Site Conditions

Land Ownership

1. The Client agrees that they shall upon request from Wellgevity provide evidence that:

   1. they are the owner of the land and premises upon which the Works are to be undertaken; or

   2. where they are a tenant, that they have the consent of the owner for the work/materials to be installed on the land and premises upon which the works are to be undertaken.

2. It is very important and the sole responsibility of the Client to ensure Wellgevity are made aware of any special/statutory by laws/conditions/permissions that may be involved.

3. Wellgevity accepts no responsibility for works that have been carried out on land that is not under the ownership of the Client and it is assumed that all planning laws or regulations have been applied before the commencement of any works.

4. The Client acknowledges and agrees that in the event Wellgevity require access, in order to undertake the Works, to an adjoining or adjacent property or land to the nominated job site, that is not owned by the Client, then it is the Client’s responsibility to gain permission from the land owner to use the above-mentioned property throughout the process or delivering the Works. In the event the land owner denies access or use of the land or property, the Client shall be liable for all costs incurred by Wellgevity in gaining permission to access and/or use the property through any legal process that may be deemed necessary.

UNDERGROUND UTILITIES

1. Prior to the commencement of any Works, the location of underground services must be identified. “Dial Before You Dig” or an equivalent licensed service locator must be consulted and any known underground services clearly marked on the Site.

2. The Client must advise Wellgevity in writing of the precise location of all underground services on the Site prior to commencement of the Works. This includes, but is not limited to, electrical services, gas services, sewer services, stormwater systems, pumping services, sewer connections, water mains, irrigation pipes, telephone cables, fibre optic cables and any other underground infrastructure that may exist on the Site.

3. Whilst Wellgevity will take reasonable care to avoid damage to underground services during the Works, Wellgevity will not be responsible for any damage to, or costs associated with, underground services, hazards, obstructions or site conditions that were not accurately disclosed, located or clearly marked prior to the commencement of the Works, or that were not reasonably visible during visual inspection of the Site.

4. The Client agrees to indemnify and hold harmless Wellgevity against any claims, loss, damage, costs, penalties or expenses arising from damage to underground services that were not correctly identified, located, marked or disclosed prior to the commencement of the Works.

5. If the Client requests Wellgevity to arrange a licensed underground service locator, this service will be treated as a variation and charged in addition to the quoted Works.

Access

1. The Client must provide Wellgevity with clear and free access to the Site during working hours and provide suitable space for the storage of materials during the contract period.

2. The Client shall ensure that Wellgevity has clear and free access to the work site at all times to enable them to undertake the Works. The Client acknowledges that landscaping works may require the use of machinery and equipment which may cause minor disturbance to lawns, driveways, paving or other surfaces. Wellgevity will take reasonable care when accessing the Site but will not be responsible for minor damage reasonably caused by normal construction activities unless due to negligence.

Contractor Responsibilities

1. Wellgevity provides a standard 12-month workmanship warranty on all works completed by Wellgevity.

2. Any addition and/or alterations to the schedule/project shall be discussed with the Client and agreed upon in writing.

Client’s Responsibilities

1. It is the Client’s responsibility to ensure that all Materials which Wellgevity is required to install are of the correct type, size, rating, standard, quality, colour and finish, and are as specified in the specifications, drawings and plans upon which Wellgevity based the quotation on and therefore, the Client agrees to indemnify Wellgevity against any costs incurred by Wellgevity in rectifying such errors if required.

2. The Client shall provide water and electricity, if needed, at no charge to Wellgevity​.

3. Upon practical substantial completion the responsibility for the care and watering of all plants, lawns, etc., is handed over to the Client and will require regular attention until established.

4. Wellgevity is not responsible for the removal of trade waste (including, but not limited to, contaminated soil stockpiling of excess spoil) from or clean-up of the building/constructions site/s. This is the responsibility of the Client or the Client’s agent. If required, this can be quoted as a variation.

Project Delivery

Delivery of the Works

1. Any time specified by Wellgevity for delivery of the Works is an estimate only and Wellgevity will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However, both parties agree that they shall make every endeavour to enable the Works to be supplied at the time and place as was arranged between both parties. In the event that Wellgevity is unable to supply the Works as agreed solely due to any action or inaction of the Client, then Wellgevity shall be entitled to charge a reasonable fee for re-supplying the Works at a later time and date, and/or for storage of the Materials.

2. Where the Client requires the Works to be rescheduled or cancelled, the Client is required to provide Wellgevity with at least forty-eight (48) hours’ notice prior to the scheduled commencement time.

3. The Works’ commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that Wellgevity claims an extension of time (by giving written notice to the Client) where completion is delayed by events beyond Wellgevity’s reasonable control. These events may include, but are not limited to:

   1. failure by the Client to make required selections or approvals;

   2. the Site not being ready for the Works;

   3. the Client failing to notify Wellgevity that the Site is ready;

   4. adverse weather conditions;

   5. delays in the supply or delivery of materials;

   6. labour shortages; or

   7. any other circumstances beyond Wellgevity’s reasonable control.

4. Wellgevity recommends that where additional work is to be performed by third parties after the completion of Wellgevity’s Works, that such scheduling allows for any delays that may affect Wellgevity satisfactorily completing the Works in the proposed timeframe.

5. Delays caused by other companies on site may cause work to be rescheduled and charges may be made in certain circumstances.

Materials

1. Wellgevity and the Client agree that ownership of the Materials shall not pass until:

   1. the Client has paid Wellgevity all amounts owing to Wellgevity; and

   2. the Client has met all of its other obligations to Wellgevity.

2. Wellgevity are not able to accept responsibility for the well-being and maintenance of living plant material, including turf, following practical substantial completion unless a maintenance contract is in existence. Maintenance is not included in the contract unless specified.

3. If necessary, Wellgevity reserve the right to substitute any plant with another of equal value and growth/habitat/colour in accordance with the specification

4. All materials, plants, turf, paving, structures and other items supplied by Wellgevity remain the property of Wellgevity until full payment of all amounts owing under the contract has been received. If payment is not made in accordance with the agreed payment terms, Wellgevity reserves the right to enter the Site and recover or remove any materials supplied by Wellgevity to the extent permitted by law. Any costs incurred by Wellgevity in recovering such materials, including labour, transport, repair or reinstatement costs, will be the responsibility of the Client.

5. Wellgevity does not accept liability for efflorescence, colour or size variation in the products and materials which will be purchased or delivered as part of the work completed. Wellgevity provides no warranty and accepts no liability whatsoever in respect of the condition or quality of the products and materials that are purchased and delivered to site from the supplier.

6. The ​ Client ​indemnifies Wellgevity for any and all future liabilities, losses, damages, costs or expenses which may be suffered, incurred or associated as a result of anything that may occur beyond the purchase of products and materials that are purchased and delivered as part of the project.

7. Wellgevity will not be responsible or liable for any structural considerations, the appearance of finish features, or overall management of works where an outside party has provided advice, drawings, or supervision, unless agreed to in writing by the Wellgevity prior to the start of the project.

8. The Client further acknowledges that Materials supplied may:

   1. fade or change colour over time; and

   2. expand, contract or distort as a result of exposure to heat, cold, weather; and

   3. mark or stain if exposed to certain substances; and

   4. be damaged or disfigured by impact or scratching.

practical completion & final payment

1. Practical completion occurs when the Works are substantially complete and capable of being used for their intended purpose, notwithstanding minor omissions or defects that do not prevent normal use of the Works.

2. Upon practical completion, the final invoice will be issued and payment is due in accordance with the agreed payment terms.

3. Any minor defects or outstanding items identified at practical completion will be recorded and rectified within a reasonable time; however, these items do not delay, reduce or withhold the Client’s obligation to make final payment.

General Conditions

1. All work undertaken will be discussed and agreed prior to the start date and all work will be completed from the original design by Wellgevity​ unless otherwise agreed.

2. Any service provided by Wellgevity to the Client in excess of that specified in the quotation shall be subject to further charge and performed as soon as reasonably practicable.

3. The quotation includes only the works specifically described in the quotation. Any additional work not included in the quotation will be treated as a variation and charged accordingly.

4. Maintenance is not included in the contract unless specified.

5. These terms and conditions shall apply to the contract to the exclusion of any terms and conditions used by the Client.

6. No variation of these terms and conditions shall be binding on Wellgevity unless in writing and signed by the Client and a director of Wellgevity.

PRICE AND PAYMENT

Quotations

1. Unless otherwise stated in writing, quotations provided by Wellgevity are valid for fourteen (14) days from the date of issue. Wellgevity reserves the right to amend pricing after this period due to changes in labour, material or supplier costs.

2. Quotations are based on the estimated scope of work required to deliver the agreed project outcome. The quoted price reflects the value of the completed works rather than the number of hours spent completing them. If the Works are completed in less time than estimated due to favourable conditions or operational efficiency, the agreed quoted price will still apply.

PAYMENT TERMS

1. The Client is responsible for all payments to Wellgevity, unless otherwise agreed in writing prior to the commencement of the Works.

2. Accepted payment methods include cash, internet bank transfer or cheque. Wellgevity does not accept payment plans or “gifts” or items of value as payment.

3. Receipt of any form of payment other than cash will not be deemed payment until such payment has been honoured, cleared, or recognised by the financial institution

4. Time for payment for the Works being of the essence, the Price will be payable by the Client on the date or dates determined by Wellgevity, which may include:

1. payment in full upon completion of the Works;

2. payment prior to the delivery of the Works or

3. by way of progress payments in accordance with the payment schedule specified in the quotation or contract issued by Wellgevity. Payments may be required at various stages of the project, which may include:

1. A deposit payable upon acceptance of the quotation and prior to commencement of the Works. This enables materials to be ordered and secures the project within Wellgevity Landscapes’ construction schedule.

2. Progress payments during the course of the project, reflecting the value of work completed and materials supplied or delivered to site.

3. Final payment due upon completion of the Works and prior to project handover, unless otherwise agreed in writing.

4. Progress payment claims may include the reasonable value of authorised variations and the value of materials delivered to the site but not yet installed.

5. Invoices are payable within seven (7) days of issue, unless otherwise stated in writing.

6. All payment schedules and deposit requirements will be structured in accordance with applicable Western Australian building contract legislation and guidelines administered by Building and Energy (WA Building Commission) where applicable.

VARIATIONS AND PRICE ADJUSTMENTS

1. Extra charges will apply if the Client changes their mind after the service is completed and or changes mind on products after they have been delivered.

2. Wellgevity reserves the right to change the Price:

1. if a variation to the Materials which are to be supplied is requested; or

2. if a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or

3. where additional Works are required due to the discovery of hidden or unidentifiable difficulties which are beyond Wellgevity’s ability to accurately assess (including, but not limited to, poor weather conditions, limitations to accessing the site, sub-surface soil conditions (such as hard rock barriers such as limestone below the surface, tree stumps or iron reinforcing rods in concrete), obscured site defects, hidden services, additional site works requiring shoring, piling, piering, propping, under-pinning, remobilising or work site, soil stabilisation (if not included in the contract), or additional engineering required to acquire building license and/or imposed by site conditions or council requirements,) remobilisation of the work site, removal of excess soils or rubble etc) which are only discovered on commencement of the Works; or

4. in the event of increases to Wellgevity in the cost of labour or materials which are beyond Wellgevity’s control.

NON-PAYMENT

1. The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Wellgevity nor to withhold payment of any invoice because part of that invoice is in dispute.

2. Failure to make payment in accordance with the contract terms may result in suspension of further works, withholding of warranties, and recovery of outstanding amounts through debt recovery processes including the interest, legal fees and recovery costs where applicable.

3. The Client agrees to indemnify Wellgevity for all reasonable costs incurred in recovering overdue amounts, including but not limited to legal costs, debt collection agency fees and administrative recovery costs.

Late Payment Interest

1. Payment is due within 7 days from the invoice date. Any overdue amounts will incur interest at a rate of 2% per month (24% per annum), calculated daily from the due date until full payment is received. This charge represents a genuine pre-estimate of the costs and losses incurred by Wellgevity as a result of late payment

Cancellation

1. If the Client cancels the Works less than fourteen (14) working days prior to the agreed commencement date, Wellgevity reserves the right to charge a cancellation fee equal to fifteen percent (15%) of the quoted contract price, plus the cost of any materials already purchased, ordered, or committed to for the project which cannot be returned or cancelled.

2. Cancellation of the Works must be provided to Wellgevity in writing.

3. Where materials or products have been specially ordered, custom manufactured, or produced to the Client’s specifications, cancellation will not be accepted once production has commenced or an order has been placed with the supplier. The Client will remain responsible for the full cost of such materials.

4. Without prejudice to any other rights available to Wellgevity, if the Client breaches any obligation under these Terms and Conditions, including failure to make payment when due, Wellgevity may suspend or terminate the Works. Wellgevity will not be liable for any loss or damage suffered by the Client as a result of exercising this right.

5. Wellgevity reserves the right to cancel any contract prior to commencement of the Works by providing written notice to the Client. In such circumstances, Wellgevity will refund any payments received from the Client, less the value of any Works already completed or costs already incurred.

6. Where the Client cancels the Works after commencement, the Client will be liable for the value of all Works completed to the date of cancellation, together with any materials purchased, ordered, or delivered to the Site, and any reasonable costs incurred by Wellgevity as a result of the cancellation.

Risk

Site Delays

1. Delays caused by other companies on site may cause work to be rescheduled and charges may be made in certain circumstances.

MATERIALS (SUPPLY ONLY)

1. Where Wellgevity is supplying Materials only, all risk for the Materials shall immediately pass to the Client on delivery and the Client must insure the Materials on or before delivery. Delivery of the Materials shall be deemed to have taken place immediately at the time that either;

1. The Client or the Client’s nominated carrier takes possession of the Materials at Wellgevity’s address; or

2. the Materials are delivered by Wellgevity or Wellgevity’s nominated carrier to the Client’s nominated delivery address (even if the Client is not present at the address).

RISK DURING CONSTRUCTION

1. Where Wellgevity is supplying and installing Materials as part of the Works, Wellgevity maintains a Contract Works Insurance policy covering material damage to the Works and Materials supplied by Wellgevity during the course of construction until practical completion. Upon practical completion of the Works, all risk and responsibility for the Works and Materials Immediately passes to the Client.

1. If the Client specifically requests Wellgevity to leave Materials outside Wellgevity’s premises for collection or to deliver the Materials to an unattended location then such materials shall always be left at sole risk of the Client and it shall be the Client’s responsibility to ensure the Materials are insured adequately or at all. In the event that such Materials are lost, damaged or destroyed then replacement of the Materials shall be at the Client’s expense.

2. Where the Client has supplied materials for Wellgevity to complete the Works, the Client acknowledges that they accept responsibility for the suitability of purpose, quality and any faults inherent in the materials. Wellgevity shall not be responsible for any defects in the materials, any loss or damage to vegetation (or any part thereof), howsoever arising from the use of materials supplied by the Client.

Storage of Materials on Site

1. Where materials, equipment or plant supplied by Wellgevity are delivered to or stored at the Site prior to installation, the Client must ensure the Site is secure and provide a safe storage area. Wellgevity will not be responsible for any loss, theft, vandalism or damage to such items. Any replacement of stolen or damaged materials will be treated as a variation and charged to the Client.

STRUCTURAL SUITABILITY

1. Where Wellgevity is required to install the Materials the Client warrants that the structure of the premises or equipment in or upon which these Materials are to be installed or erected is sound and will sustain the installation and work incidental thereto and Wellgevity shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising should the premises or equipment be unable to accommodate the installation (including but not limited to insufficient or defective foundations, walls or other structures not erected by Wellgevity).

CLIENT FAILURE TO FOLLOW ADVICE

1. Where Wellgevity provides advice or recommendations to the Client or the Client’s agent regarding the suitability of weeds, grass or site conditions (including moisture levels or weather conditions), and such advice is not followed, Wellgevity will not be liable for any resulting loss or damage and any warranties, resupply or defect obligations will not apply.

WEATHER AND ENVIRONMENTAL CONDITIONS

1. After practical substantial completion, Wellgevity are not able to accept responsibility for any damage through the elements, including drought, winds, rain and frost to any products or material(s) including plants.

2. Severe weather conditions, including drought, storms, lightning, acts of God, flooding, earthquake, may cause the delay of visits but this will not affect the original, agreed price.

Third Party Damage

1. Wellgevity will not be responsible for any damage to the Works caused by third parties, including but not limited to builders, tradespersons, contractors, delivery personnel or other persons attending the Site after Wellgevity has completed or substantially completed the Works. Any repairs required as a result of such damage will be treated as additional Works and charged accordingly.

Confidentiality

1. Each party shall keep confidential in all processed, information or data disclosed to it which belongs to the other and shall not disclose the same to any person, firm or company without prior written authority of the other party.

DISPUTE RESOLUTION

1. In the event of any dispute arising out of or relating to the Works or these Terms and Conditions, the parties agree to first attempt to resolve the dispute through good faith negotiation. If the dispute cannot be resolved within fourteen (14) days, the parties agree to refer the matter to mediation before commencing legal proceedings, except where urgent legal action is required.

LIMITATION OF LIABILITY

1. To the maximum extent permitted by law, Wellgevity’s liability arising from or in connection with the Works, whether in contract, tort or otherwise, shall be limited to the total value of the contract for the Works supplied.

Governing Law

1. These terms and conditions are governed by and construed in accordance with the laws of Western Australia.

2. We retain the right to bring proceedings against you for breach of these Terms and Conditions, in provision to Courts of WA.

Accepting Terms and Conditions

By accepting the quotation provided by Wellgevity, the Client accepts these terms and conditions and all aspects of the agreed contract that make up these terms and conditions.

I agree and accept the above terms and conditions & quotation provided by Wellgevity.