Landworx Services – Terms & Conditions of Trade

These Terms & Conditions apply to services supplied by Landwork Services Pty Ltd trading as Landworx Services (“Landworx”, “Contractor”, “we”, “us” or “our”).

1. Definitions

Client means the person, company, entity or other party requesting, authorising or receiving the Works.

Works means any excavation, earthworks, site preparation, vegetation management, forestry mulching, mowing, slashing, tree work, land clearing, weed spraying, dam works, drainage, material handling, haulage and other related services undertaken by Landworx.

Site means the property, worksite or location at which the Works are undertaken.

Equipment means machinery, vehicles, attachments, tools and other equipment used by Landworx.

Quote means any written quotation, estimate, scope, rate schedule or proposal supplied by Landworx.

Variation means any change to the Works, Site conditions, quantities, methodology, machinery, labour, materials or scope after a Quote has been issued or the Works have commenced.

2. Acceptance and Application

By:

• accepting a Quote;

• booking Works;

• requesting mobilisation;

• paying a deposit;

• giving instructions for Works to commence; or

• allowing Landworx to commence Works,

the Client accepts these Terms & Conditions.

These Terms apply to all Works unless otherwise expressly agreed in writing.

The specific description, pricing and scope contained in a Quote take precedence over these Terms where there is an inconsistency relating specifically to that project.

Any terms contained in a Client purchase order or other document do not override these Terms unless expressly accepted by Landworx in writing.

Nothing in these Terms excludes, restricts or modifies any right, guarantee or remedy which cannot lawfully be excluded under the Australian Consumer Law or other applicable legislation.

Where Works are subject to mandatory requirements under the Home Building Act 1989 (NSW), Building and Construction Industry Security of Payment Act 1999 (NSW) or other legislation, those mandatory requirements prevail to the extent of any inconsistency.

3. Quotes, Pricing and Estimates

3.1 Pricing Methods

Landworx may provide pricing using one or more of the following methods.

A. Hourly Rate

An hourly rate may be provided for machinery, attachments, vehicles and/or labour.

The Client is charged for actual chargeable time incurred together with applicable transport, materials, disposal and other agreed costs.

Hourly work is not a guarantee that a particular quantity of work will be completed within a particular number of hours.

B. Quoted Estimate

A Quoted Estimate is an estimate only and is not a fixed-price quotation.

A Quoted Estimate provides the Client with an indication of the anticipated time and cost required to complete the Works based on:

• the scope discussed;

• Site conditions visible or known at the time;

• information supplied by the Client;

• Landworx’s experience with comparable work; and

• Landworx’s normal applicable hourly machinery and labour rates.

The estimated amount represents Landworx’s reasonable assessment of how long the Works are likely to take and the likely resulting cost.

The final price is calculated using the actual chargeable hours incurred and the applicable hourly rates, together with any applicable materials, transport, disposal or other charges.

Accordingly, the final amount invoiced may be lower than, equal to, or higher than the Quoted Estimate.

Landworx generally aims to complete Works at or below the estimated amount where reasonably achievable. However, earthmoving, vegetation management, land clearing and similar Works can involve conditions which are difficult or impossible to accurately assess before machinery begins operating.

Factors affecting the final duration or cost may include:

• rock or bedrock;

• underground obstructions;

• buried rubbish or structures;

• groundwater;

• unstable or unexpected soil;

• difficult terrain;

• vegetation density differing from that anticipated;

• access restrictions;

• weather;

• changes requested by the Client;

• inaccurate information supplied by the Client;

• additional materials being required; or

• other circumstances which could not reasonably have been identified beforehand.

A Quoted Estimate should therefore be viewed as a reasonable indication of anticipated time and cost rather than a guarantee of the final amount.

C. Fixed Price Quote

A Fixed Price Quote is the only pricing method under which Landworx agrees to complete the defined Works for a fixed amount, subject to these Terms.

Where Landworx expressly identifies a Quote as a Fixed Price Quote, the quoted price will be maintained provided that:

• the agreed scope remains materially unchanged;

• Site conditions are substantially consistent with those disclosed or reasonably apparent when the Quote was prepared;

• the Client does not request additional or altered Works; and

• no significant unforeseen or concealed conditions arise which materially alter the Works required.

A Fixed Price Quote applies only to the scope and conditions expressly identified in the Quote.

Unless expressly included, a fixed price does not include additional Works resulting from:

• changed Site conditions;

• concealed or underground conditions;

• undisclosed hazards or structures;

• changes requested by the Client;

• additional materials;

• additional disposal;

• changes in access;

• additional machinery or labour; or

• Works outside the agreed scope.

Such Works constitute a Variation.

Where applicable law requires a Variation to be documented or signed before it is undertaken, Landworx will comply with those requirements.

3.2 Additional Machinery and Labour

Where machinery, attachments, trucks, labour or other services not included in the original Quote are reasonably required or requested during the Works, they will be charged at Landworx’s applicable standard rate unless another rate is agreed.

The fact that an item of machinery or labour was not separately listed in an original hourly-rate Quote does not mean that additional machinery or labour subsequently requested by the Client is included free of charge.

Landworx will obtain Client approval before significant additional expenditure where reasonably practicable.

3.3 Machine Servicing, Greasing, Refuelling and Warm-Up

Unless otherwise stated, machinery will arrive at the Site for initial commencement appropriately fuelled, greased and prepared for operation.

After commencement, time reasonably required for:

• machine warm-up;

• daily or scheduled greasing;

• refuelling;

• attachment servicing;

• routine operational checks; and

• similar normal servicing required to continue the Works

forms part of chargeable working time.

Such time is charged at the same applicable hourly machine or activity rate being undertaken.

For normal daily operations, this servicing, greasing, refuelling and warm-up time will generally be no more than approximately 15 minutes per machine per day, unless additional time is reasonably required because of Site conditions, extended operating hours, unusual servicing requirements or another operational circumstance.

This reflects the fact that routine servicing, greasing, refuelling and warm-up are necessary parts of operating heavy machinery safely and reliably.

3.4 Fuel Price Adjustment

Landworx’s rates are based on prevailing fuel prices at or around the date a Quote is issued.

Where the diesel price reasonably applicable to the Works increases by $0.25 per litre or more compared with the price applicable when the Quote was prepared, Landworx may apply a reasonable fuel surcharge.

Any surcharge will be limited to reasonably reflecting the increased fuel cost attributable to the Works and will not be used as a general price increase.

Where reasonably practicable, Landworx will notify the Client of the surcharge before significant additional costs are incurred.

3.5 Materials

Where Landworx supplies materials, a markup of up to 20% of cost price may be applied to cover procurement, handling, coordination, administration and associated costs.

Quoted quantities of gravel, soil, clay, bentonite, mulch, rock, aggregates or similar materials are estimates unless expressly stated otherwise.

Additional material required beyond the quoted quantity is chargeable.

Delivery, freight and handling charges may also apply.

4. Payment

Payment is due within 72 hours of invoice issue, unless different payment terms are expressly stated in writing.

Landworx may require:

• deposits;

• material payments;

• mobilisation payments; or

• other pre-start payments

before committing machinery, transport, materials or labour to a project.

For larger projects, Landworx may issue progressive invoices, including invoices in increments of up to approximately $10,000, or at other reasonable milestones.

Each progressive invoice is separately payable under the applicable payment terms.

4.1 Disposal and Tip Fees

Unless expressly included in a Quote, disposal, landfill, waste facility and tip fees are payable by the Client.

They may be invoiced:

• by Landworx where Landworx incurs the cost; or

• directly by the relevant facility.

4.2 Overdue Accounts

If an amount is overdue, Landworx may:

• charge interest at 10% per annum calculated daily;

• suspend or postpone Works;

• decline further bookings;

• require payment in advance before recommencing;

• refer the debt to a collection agency or solicitor; and

• commence recovery proceedings.

The Client must reimburse Landworx for reasonable costs actually incurred in recovering overdue amounts, to the extent permitted by law, including reasonable:

• debt collection costs;

• legal costs;

• court filing fees;

• service fees; and

• enforcement expenses.

These rights are in addition to any rights Landworx may have under the Building and Construction Industry Security of Payment Act 1999 (NSW) or other legislation.

The Client may not withhold an undisputed portion of an invoice because another portion is disputed.

Set-off against amounts owed to Landworx is not permitted unless agreed in writing or required by law.

4.3 Ownership of Materials

To the extent legally permitted, ownership of materials supplied by Landworx does not pass to the Client until those materials have been paid for in full.

5. Scheduling, Mobilisation, Cancellation and Standby

Scheduled commencement and completion dates are estimates unless expressly agreed otherwise.

Where a Client cancels or postpones Works after Landworx has reasonably incurred costs or committed resources to the project, the Client remains responsible for reasonable non-recoverable costs already incurred, including where applicable:

• mobilisation;

• transport;

• float costs;

• specifically ordered materials;

• third-party charges; and

• work already performed.

Where Landworx attends the Site but is unable to perform the Works because the Site is not ready, access has not been provided, other contractors prevent access, required information has not been supplied or another matter within the Client’s control prevents work, reasonable waiting or standby time may be charged at the applicable rate.

6. Scope Changes and Variations

Landworx is engaged to perform the scope discussed, inspected and/or described in the Quote.

If the Client changes that scope after mobilisation or commencement, Landworx may:

• accept the Variation;

• provide revised pricing;

• require additional machinery, labour or materials;

• postpone the additional work;

• decline the Variation; or

• cease Works if the proposed change materially alters the nature, risk or commercial basis of the project.

Landworx is not obliged to undertake work materially different from the work originally agreed.

If the Client chooses to cancel the remaining Works because Landworx declines a changed or additional scope, all Works completed and reasonable costs incurred up to that point remain payable.

Where unexpected Site conditions make additional Works necessary, Landworx will advise the Client as soon as reasonably practicable.

Emergency or safety work reasonably necessary to prevent injury or immediate property damage may be undertaken where obtaining prior approval is impracticable, subject to applicable law.

7. Client Authority and Instructions

The Client warrants that they:

• own the Site; or

• have authority from the owner or other relevant party to authorise the Works.

Landworx is entitled to rely on instructions given by the Client or a person reasonably appearing to be authorised by the Client.

The Client is responsible for ensuring instructions concerning boundaries, areas to clear, excavation locations, levels and areas to remain untouched are accurate.

8. Site Preparation and Rubbish

Unless rubbish removal or Site clearing is expressly included in the Quote, the Client must ensure the work area and access routes are reasonably clear before Landworx arrives.

This includes removal, where applicable, of:

• household rubbish;

• loose scrap;

• building rubbish;

• stored materials;

• personal belongings;

• vehicles;

• trailers;

• loose fencing material;

• garden furniture;

• toys;

• animal equipment; and

• other items not intended to form part of the Works.

Landworx is not responsible for general rubbish clearing, sorting or disposal unless expressly engaged to perform that service.

If rubbish or debris interferes with the Works, Landworx may:

• work around it;

• require the Client to remove it;

• stop work until it is removed; or

• agree to remove it as additional chargeable work.

Additional disposal and tip fees remain payable by the Client.

9. Client Disclosure of Site Hazards

The Client must disclose all known or reasonably suspected hazards, structures and conditions which could affect the Works.

This includes, without limitation:

• septic tanks;

• septic trenches;

• absorption beds;

• sewer systems;

• water tanks;

• underground tanks;

• wells;

• bores;

• pits;

• culverts;

• drainage systems;

• irrigation lines;

• poly pipe;

• electrical cables;

• gas lines;

• communications cables;

• buried concrete;

• old foundations;

• retaining structures;

• underground rooms or structures;

• old fence lines;

• star pickets;

• buried rubbish;

• scrap metal;

• contaminated soil;

• asbestos-containing material;

• unstable fill;

• previous excavation;

• springs;

• groundwater; and

• other underground or concealed hazards.

The Client must clearly identify or mark such items where reasonably practicable.

Landworx is not responsible for damage to an undisclosed or incorrectly located object or structure to the extent that the damage results from the Client’s failure to disclose or accurately identify it.

For example, if an undisclosed septic tank, underground pipe, buried structure or similar item is driven over or struck during otherwise reasonable machinery operations, Landworx is not responsible for resulting damage to the extent permitted by law.

Nothing in this clause excludes liability for loss caused by Landworx’s negligence or any liability which cannot lawfully be excluded.

Reasonable repair, recovery, delay or machinery costs arising from an undisclosed hazard may be charged where caused by the Client’s failure to disclose that hazard.

10. Underground Services and Before You Dig Australia

Before You Dig Australia plans assist in identifying registered underground infrastructure but generally provide indicative rather than precise physical locations.

The Client is responsible for identifying all underground services which may be affected by the Works.

Where excavation will occur in an area where underground services may be present, the Client must arrange, at the Client’s cost unless otherwise agreed, for a suitably qualified underground-service locator to locate and mark those services.

Services include, without limitation:

• electricity;

• telecommunications;

• fibre;

• gas;

• sewer;

• stormwater;

• water;

• irrigation;

• pumping infrastructure;

• drainage;

• fuel lines; and

• private services not appearing on BYDA plans.

Landworx may assist with obtaining BYDA information but doing so does not constitute precise service location.

Landworx is not responsible for damage to the extent caused by:

• an undisclosed service;

• an incorrectly marked service;

• inaccurate information;

• a service outside its indicated location;

• an unregistered private service; or

• a service installed at an unexpected or non-compliant depth.

Nothing in this clause excludes liability caused by Landworx failing to exercise legally required care and skill.

11. Boundaries, Levels and Set-Out

Unless Landworx is expressly engaged to undertake surveying or set-out, the Client is responsible for accurately identifying:

• property boundaries;

• easements;

• clearing boundaries;

• excavation limits;

• required levels;

• building locations; and

• other critical dimensions.

Where exact location or level is important, the Client should engage an appropriately qualified surveyor or other professional.

Landworx may rely upon pegs, marks, instructions, plans or levels supplied by the Client or the Client’s representatives.

Landworx is not responsible for Works being performed in an incorrect location where Landworx reasonably followed inaccurate Client-supplied information or set-out.

12. Unknown Ground and Site Conditions

Earthmoving and land-clearing Works inherently involve conditions that may not be visible before work commences.

Unknown conditions may include:

• rock or bedrock;

• underground concrete;

• buried structures;

• historical dumping;

• buried machinery or scrap;

• old foundations;

• unknown fill;

• contaminated material;

• groundwater;

• springs;

• reactive soils;

• unstable ground;

• buried tree material;

• undocumented drainage; and

• other concealed conditions.

Landworx does not warrant that all such conditions will be identified during a Site inspection.

Where encountered, they may increase:

• work time;

• machinery requirements;

• materials;

• disposal;

• transport;

• labour;

• wear;

• recovery requirements; and

• overall project cost.

These additional requirements constitute Variations where outside the agreed scope.

13. Contamination, Asbestos and Hazardous Materials

The Client must disclose any known or suspected contaminated, hazardous or asbestos-containing material before Works begin.

If Landworx encounters suspected asbestos, contaminated soil, chemical waste, hazardous material or other material which may create a safety or environmental risk, Landworx may immediately suspend the affected Works.

Landworx may require testing, specialist advice, removal, remediation or clearance by appropriately qualified parties before recommencing.

Associated delays, specialist services, disposal and additional Works are not included in the original price unless expressly stated.

14. Site Access

The Client must provide reasonable and safe access for the machinery and vehicles required to perform the Works.

The Client must notify Landworx of known limitations including:

• narrow gates;

• weak bridges;

• culverts;

• low overhead lines;

• soft ground;

• steep access;

• unstable tracks;

• weight restrictions;

• restricted turning areas; and

• other access limitations.

Heavy machinery may damage lawns, driveways, tracks, paving, underground drainage, soft ground and similar surfaces.

Landworx will take reasonable care but cannot guarantee that Site surfaces will remain unaffected by heavy machinery.

15. Bogging, Recovery and Inaccessible or Unsafe Terrain

The operator has final operational authority concerning whether machinery can safely enter or continue working in a particular area.

Landworx may refuse, suspend or alter Works where terrain, slope, ground conditions, access, vegetation, weather or another hazard creates an unacceptable risk to:

• the operator;

• another person;

• machinery;

• vehicles; or

• property.

The Client cannot require an operator to undertake work the operator considers unsafe.

Where machinery becomes bogged or requires recovery because of Site conditions which were not reasonably apparent or were inaccurately described by the Client, reasonable:

• operator time;

• machinery time;

• recovery equipment;

• towing;

• third-party assistance; and

• transport

may be charged to the Client.

16. Forestry Mulching Safety

Forestry mulching uses high-energy rotating equipment capable of ejecting sticks, stones, metal and other material at significant velocity.

100 Metre Exclusion Zone

Unless otherwise specifically directed by the Landworx operator, all people and animals must remain at least 100 metres away from an operating forestry mulcher.

The Client is responsible for informing and assisting in keeping:

• occupants;

• family members;

• children;

• visitors;

• employees;

• subcontractors;

• neighbours entering the Site;

• livestock; and

• pets

outside the exclusion area.

No person may approach operating machinery without first obtaining the operator’s attention and confirmation that it is safe to approach.

The operator will take reasonable precautions and monitor the work area, but heavy machinery and vegetation can significantly restrict visibility and the operator cannot continuously observe every direction.

Landworx may immediately stop Works if the exclusion zone is breached.

Repeated or serious breaches may result in suspension or termination of the Works.

Nothing in this clause transfers or excludes any work health and safety obligation which legally remains with Landworx.

16.1 Property Near Mulching Operations

Vehicles, portable equipment, belongings and other valuable items should be moved well clear of active mulching operations.

Projectiles can travel significant distances and may deflect unpredictably.

Where fixed buildings, windows, fences, vehicles, infrastructure or other property remain close to the work area, Landworx may:

• change the method of work;

• require items to be moved;

• establish additional controls; or

• decline to mulch that area.

If the Client requests Works near fixed property which cannot reasonably be removed, the Client acknowledges that an inherent residual risk of projectile damage may remain despite reasonable precautions.

This acknowledgement does not exclude liability for damage caused by Landworx’s negligence or otherwise prevent rights which cannot lawfully be excluded.

16.2 Foreign Objects and Mulching Equipment

Before forestry mulching, slashing or mowing, the Client must identify and, where reasonably possible, remove:

• fencing wire;

• star pickets;

• scrap metal;

• cable;

• rope;

• netting;

• irrigation pipe;

• poly pipe;

• building waste; and

• other foreign objects.

Foreign objects can create serious safety risks and cause substantial machinery damage.

Where an undisclosed or concealed foreign object causes significant equipment damage, Landworx may recover reasonable repair, replacement and directly related downtime costs from the Client to the extent that the loss results from the Client’s failure to disclose or remove a known hazard.

17. Fence Lines and Vegetation Clearing

Clearing, mulching, mowing, slashing and tree work conducted along or near fence lines carries an increased risk of damage where vegetation is growing through, directly against, over or immediately adjacent to the fence.

17.1 Ground-Level Clearing Along Fence Lines

Where Landworx is requested to clear vegetation along a fence line, the Client acknowledges that damage may occur where:

• trees, shrubs, vines or other vegetation are growing through the fence;

• wire is embedded within vegetation;

• the fence is concealed by vegetation;

• posts or wires are deteriorated, loose or damaged;

• material must be mechanically removed from immediately against the fence; or

• vegetation cannot reasonably be separated from the fence without disturbing it.

Landworx will take reasonable care to avoid unnecessary damage.

Where a fence is reasonably maintained, clearly visible, structurally sound and substantially free from vegetation growing through or directly against it, Landworx will take reasonable precautions to preserve its integrity while undertaking ground-level vegetation clearing.

Where vegetation has grown into or through a fence, the Client acknowledges that damage to wires, posts, mesh or other fence components may be reasonably unavoidable as part of the requested clearing work.

Landworx is not responsible for such reasonably unavoidable damage to the extent permitted by law.

17.2 Tree and Branch Removal Near Fence Lines

Where the Client requests the felling, pushing, cutting or removal of a tree or branch which is above, beside or sufficiently close to a fence that falling timber or debris may strike it, the Client acknowledges that there is an inherent risk of fence damage.

The movement and fall of trees, limbs and debris cannot always be controlled with absolute precision.

Where Landworx advises, or the circumstances reasonably indicate, that a fence may be struck and the Client nevertheless requests that the Works proceed, Landworx does not accept responsibility for reasonably unavoidable damage to that fence arising from falling timber, branches or debris, to the extent permitted by law.

Nothing in this clause excludes liability for damage caused by Landworx’s negligence or a failure to exercise legally required care and skill.

18. Rock and Equipment Wear

Where mowing or mulching involves significant rock, additional wear charges may apply where disclosed in the Quote or agreed before the relevant work.

Current indicative charges may include:

Flail Mower

Replacement flails damaged by abnormal rock or foreign-object impact may be charged at the rate stated in the applicable Quote or rate schedule.

Forestry Mulchers

Additional wear charges may apply for areas containing significant rock.

Applicable charges will be identified in the Quote, rate schedule or agreed before significant additional wear costs are incurred.

19. Tree Felling and Tree Removal

Tree felling, pushing, stump removal and vegetation clearing involve inherent risks including unpredictable timber movement, falling branches, root movement and flying debris.

Clients and other persons must remain outside any exclusion zone established by the operator.

Vehicles, valuables and movable property must be removed from affected areas.

The Client acknowledges that removal or pushing of trees and stumps may cause movement or disturbance to:

• surrounding soil;

• fences;

• landscaping;

• driveways;

• underground infrastructure; and

• nearby root systems.

Landworx will take reasonable care but is not responsible for unavoidable disturbance inherent in the agreed tree-removal methodology.

The specific provisions relating to tree or branch removal near fence lines are contained in Section 17.

20. Dam Construction, Repairs, Relining and Leak Remediation

Dam repair and leak remediation are inherently dependent on existing Site and ground conditions and are not an exact science.

Unless the Quote expressly provides otherwise, work involving:

• repairing an existing dam;

• applying bentonite;

• adding clay;

• recompacting an existing wall;

• relining;

• sealing suspected leakage areas;

• reshaping an existing dam; or

• other remedial work

is performed as a reasonable attempt to improve the condition or water retention of the existing dam.

Landworx does not guarantee that an existing dam will become completely watertight or that leakage will permanently cease merely because repair or relining work has been undertaken.

Ongoing leakage may result from factors outside the area worked on, including:

• unsuitable existing material;

• porous soil;

• fractured rock;

• inadequate original core construction;

• leakage beneath the wall;

• leakage through the dam floor;

• old pipework;

• animal burrows;

• groundwater;

• geological conditions;

• previously disturbed material;

• defects elsewhere in the wall; or

• other concealed conditions.

A repair that does not completely resolve leakage does not of itself establish that the Works were defective.

Further excavation, rebuilding of part or all of a wall, additional clay, bentonite, compaction or other remedial work may be required and will constitute additional Works unless expressly included in the original Quote.

Where Landworx is engaged to construct a new dam, the scope, specifications and responsibility for that construction will be governed by the applicable Quote, agreed specifications and applicable law.

Nothing in this clause excludes Landworx’s obligation to perform Works with legally required due care and skill.

21. Weather and Environmental Conditions

Landworx may suspend or postpone Works where conditions are unsuitable or unsafe, including because of:

• rain;

• saturated ground;

• flooding;

• excessive wind;

• extreme heat;

• fire danger;

• bushfire;

• lightning;

• poor visibility; or

• other environmental conditions.

A decision to cease operating for safety or to avoid unreasonable machinery or Site damage is at the operator’s reasonable discretion.

Completion dates may be extended accordingly.

22. Machinery Breakdowns

Heavy machinery is subject to mechanical and electrical failure despite reasonable maintenance.

A bona fide machinery breakdown may delay commencement or completion of the Works.

Landworx will take reasonable steps to repair the equipment, obtain parts or provide suitable replacement equipment where commercially and practically reasonable.

Landworx is not responsible for consequential losses, third-party costs, lost income or project-delay costs resulting solely from an unforeseen machinery breakdown, to the extent permitted by law.

Unless otherwise agreed, the Client will not be charged machine operating time while machinery is incapable of performing the Works because of a Landworx machinery breakdown.

Nothing in this clause excludes liability arising from a failure by Landworx to exercise legally required care and skill.

23. Travel, Transport and Mobilisation

Landworx arranges transport of machinery using appropriate vehicles and equipment.

Mobilisation, demobilisation and machinery transport costs are chargeable unless expressly included in the Quote.

Where a project is expected to run for a full day or multiple days, travel or mobilisation may be incorporated into the quoted price.

Where a job finishes materially earlier than anticipated or mobilisation represents a significant proportion of the work, applicable transport and travel charges may still apply.

24. Permits, Approvals and Environmental Compliance

Unless expressly agreed otherwise, the Client is responsible for confirming that the proposed Works are lawfully permitted.

This includes obtaining or confirming any required:

• development consent;

• council approval;

• vegetation clearing authority;

• biodiversity approval;

• heritage approval;

• easement consent;

• environmental approval;

• landholder approval; and

• other relevant permit or consent.

The Client must disclose any known conservation agreement, biodiversity restriction, covenant, easement or similar restriction affecting the Site.

Landworx may refuse or suspend Works if there is reasonable doubt as to whether the Works are lawful.

Nothing in this clause removes Landworx’s obligation to comply with laws which apply directly to Landworx.

25. Photography and Video

The Client acknowledges that Landworx may take photographs or video of:

• machinery;

• Works in progress;

• Site conditions;

• before-and-after conditions; and

• completed Works

for record keeping, documentation, training, portfolio, website, advertising and social-media purposes.

Unless the Client advises Landworx in writing before Works commence that they do not consent to marketing use, the Client grants Landworx permission to use such photographs or video for those purposes.

Landworx will, where reasonably practicable, avoid publishing unnecessary personal or sensitive information and will generally focus photography on the Works rather than individuals.

Landworx will not intentionally identify the Client by name or publish private Client information unless separately authorised.

26. Delays and Completion Times

Unless expressly guaranteed in writing, commencement dates, completion dates and work durations are estimates.

Landworx is not responsible for reasonable delays caused by circumstances outside its reasonable control including:

• weather;

• unsafe conditions;

• machinery breakdown;

• parts availability;

• Site access;

• Client delays;

• other contractors;

• supply delays;

• material shortages;

• fire restrictions;

• regulatory requirements;

• unexpected Site conditions; and

• force majeure events.

Landworx will use reasonable efforts to minimise disruption and recommence Works when reasonably practicable.

27. Surface and Site Impact

The Client acknowledges that operating heavy machinery can cause unavoidable:

• rutting;

• compaction;

• soil disturbance;

• track marks;

• lawn damage;

• gravel displacement;

• driveway marking;

• vegetation disturbance; and

• other surface impacts.

Landworx will take reasonable care to minimise unnecessary damage.

However, normal and reasonably unavoidable surface disturbance arising from the use of machinery appropriate to the agreed Works is not considered defective workmanship.

28. Inspection, Concerns and Defects

The Client should notify Landworx of any invoice concern or apparent defect as soon as reasonably possible and preferably within 7 business days of becoming aware of it.

Landworx must be given a reasonable opportunity to inspect an alleged defect and, where appropriate, rectify defective work before another contractor is engaged to rectify the same issue.

Failure to notify Landworx within 7 business days does not extinguish any right which cannot lawfully be excluded, including applicable rights under the Australian Consumer Law or statutory building warranties.

29. Limitation of Liability

Nothing in these Terms excludes or limits liability which cannot lawfully be excluded or limited.

Subject to that qualification and to the extent permitted by law, Landworx is not liable for:

• indirect loss;

• consequential loss;

• loss of profit;

• loss of business;

• third-party delay costs; or

• losses which are remote or not reasonably foreseeable,

except to the extent caused by Landworx’s negligence, breach of contract or breach of a non-excludable statutory obligation.

Where legislation permits liability to be limited, Landworx’s liability will be limited only to the extent permitted by that legislation.

30. Client Indemnity

To the extent permitted by law, the Client indemnifies Landworx against reasonable loss, liability, damage or costs arising from:

• materially incorrect information supplied by the Client;

• undisclosed Site hazards;

• incorrectly marked boundaries or services;

• the Client’s breach of these Terms;

• unauthorised persons entering an exclusion zone;

• the Client’s failure to obtain required approvals; or

• negligent or unlawful acts of the Client or persons under the Client’s control.

The indemnity applies only to the extent that the relevant loss was caused or contributed to by those matters.

The Client is not required to indemnify Landworx to the extent the loss was caused by Landworx’s negligence, unlawful conduct or breach of a non-excludable statutory obligation.

31. Suspension and Termination

Landworx may suspend Works where reasonably necessary because of:

• non-payment;

• unsafe conditions;

• exclusion-zone breaches;

• lack of Site access;

• suspected unlawful work;

• missing approvals;

• undisclosed hazards;

• materially changed scope;

• abusive or threatening behaviour;

• interference with machinery operation; or

• another material breach by the Client.

Where the issue can reasonably be remedied, Landworx may require the Client to remedy it before Works resume.

Either party may terminate the remaining Works where permitted by the contract or general law.

If Works end before completion, the Client remains liable for:

• Works actually completed;

• materials supplied;

• transport performed;

• disposal charges;

• reasonable demobilisation;

• non-cancellable third-party costs; and

• other amounts properly incurred up to termination.

Landworx will not charge the Client for Works which were neither performed nor reasonably committed.

32. Disputes

If a dispute arises, the parties should first attempt to resolve it through direct discussion in good faith.

Nothing in this clause prevents either party from:

• exercising rights under the Australian Consumer Law;

• exercising statutory payment rights;

• seeking urgent court relief;

• applying for adjudication where available; or

• exercising another right available under law.

33. Security of Payment

Nothing in these Terms limits any entitlement Landworx may have under the Building and Construction Industry Security of Payment Act 1999 (NSW).

Where applicable, Landworx may issue payment claims, exercise suspension rights, claim applicable interest and use statutory adjudication or enforcement procedures available under that legislation.

34. Severability

If any provision of these Terms is invalid, unenforceable or void, that provision will be read down to the extent reasonably possible.

If it cannot be read down, it will be severed without affecting the remaining provisions.

35. Governing Law

These Terms and all Works undertaken by Landworx are governed by the laws of New South Wales, Australia.

The parties submit to the jurisdiction of the courts and tribunals of New South Wales.

36. Entire Agreement

The applicable Quote, these Terms, approved Variations and any other document expressly incorporated into the agreement constitute the agreement between Landworx and the Client concerning the Works.

Changes to the agreement must be agreed in writing where required by law or where the parties otherwise agree to document the change.