to the other party in accordance with clause 8.1.

e)     Where the Client does not agree to Additional Works being conducted, and the Landscape Designer is of the belief that the Project Documentation Services cannot proceed, the Landscape Designer may terminate the Agreement by notice in writing to the other party in accordance with clause 8.1.

f)       Any Fees due to Nominated Consultants undertaking Additional Work for the Landscape Project will be paid by the Client in accordance with clause 4.1.

4.5       Changes in Legislation

If a change in Legislation necessitates a change to the Project Documentation Services the difference shall be added to or deducted from the Landscape Designer's Fee in accordance with Clause 4.4.

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 Project Documentation 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 for, 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 Project Documentation 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 as described in the Documentation Drawings 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 Documentation Drawings (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 an electronic (PDF) file of Issue 1 of the Documentation Drawings, and all Documents produced for the Landscape Project as Additional Works. 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 Project Documentation (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 Project Documentation 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 Project Documentation 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 Project Documentation 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 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 Project Documentation again; or

(ii)    the payment of the cost of having the Project Documentation 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 signage at the Project Site that identifies the Landscape 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, Additional Work or engagement of a Nominated Consultant – and the Landscape Designer determines that further work on the Project Documentation 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 Project Documentation 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 Project Documentation 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 Designer a written notice requiring that the Landscape Designer remedy the default within 7 days (Designer 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 Landscape Project is located (as set out in Item 1.2 of Part 1) govern this Agreement and the parties submit to the non-exclusive jurisdiction of the courts in that State or Territory.  

10.   Notices

10.1      Method of notice

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

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

10.2      Service address

A notice is validly served if served:

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

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

(ii)     Registered office;

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

(c)    To the last known business, postal or email address or facsimile number for the receiving party;

(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.