PART 5: TERMS OF PROJECT DOCUMENTATION SERVICES ENGAGEMENT AGREEMENT
5.1 Parties and Date
This Agreement is made between the Landscape Designer and the Client named in Items 1.1 and 1.3 of Part 1 on the date stated in 1.4 of Part 1.
5.2 Definitions of Terms In this Agreement
In this Agreement, except where the context or subject otherwise requires:
Agreement means this agreement between the Landscape Designer and the Client;
Additional Works means all works outside the production of the drawings listed in Fee Inclusions Part 2.1. All additional works will be charged out at hourly rates on a fortnightly basis. This includes Consultancy, Specialised Services, and additional drawings or revisions;
Builders Registration Number means a licence or registration number granted to Paddy Milne Pty Ltd by The Victorian Builder Authority (VBA);
Claim means any cause of action, allegation, claim, demand, debt, liability, suit or proceeding of any nature howsoever arising and whether present or future, fixed or unascertained, actual or contingent, or at law (including negligence), in equity, under statute or otherwise;
Client means the person, partnership or corporation stated in Part 1.3;
Client Information means all documents (including property documents and information; client brief responses; additional sketches, photographs, drawings, plans or concepts) supplied by the Client to the Landscape Designer upon which the Landscape Designer is to base the Design Services and/or Works;
Consultancy means any time the Landscape Designers provides professional advisory services via phone, email or in person to the client, external consultants, stakeholders, and contractors in connection with the Project Documentation;
Copyright means all rights in respect of the Documents arising under the Copyright Act;
Copyright Act means the Copyright Act 1968 (Cth), as amended;
Corporations Act means the Corporations Act 2001 (Cth), as amended;
Days means calendar days including but not limited to; reference to all invoice payments to the Landscape Designer; reference to written notices;
Documents means any works (as defined in the Copyright Act) created by the Landscape Designer in the course of providing Documentation Services including (without limitation) all plans, drawings, drafts, revisions and other documentation relating to the Works;
Documentation Drawings means drawings that are produced by the Landscape Designer to document construction detail and specification of the clients Landscape Project;
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 these events in relation to a defaulting party:
a) where the Defaulting Party is a body corporate:
i. the Defaulting Party becomes an externally administered body corporate under the Corporations Act;
ii. steps are taken by any person towards making the Defaulting Party an externally administered body corporate (but not where the steps taken consist of making an application to a court and the application is withdrawn or dismissed within 14 days);
iii. a controller (as defined in section 9 of the Corporations Act) is appointed to any of the property of the Defaulting Party, or any steps are taken for the appointment of a controller (but not where the steps taken are reversed or abandoned within 14 days);
iv. the Defaulting Party is taken to have failed to comply with a statutory demand within the meaning of section 459F of the Corporations Act; or,
v. a resolution is passed for the reduction of capital of the Defaulting Party or notice of intention to propose such a resolution is given, without the prior written consent of the other party to this Agreement;
b) where the Defaulting Party is a natural person:
i. the Defaulting Party authorizes a registered trustee or solicitor to call a meeting of his or her creditors or proposes or enters into a deed of assignment or deed of arrangement or a composition with any of his or her creditors;
ii. a person holding a security interest In assets of the Defaulting Party enters into possession of or takes control of any of those assets or takes any steps to enter into possession of or take control of any of those assets; or
iii. the Defaulting Party commits an act of bankruptcy;
Intellectual Property Rights means any statutory and other proprietary right In respect of Inventions, innovations, patents, utility models, designs, circuit layouts, mask rights, copyright (including future copyright), confidential information, trade secrets, know-how, trademarks and any other right In respect of Intellectual property;
Landscape 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 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;
Project Documentation means ALL works by the Landscape Designer connected to the documentation of the project including but not limited to Consultancy, Specialised Services and the production of Documentation Drawings;
Project means the Clients Landscape Proposal, developed by the Landscape Designer and presented to the Client as a Landscape Masterplan;
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 Project;
Specialised Services means any time the Landscape Designer is required to engage or liaise with the Nominated Consultants and Service Providers listed in Part 4 via phone, email or in person;
Trade Packages means Documentation Drawings organised in drawing sets specific to the individual trades required for the construction of the Project;
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 Item 2 of Part 1; and
(ii) conclude on payment of the final tax invoice issued in connection with the Documentation of this project OR the date of termination under Clause 5.13(b) or Clause 5.19.
NOTE – due to the nature of Additional Works a specific time frame cannot be indicated to determine an end date. All Additional Works connected to the Project Documentation of the Project will continue to fall under the terms of this agreement.
b) The Landscape Designer shall perform the Project Documentation 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 Project Documentation Services
a) The Landscape Designer shall supply the Project Documentation Services using the reasonable skill and care of an ordinary Landscape Designer in the circumstances of the Landscape Designer at the time the Project Documentation 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 Project Documentation 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 Project Documentation Services include the Landscape Designer acting in the role of Administrator, the Landscape Designer shall as the agent of the Client at all times and not as an Independent certifier or assessor.
5.6 Authority to Act as Agent
The Client expressly authorises the Landscape 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.
5.7 The Works
a) The Documentation Drawings produced by the Landscape Designer have been developed for the purposes of providing specifications to contractors to guide quoting and construction.
b) Where Documentation Drawings produced by the Landscape Designer are used by the Client, Contractors, 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 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 the Estimated Budget outlined by the client.
d) Any use of the Documentation Drawings produced by the Landscape Designer (by the Client, Contractors, or other parties) for the purposes of construction of the 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 site, or inaccuracy between data provided and on-site conditions.
ii. Prior to commencing works, any user of the Documentation Drawings must conduct a Site Assessment before utilizing these 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 Qualified Consultants and Accredited Contractors as required by Law. Verification of the Feasibility, Appropriateness, and Conformance with Australian Standards, Building Codes, and Local Government Regulations should also be reviewed and confirmed during the Site Assessment.
iii. Any user with doubts about the information contained within the Documentation Drawings should contact the Landscape Designer for clarification and confirm the information. Any improvisation or deviation from the Specifications within the Documentation Drawings will void the documents as a representation of the Project.
iv. The Landscape Designer bears no responsibility or liability, whether due to negligence or any other reason, concerning any work conducted by external consultants on the Project.
v. Should any errors or issues arise as a result of the work carried out by external Contractors, Consultants, or Service Providers, 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.
vi. It is incumbent upon the Client to exercise due diligence in engaging and overseeing the work of Contractors, Consultants, and Service Providers and to address any concerns or disputes related to their performance directly with those providers. The Landscape Designer's 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 (underground or overhead). Any specifications referencing services are indicative only. It is incumbent on any contractors 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 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 contractors 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 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 contractors 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 specifications have been provided by an engineer, the liability for the specifications provided falls upon the engineer providing the specifications.
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% of Fee for Documentation Drawings
Payment on completion of Drawing Set: 50% of Fee for Documentation Drawings
Hourly Time Charge Basis
Where Additional Works are carried out, the Fee is payable on an hourly time charge basis, 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 Project Documentation 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 Project Documentation 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 Additional Works
a) Additional Works are works conducted by the Landscape Designer outside the Fee Inclusions listed in Part 2.1 – as noted in Part 3 and Part 4.
The Landscape Designer reserves the right to invoice the Client at charge-out rates of $107 +GST/hour, on a fortnightly basis, any Additional Works not limited to but including: Consultation, Specialised Services, additional revisions, or additional drawings. All payments to the Landscape Designer are due and payable by the Client within 7 calendar days of invoicing.
b) Additional Works may 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 charge-out rates.
c) The Landscape Designer must comply with Clause 5.10(b) prior to undertaking Additional Works.
d) The process of Project Documentation for complex Projects can be drawn out over time and require significant Additional Works. It is the Client’s responsibility to inform the Landscape Designer of any concerns they may have regarding their ability to fund ongoing Additional Works. Should the Client raise these concerns, the Landscape Designer may, at their discretion:
(i) Work with the Client to expedite the Project with an altered scope to meet their budget; or
(ii) Make recommendations to the Client on the impact of completing any outstanding Documentation Drawings without Additional Works. Where the Client accepts these impacts, the Documentation Drawings will become indicative only, and the Landscape Designer is absolved of all liabilities arising from any construction works connected to the Project; or
(iii) Determine that it is no longer feasible for the Landscape Designer to continue to provide services to the Client and proceed to terminate the Agreement by notice in writing to the other party in accordance with clause 5.19.
e) Where the Client does not agree to Additional Works, 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 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 Project Documentation 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
External Consultants and Service Providers are listed by either the Client or the Landscape Designer in Part 4 as connected to, or required for, the completion of the Project Documentation. Any liaison or engagement with External Consultants or Providers by the Landscape Designer will be Additional Works and subject to the terms stated in Clause 5.10 and:
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 Service Provider should be engaged, they will make a request to the client in accordance with Clause 5.10 and the following conditions shall apply:
a) Where the Client provides 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.
b) Where the Client does not agree to a consultant being engaged, 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 5.19.
5.14 Moral Rights, Copyright and Clients License to use the Documents
a) The Client must not infringe any intellectual Property Rights when supplying Client Information.
b) The Landscape 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 5.14(e). No licence is granted to allow a third party who is a subsequent owner or developer of the site to use the Documents.
g) The Landscape 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 the Works (as embodied by the Documents) and all promotional material, advertising and media releases prepared by the Client or the builder of the project shall identify the Landscape 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 Works shall not subject the Landscape Designer's work to derogatory treatment in accordance with the Copyright Act.
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 Project Documentation 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.
5.17 Unexpected Events
a) If an Unexpected Event affecting a party precludes that party (precluded party) either partially or wholly from complying with its obligations under this Agreement, then:
(i) As soon as reasonably practicable after that Unexpected Event arises, the precluded party must notify the other party of the Unexpected Event, how it is affecting the precluded party's performance (to the best of that party's knowledge), the anticipated period of delay, and what the precluded party intends to do to either mitigate or remove the effect of the delay if possible; and
(ii) To the extent and for the period that the precluded party is precluded by the Unexpected Event from complying with its obligations under this Agreement, those obligations will be suspended.
b) The precluded party must act as promptly as possible to take all reasonable steps available to either mitigate or remove the Unexpected Event and its effect.
c) Clause 5.17(a) does not apply to any obligation to pay money.
5.18 Site Signage
The Client expressly authorises the Landscape 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 request to conduct Additional Works or engage external Consultants or Service Providers, and the Landscape Designer determines that further Project Documentation 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 7 days.
b) If the Client fails to remedy the Client Default within 7 days of receiving the notice referred to in Clause 5.19(a)(iv) 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 Services.
By the Client
a) Should the Landscape Designer:
(i) Fail to supply the Project Documentation Services in relation to providing the Documentation Drawings as listed in Part 2.1 Fee Inclusions, with the exception of circumstances that may arise as outlined in Clause 5.10; and/or
(ii) Be in breach of any provision of this Agreement; and/or
(iii) Experience an Insolvency Event,
5.20 Dispute Resolution Process
a) If any dispute or difference arises between the Landscape 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 with this mediator, a mediator shall be selected by the President of the applicable Chapter of the Resolution Institute (being the Chapter in the State or Territory in which the Works are located, as 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 proceedings against the other party in 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 5% 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 3 of Part 1) govern this Agreement, and the parties submit to the non-exclusive jurisdiction of the courts in that State or Territory.
5.23 Entire Agreement, No Assignment, Variation, No Representations
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