NEC PSC: Z clauses wording in PSC

Our potential Consultant suggested making amendments to Z clauses of professional services contract for landscape design. My first question is it allowed to make changes to Z clauses if accepted by both parties? Also, there is one change proposed that particularly is raising my concerns and it is related to clause Z3.6. Where it states The Consultant ‘indemnifies’ the Employer against claims, they propose to change it to the Consultant ‘shall be liable to’ the Employer against ‘any reasonably foreseeable fully mitigated and legally established’ claims.

The Consultant would similarly like to implement this wording in other Z clauses (Z3.8, Z11.9, Z13.3). My concern is that it is difficult to interpret what ‘reasonably foreseeable’ mean. Could you please advise if such proposed change would be acceptable? Thank you in advance for your help.

First of all, the potential Parties to a contract can agree any change they like prior to entering into a contract. They can even agree to change the conditions of contract once they have entered into the contract.

As for your second question, I/we really can’t answer that without (a) seeing what the clauses are (b) having some understanding of the project’s risk profile and © your risk profile. I suggest you consultant a lawyer or a commercial bod with good legal understanding.