Terms and Conditions
1. General
(1) All contracts for the supply of goods and/or other services by DESIGNSCAPE UK LIMITED (the “the Company”, we, us, our) to any person, firm, corporation or unincorporated association (the “Client”, you, your ) shall be subject to these terms and conditions which shall apply to the exclusion of any terms and conditions of the Client whether in the order (for the goods/services) or in any negotiation and supersedes any earlier terms and conditions appearing in the name of the Company unless expressly agreed in writing by a duly authorized representative of the Company.
the “Contract Price” means the total price stated in any Quotation.
the “Quotation” means a written quotation or estimate issued by the Company to the Client subject to these terms and conditions.
the “Order” means a written quotation or estimate issued by the Company to the Client subject to these terms and conditions.
(2) The headings in these terms and conditions are for convenience only and shall not affect their interpretation in these terms and conditions.
(3) Words importing one gender include all other genders and words importing the singular include the plural and vice versa.
(4) References to any statute, enactment, order, regulation or other similar instrument shall be construed as references to the statute, enactment, order, regulation or instrument as amended by any subsequent statute, enactment, order, regulation or instrument or as contained in any subsequent re-enactment, modification or statutory extension of any of the above.
(4) No variation or amendment of these terms and conditions shall be made unless expressly agreed in writing by a duly authorised representative of the Company.
2. Quotations & Variations
(1) The Company shall sell and the Client shall purchase the goods/services in accordance with the Company‟s written quotation and subject to these terms and conditions.
(2) Unless previously withdrawn, a Quotation of the Company is open for a period of 30 days after the date of the Quotation as mentioned in it. No Quotation or the content on the Company‟s website shall constitute an offer or tender but shall be deemed to be an invitation to offer.
(3) For design work the full contract value is stated on the Company estimate to the Client and that which has been written into the Order. This is a fixed price and any variation in the scope of works from that agreed will be charged as consultancy work and agreed in writing.
(4) For construction, planting and maintenance work the full contract value is defined as that which is stated on the Company estimate and that which has been written into the contract. It is important to
understand that with all building works, there are sometimes „unforeseen circumstances‟. In some instances these can give rise to either a price increase or a price decrease. The Company will do everything within its power to ensure that the contract value is adhered to and that the estimate given to the Client is chargeable at the end of the contract. There are however certain circumstances beyond our control, including but not limited to the following to set the example:
• Work in the ground; In preparing our drawings and specifications certain assumptions may have to be made in taking account of your ground conditions. Should it become necessary to alter the design of our groundwork‟s from the design that we have priced for due to unforeseen circumstances then it may be necessary for us to issue you with an additional charge.
• Should the Client wish to make any amendments to the project as the work progresses, the Company will attempt to integrate these as seamlessly and for as little cost as possible. The Client will be asked to sign either an amendment to the contract or a variation form to record the event and will be given either a quotation or an estimate for the extra costs, depending upon the situation.
(5) Our representatives on-site which include Company employees and certain subcontractors, employed by the Company are authorised by the Company to accept both written and verbal instruction from the customer to alter the originally agreed design/specification. The customer accepts that such instructions which alter the originally agreed design/specification will alter the contract estimate value to a revised appropriate
(6) A contract shall be created only when the Company, through a duly authorised representative has accepted in writing, fax or e-mail an offer from the Client to purchase goods and/or to receive services (the “Project”) such acceptance shall thereupon create a contract to be governed by these terms and conditions.
(7) No employee, sub-contractor or agent of the Company has any authority to add to or vary these terms and conditions or to make any representation or warranty unless such addition, variation, representation or warranty is in writing and signed by a duly authorised representative of the Company.
(8) Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Company to the Client shall be subject to correction without any liability on the part of the Company.
3. Prices
(1) All prices are quoted inclusive of Value Added Tax which is to be paid by the Client where applicable, current applicable rate 17.5% unless otherwise stated.
(2) The Company reserves all the right, in its absolute discretion, to increase the price if the Client requests the Company to vary, modify or amend the Project or if the Client delays in any process of review of the Project or in the event of any rise in the cost of materials, labour, services, interest rates or statutory changes between the date of commencement of the Project and the date of completion.
(3) The Company charges fixed prices for the majority of design and consultancy work; however in certain circumstances it may be necessary to apply an hourly consultation rate, plus expenses.
4. Payment
(1) Unless the Company instructs otherwise, its representative on site is authorised to accept a cheque or cash. Our installer or builder (employees of the Company only, not sub-contractors) is similarly authorised to accept payment when an order is completed. All cheques are to be made payable to the Company.
(2) Payment made to the Company by cheque, which is subsequently not honoured by the drawers bank will be subject to an additional administration charge levied at 3% over our banks current rate of interest. This charge will be payable to the Company immediately.
4a. Payment (DESIGN)
(1) Payment (including any applicable VAT and without set off or other deduction) shall be made to the Company on submission by the Company of the invoice to the Client. Payment shall be made in two instalments of 50%, the first due on completion of the survey and the remaining payment on first presentation of the drawings. Payments shall be made in the currency of Sterling. The time of payment of the price shall be of the essence of these terms and conditions.
(2) The Client shall pay interest to the Company on overdue accounts or so much thereof as shall be overdue at the rate of 4% pa over the Company‟s bank‟s base rate from time to time in force until the date of payment (whether before or after judgment) without limiting any other rights that the Company may have.
4b. Payment (CONSTRUCTION)
(1) For landscape construction and planting services, an initial deposit of 10% of the Contract Price plus VAT and upon written acceptance of the Quotation is required to secure a start date in the schedule. A further 20% payment will be invoiced 4 weeks prior to commencing works and payment will be required before work begins on site.
(2) Deposits are non-refundable
(3) Payment (including any applicable VAT and without set off or other deduction) shall be made to the Company 14 days after the submission by the Company of the invoice to the Client in accordance with the agreed payment schedule (generally the Project will be invoiced in 14 day valuation periods). Payments shall be made in the currency of Sterling. The time of payment of the price shall be of the essence of these terms and conditions.
(4) The Client shall pay interest to the Company on overdue accounts or so much thereof as shall be overdue at the rate of 4% pa over the Company‟s bank‟s base rate from time to time in force until the date of payment (whether before or after judgement) without limiting any other rights that the Company may have.
(5) Payment is to be made by cash or cheque (made payable to the Company) only or by electronic bank transfer to the following account Alliance & Leicester Commercial Bank Account Number 05222583 Sort Code 72-00-00.
(6) If any invoice is not paid within the notice period of the date of invoice then all outstanding invoices shall become immediately due and payable.
5. Performance of the Project & Guarantee Periods
GENERAL
(1) The Company will use all reasonable skill, care and diligence in accordance with the normal standards of the landscape & garden design professions.
(2) The Client shall provide the Company with access to, and use of, all information, data, and documentation and premises which is reasonably necessary for the Company to perform the services agreed.
(3) Any time given for performance of the Project is intended as an estimate only. Any request by the Client to vary, modify or amend the Project or any delay in any process of review of the Project with the Client may involve alteration of the estimated time for performance by the Company of the Project.
(4) The Company shall not be liable in any circumstances for any damages or loss of any kind whatsoever arising directly or indirectly out of delay or failure to deliver or complete the Project.
GUARANTEES
(5) Any design work completed by the Company pursuant to the Project or any part thereof is subject to unlimited amendment unless:
i. The boundaries of the work area have been changed.
ii. There have been material changes, additions or omissions to the house or any outlying buildings on the property. This also includes changes to any other elements that were present when the contract was agreed or proposals that were not declared at the time of the contract being agreed.
iii. The Client has signed a design acceptance form or paid a security deposit for construction of the garden.
iv. The period of time from first presentation is greater than 12 months.
Any further amendment to the Project will be charged as consultancy work and to be agreed in writing prior to execution.
(6) Any goods/products supplied by the Company pursuant to the Project or any part thereof found to be defective and not arising from the Client‟s default, neglect or misuse, are not covered by our guarantee but their own suppliers/manufacturers guarantee/warranty conditions only.
(7) No liability whatsoever is accepted in respect of consequential loss, damage nor liability however caused or in respect of additional costs or expenses incurred by a client arising directly or indirectly from any such defect, breakage or failure where such defect, breakage or failure is due to circumstances beyond our control. Should a product become defective due to faulty components or workmanship during the period of the supplier‟s warranty, the Company will, at its option, repair or replace the product at their expense. In the event of the product becoming defective during the warranty period you should immediately contact the Company to determine what action is necessary.
(8) Any written material and product guarantees provided by manufacturers/suppliers for materials/products used in the installation/build will be passed onto the Client by the Company.
(9) No alterations or remedies should be made by the Client or any third party instructed by the Client or otherwise to rectify such faults without our prior written agreement as this will invalidate the guarantee.
(10) Any structural work completed by the Company that fails due to faulty workmanship other than trees, plants, shrubs, grass and other plant failures within a period of 5 years post completion shall be put right by the Company at no expense to the Client. In the event of any workmanship being deemed faulty during the warranty period you should immediately contact the Company to determine what action is necessary.
(11) Any new turf found to be defective within 3 months of laying and not arising from the Client‟s default, neglect or misuse, will be replaced by the Company at no expense to the Client. The Company will not guarantee new seeded lawns.
(12) Any plants found to be defective within 3 months of first buds breaking and not arising from the Client‟s default, neglect or misuse, will be replaced by the Company at no expense to the Client.
(13) Any trees found to be defective within 12 months of first buds breaking and not arising from the Client‟s default, neglect or misuse, will be replaced by the Company at no expense to the Client.
(14) A couple of days prior to the end of on-site works the Company will request a snagging list (list of works, if any, which the customer feels are not up to standard and require rectification) from the Client which the Company will act on immediately. Once all works have been completed to a satisfactory standard, the Company will request the Client‟s written confirmation. The final invoice from the Company will be due for payment by the Client immediately. The Company will then issue a „Certificate of Completion‟ which also acts as the „Company Warranty‟ once the appropriate final invoice has been paid. No „Certificate of Completion‟ or „Company Warranty‟ will be issued by the Company until the above signatures and payments have been received.
(15) The Guarantee does not include any materials or labour provided by the Client.
(16) It must be expected that after a certain amount of time and in view of the external location, as with any new build there will be a certain amount of movement in the structure. This will include (but will not necessarily be limited to) hairline cracking in walls, expansion of timbers and movement of soil. Planting is subject to many external factors that may be beyond anyone‟s control, including slugs, weather and disease.
6. Exclusion of Liability
(1) Save as expressly set out in Clause 5 above, the Company shall not be under any liability to the Client whether in contract, tort or otherwise for any defect in, failure of or unsuitability of any goods supplied or advice given or results produced pursuant to the Project or for any consequential loss (including loss of profit, use or goodwill or similar financial loss), damage, claim or any other liability (howsoever caused) arising out of or in the course of or in connection with the Project, whether or not due to the negligence of the Company or its servants or agents. All conditions, warranties or other terms whether express or implied, statutory or otherwise, inconsistent with this clause are expressly excluded provided that where Section 2 of the Unfair Contract Terms Act 1977 applies nothing herein contained shall exclude or restrict any liability of the Company for death or personal injury resulting from the negligence of the Company or its servants or agents.
(2) The Company shall not be liable to the Client or be deemed to be in breach of the terms and conditions by reason of any delay in performing, or any failure to perform, any of the Company‟s
obligations in relation to the goods or performance of a Project, by reason of any supervening event beyond its control (including but not limited to war, , strikes, lockouts, war, acts of terrorism, hostilities (whether or not war has been declared), riots, terrorist acts national emergency, flood, earthquakes, extreme weather conditions, strike or lockout, or other labour disturbances, fire, flood, , restrictions on the use of transport or labour, governmental or regulatory decisions, refusal of licences).
(3) The Client shall indemnify and keep the Company indemnified from and against any and all losses, damages or liabilities (whether criminal or civil) suffered and legal fees and costs incurred by the Company resulting from: (a) a breach of the contract by the Client including any act neglect or default of the Client‟s employees or agents; and (b) any claim made against the Company by any third party arising out of or in the course of or in connection with the Project, whether in negligence or otherwise.
7. Risk
(1) Where the Company supplies materials to the Client (whether or not the ultimate intention is that the materials be returned to the Company) the risk in such materials will pass on delivery to the Client.
8. Title
(1) Notwithstanding delivery and passing of risk in any materials supplied by the Company to the Client in completion of the project, the Company shall remain the owner of the materials until the Client has paid in full all sums due.
(2) Until ownership of the Project passes to the Client, the Company shall be entitled to remove any materials from site as necessary. Any materials not required in fulfilment of the Project will remain the property of the Company and be removed from site prior to issue of „Certificate of Completion‟.
9. Confidentiality
(1) Our confidentiality policy covers the Company and use of its website.
(2) You can access our Website home page and browse our website without disclosing your personal data. Our website does not enable our visitors to communicate with other visitors or to post information to be accessed by others. Our website does include any link to third party websites.
(3) We do not use cookies on our Web site. We do not automatically log personal data by means such as programming.
(4) We do not collect any personal data from our visitors when they use our web based services.
(5) We do not collect information about our visitors from other sources, such as public records or bodies, or private organisations.
(6) We do not disclose your personal data to our subsidiaries or other organisations.
(7) We do not give visitors to our website the option of using a secure transmission method to send us their personal data. We have implemented security policies, rules and technical measures to protect the personal data that we have under our control from:
(i) unauthorised access;
(ii) improper use or disclosure;
(iii) unauthorised modification;
(iv) unlawful destruction or accidental loss.
(8) All our employees and data processors, who have access to, and are associated with the processing of personal data, are obliged to respect the confidentiality of our visitors’ personal data.
(9) We ensure that your personal data will not be disclosed to State institutions and authorities except if required by law or other regulation.
(10) You can ask us, whether we are keeping personal data about you.
Upon request, which you can indicate by contacting us on telephone number ( 01483 277614), we will provide you with a readable copy of the personal data which we keep about you, within a week. We may require proof of your identity. We will provide the information without any charge.
(11) Our privacy policy is compliant with the current UK regulations.
(12) you agree that you will not during the term of this agreement and within six months thereafter neither for yourself nor for any other person, directly or indirectly, advise, instruct, do or assist in any activity the effect of which is to promote competition with us, or encourage any person to breach any contract between that person (who worked as an employee or contractor for the Company within the period of six months immediately preceding the term of the Project) and the Company.
10. Inventions
(1) Unless otherwise agreed in writing prior to contract any discovery or invention or design (the “Invention”) made, discovered or produced by the Company in the course of or arising out of the Project shall belong to the Company.
(2) if the Company has agreed in writing with the Client that Client should have the rights in the Invention as per clause 10(1) above, the Company may require that the rights in any Invention be assigned to the Company from time to time and the Client agrees to enter into such an assignment in the form provided to it by the Company, without cost to the Company.
11. Copyright
(1) Unless otherwise agreed in writing, copyright in any plans, drawings, specification or other documents prepared by the Company in connection with or in the course of the Project shall belong to the Company until payment is received in full.
(2) The Company reserves the right to use drawings and photographic work within its Company literature.
12. Client’s Property
(1) Although all reasonable precautions are taken, any information or equipment supplied by or belonging to the Client will only be held at the risk of the Client, no liability being accepted by the Company for loss, damage, destruction or disclosure thereof.
(2) The Company is not responsible for the removal and/or refitting of any cables/pipes i.e. alarms, telephone, cable/satellite TV, electrics, water feeds unless agreed in the scope of works. Items such as these that could affect our schedule should be removed prior to our arrival on site, and re-fixing arranged outside of the scope of our contract.
(3) The removal of all Client‟s garden fixtures, fittings, items, loose appliances and white goods (e.g. garden furniture, ornaments, pots, play equipment, tools etc) from the vicinity of work is the responsibility of the Client. If the Company is requested to remove such items the Company accepts no liability for damage caused to such objects and may charge additional to the contract value.
(4) Where new electrics and/or plumbing and other services are installed as part of the scope of works, it is sometimes necessary to gain a feed from the existing supply in the property. Should this be necessary it may be required to gain such a feed by creating openings in the existing walls or ceilings, removal of plaster work from existing walls or by taking up existing flooring. The Company will always aim to minimise damage and will make good to the best of its ability all surfaces. The Company cannot be held responsible for replacement of any specialized surfaces.
(5) The Company will endeavour to the best of its ability to protect and re-instate where possible and applicable any of the Client‟s existing garden features that are not being changed i.e. driveways, grassed areas. The Company will not be responsible for full replacement should any of these items or similar become damaged during works.
Should we damage a part of your property through carelessness or neglect then we will at our discretion repair or replace it. This repair or replacement will however be limited to the item of damage caused. For example, should we damage an area of paving then we will at our discretion aim to repair or replace this paving. We will however not replace any other existing paving throughout the property due to the fact that they match.
(6) Any external brickwork, pebble dashing, roofing materials, rendering or internal works may not be an exact match to existing, due to the weathering effect over time, discontinuation in manufacturing of certain products/materials and differences in craftsmanship and workmanship.
(7) The Company will seek permission from the Client to advertise its services by whatsoever means that it sees fit from the site of works. If the Company uses the Client‟s building facade to attach any kind of advertising material with the exception of health & safety material to it, then the Company will seek prior consent from the Client and any direct damage will be made good.
14. Suspension
(1) In the event of the performance of any obligation accepted by the Company being prevented, delayed or in any way interfered with by either: (a) rules, regulations, requisitions or orders of the Government or Local Authority, war, riot, civil disturbance, strike, industrial action short of a strike, lock out, accident, fire or by any other cause beyond its control; or (b) shortage of labour or materials or non-delivery by the Company‟s suppliers or damage to or destruction of the whole or part of any goods to be supplied, the Company may at its option suspend performance or cancel its obligations under the contract without liability for any damage or loss of any kind whatsoever resulting there from such suspension or cancellation being without prejudice to the Company‟s right to recover all sums owing to it in respect of goods delivered at the date thereof.
15. Employees
(1) During the continuation of the Project and for a period of 6 months after the completion thereof neither party shall without the prior written consent of the other directly or indirectly employ or engage any employee of the other or any person who has been an employee of the other during the period of 6 months prior to such employment or engagement and who has been concerned with or involved with the Project.
(2) All employees are suitably trained
16. Termination for Breach
(1) The following obligations are conditions of the contract and any breach of them shall be deemed a fundamental breach which shall entitle the Company to determine the contract immediately and the rights and liabilities of the parties shall thereafter be determined in accordance with Clause 17 below: (a) default in payment by the Client of any sum within 14 days of the due date; (b) where it appears that any research or investigatory work undertaken by the Company is to be used by the Client for the purpose of arbitration or litigation and full disclosure has not been made prior to contract; (c) failure on the part of the Client to comply with the terms of any notice specifying a breach of the contract and requiring the breach to be remedied so far as it may be but nothing in this Clause is intended to require the Company to serve notice of any breach before taking action in respect of it; or (d) if any distress or execution shall be levied upon any of the Client‟s assets or if the Client shall make or offer to make any arrangement or composition with creditors or commit any act of bankruptcy or if any petition or receiving order in bankruptcy shall be presented or made against the Client or if any resolution or petition to wind up the Client shall be passed or presented (otherwise than for the purpose of a bona fide reconstruction or amalgamation) or if a receiver, administrator or manager be appointed over any part of the Client‟s undertaking or assets or the Client cannot pay its debts.
17. Termination Consequences
(1) In the event of the contract being determined whether by performance of the Project breach or otherwise: (a) the Client shall immediately pay to the Company all sums due under the contract and all further sums which would but for the determination of the contract have fallen due upon performance of the Project; and (b) either party shall be entitled to exercise any of the rights and remedies given to it under the contract and the determination of the contract shall not affect or prejudice such rights and remedies and each party shall be and remain liable to perform all outstanding liabilities under the contract notwithstanding that the other may have exercised any of the rights and remedies against it.
18. Assignment Sub-Contracting or Delegation
(1) The Company reserves the right to assign other designers or subcontractors to the work in order to ensure that it is delivered to the required standards and on time.
19. Severability
(1) If any term of the contract or any part thereof shall become or be declared illegal, invalid or unenforceable for any reason whatsoever, such term shall be divisible from the contract and shall be deemed to be deleted from the contract provided always that if such deletion substantially affects or alters the commercial basis of the contract the parties shall negotiate in good faith to amend and modify the terms of the contract as may be necessary or desirable in the circumstances.
20. Proper Law
(1) The contract shall be governed and construed in accordance with the laws of England and the Client agrees to submit to the exclusive jurisdiction of the English courts.
21. Arbitration
(1) If at any time any question, dispute or difference whatsoever shall arise between the Client and the Company upon, in relation to, or in connection with the contract, either may give the other notice in writing of the existence of such question, dispute or difference and the same shall be referred to the arbitration of a person to be mutually agreed upon or failing agreement within 14 days of receipt of such notice, of some person appointed by the President of the Law Society for the time being.
(2) According to the provisions of the Arbitration Act 1996 the decision of the arbitrator shall be final and binding on all parties.
22. Notice and service
(1) Any notice or other information required or authorised by this contract to be given by either party to the other may be given by hand or sent by first class pre-paid post, or electronic means to the other party at the address last provided for that type of communication.
(2) Any notice or other information given by post shall be deemed to have been given on the seventh day after it was posted; and proof that the envelope containing any such notice or information was properly addressed, pre-paid, registered and posted, or that it has not been so returned to the sender, shall be sufficient evidence that it has been duly given.
(3) Any notice or other information sent by electronic means shall be deemed to have duly sent on the date of transmission.
(4) Service of any notice, concerning or arising out of this contract shall be effected by causing the same to be delivered to the party to be served at its main place of business or registered office or to such other address as may from time to time be notified in writing by the party concerned.
23. Waiver
(1) No waiver by the Company of any breach of the contract by the Client shall be considered as a waiver of any subsequent breach of the same or any other provision.