NICKI KING LANDSCAPE DESIGN
TERMS AND CONDITIONS
The following conditions, provisions and terms (“Terms and Conditions”) govern the relationship between Nicki King Landscape Design (“NKLD”) and the Client in connection with the supply of Design Services.
1. DEFINITIONS AND INTERPRETATION
1.1. “Additional Items” means any services performed of a type and nature not specifically referred to in the Quote;
1.2. “Agreement” means the documents comprising the Quote and Terms and Conditions;
1.3. “Business Day” means a day on which the banks are open for general banking business in South Australia except Saturday, Sundays and public or statutory holidays;
1.4. “Contract Sum” means the amount specified in the Quote;
1.5. “Client” means the person/s identified in the Quote;
1.6. “person” includes companies;
1.7. “Quote” means the document preceding or accompanying the Terms and Conditions having that title.
1.8. “Design Services” means the activities, work and services described in the Quote;
1.9. “Site” is the premises listed under “Site Address” the Quote;
1.10. Headings are for convenience only and do not form part of these Terms and Conditions; and
1.11. Reference to the singular includes the plural and the plural includes the singular.
2. ACCEPTANCE AND ENGAGEMENT
2.1. The Client is deemed to have accepted and confirmed the accuracy of the Quote and to have read and accepted the Terms and Conditions by responding by email to NKLD together with paying any deposit nominated in the Quote.
3. QUOTATIONS AND PRICES
3.1. NKLD shall specify in the Quote the Design Services that will be provided to fulfill the Client’s instructions and outline an estimate of NKLD’s charge for performance of such work.
3.2. NKLD need not carry out provision of the Design Services until the Quote and the Terms and Conditions have been accepted by the Client.
4. VARIATIONS IN PRICES
4.1. Subject to the below provisions, all prices in the Quote shall remain current for 30 days from the date on which the Client accepts the Quote and these Terms and Conditions.
4.2. NKLD shall be entitled to vary any quotation previously provided to the Client if:-
4.2.1. the Client provides incomplete or inaccurate information to NKLD preventing NKLD from providing an accurate quote;
4.2.2. NKLD experiences delays in providing the Services by virtue of any action or inaction on the part of the Client where such delay is in excess of thirty days from the date of this Agreement;
4.2.3. any works previously carried out by other persons upon the site or Site interferes with or prevents NKLD from providing the Services in accordance with the timeframe as required by this Agreement;
4.2.4. at the Client’s request, NKLD agrees to provide Additional Items at any time after the commencement of this Agreement; and
4.2.5. any cause beyond NKLD’s control causing the necessary variation.
4.3. If any supply by NKLD is subject to Design Services Tax (“GST”), the Client must, unless the price in the Quote expressly states that GST is included, pay the relevant GST amount in addition to the amount appearing in the Quote.
5. ADDITIONAL ITEMS
5.1. If the Client requests that NKLD supply or carry out Additional Items and NKLD agrees to such a request, the Additional Items will be deemed to form part of the Services and the Client must pay:
5.1.1. if NKLD has given a written quotation prior to performing or providing the Additional Items, the amount quoted; or
5.1.2. in the absence of a written quotation, an amount calculated using NKLD’s standard supply and labour rates.
5.2. The Client acknowledges and agrees that any and all Design Services that are not specifically referred to in the Quote shall constitute Additional Items.
6. Terms of Payment
6.1. The Client is required to pay a deposit to NKLD equal to 50% of the cost as quoted to the Client. The Client acknowledges NKLD is under no obligation to supply or carry out provision of the Design Services as requested by the Client until the deposit specified in the Quote is received by NKLD in full.
6.2. The Client must pay NKLD, within seven (7) days of the date of NKLD issuing an invoice for such payment to the Client, the total amount set out in the invoice/s issued by NKLD to the Client whether for the remainder of the Contract Sum and/or the value of any Additional Items.
6.3. NKLD may, its absolute discretion, seek and recover from the Client and the Client agrees to pay:
6.3.1. interest on all overdue invoices at the rate of 2% per month from the date of an unpaid invoice;
6.3.2. any costs and expenses incurred in collecting or attempting to collect any amounts that are not paid by the Client when due including debt collector’s expenses, and solicitor’s fees on a solicitor/client basis.
7. LIMITATION OF LIABILITY
7.1. All liability and obligations imposed under statute are expressly excluded but only to the extent that this exclusion does not contravene the statute or cause any part of the Agreement to be void.
7.2. To the maximum extent permitted by law:
7.2.1. NKLD will not be liable to the Client or any other person or third party in respect of any consequential or other loss or damage (including loss of profit, loss of income or loss to reputation) arising directly or indirectly from the provision of Design Services under this Agreement;
7.2.2. NKLD’s liability arising out of a connection with this Agreement whether under the law of contract, in tort, in equity under statute or otherwise shall be limited in aggregate to an amount equal to the Contract Sum;
7.2.3. NKLD shall not be liable to the Client for any statements, representations, guarantees, conditions or warranties not expressly contained in the Quote.
8. Suspension and/or Termination by NKLD
8.1. NKLD shall be entitled to suspend and/or terminate the supply of Design/or Services forthwith by written notice to the Client upon the happening of any one of the following events:
8.1.1. where full payment of any invoice issued by NKLD to the Client whether for the whole or part of the Contract Sum and/or the value of any Additional Items has not been received by NKLD in keeping with clause 6.1and 6.2 above;
8.1.2. where the Client, being an individual, commits an act of bankruptcy or, being a corporation goes into liquidation or has a receiver or administrator appointed to control its affairs, is deemed unable to pay its debt or has a petition presented for its winding up or for an administrative order; or
8.1.3. where the Client is in material breach of any of the Terms and Conditions and:-
(a) NKLD has given the Client a written notice demanding the breach be remedied within fourteen (14) days and the Client fails to comply with such notice; or
(b) such breach cannot be remedied; or
(c) such breach evinces an intention on the part of the Client that it does not wish to be bound by the terms of this Agreement.
8.2. Any suspension and/or termination shall be without prejudice to and shall not affect any rights of NKLD against the Client that have accrued up to the time of suspension or termination (as the case may be).
9. Variation and/or Termination by the CLIENT
9.1. The Agreement may only be cancelled and/or varied by the Client with the written consent of NKLD.
9.2. To the extent permitted by law, NKLD may require, as a condition of such consent, that the Client pay reasonable charges for such cancellation/variation, which takes into account expenses incurred by NKLD to the date of cancellation and/or variation.
10. PRIVACY
10.1. The Client hereby authorizes NKLD to collect, retain, record, use and disclose consumer and/or commercial information about the Client, in accordance with the Privacy Act 1988 (Cth).
11. DISPUTE RESOLUTION
11.1. Without prejudice to either party’s rights under and relevant legislation in South Australia regulating building work, both parties agree that:
11.1.1. the Client and NKLD will initially use all reasonable endeavours to resolve any dispute arising under this Agreement within 10 Business Days of a party being advised by written notice of such a dispute;
11.1.2. in the event that the parties are unable to resolve the dispute within the above timeframe, the parties may either agree to refer the matter to mediation or some other form of alternative dispute resolution or commence legal proceedings.
12. APPLICABLE LAW
12.1. The Agreement is governed by the laws of South Australia and the parties submit to the exclusive jurisdiction of the Courts of South Australia.
13. MISCELLANEOUS
13.1. Any and all statutory and local governments consents (including but not limited to planning or building approvals) relevant to the implementation of the Design Services must be obtained by the Client at its sole cost.
14. SEVERANCE
14.1. If any part of this Agreement is found to be void, voidable or not enforceable, that part shall be struck out without affecting or eroding the enforceability or validity of the remaining parts and such severance shall not detract from the obligations each party has under this Agreement.
15. ENTIRE AGREEMENT
15.1. This Agreement contains the entire agreement between NKLD and the Client. The parties agree that any negotiations that lead to the formation of this Agreement have been accurately incorporated in this Agreement.
15.2. In entering into this Agreement, the parties hereby acknowledge that they have not made any warranties or representations to each other except as incorporated in this Agreement.
16. GUARANTEE
16.1. The person signing this Agreement on behalf of the Client hereby guarantees the payment of all monies that become due and payable under this Agreement. This guarantee will continue following the termination of this Agreement until all monies owing to NKLD are paid in full.
17. NOTICES
17.1. A notice from one party to another shall be deemed to have been served upon the receiving party if:-
17.1.1. the notice is delivered personally to the other party;
17.1.2. the notice is delivered by facsimile to the other party and the sending party receives a delivery confirmation upon transmission of the facsimile; or
17.1.3. the notice is posted to the other party to the address provided in the Quote, whereby delivery will be deemed to have occurred on the third business day following the posting of the notice.