1.1 The definitions and rules of interpretation in this condition apply in these terms and conditions (“Conditions”).
“the Contract” means the agreement between us and you for the provision of design services, construction and landscaping as specified in the Quotation and specification
“the Design Fee” means the fee for design work and supply of all materials listed in the attached Quotation;
“the Goods” means any plants, turf, ornaments or materials supplied in relation to the Contract;
“the Build Fee” means the implementation fee specified on the attached Quotation;
“the Quotation” means the written quotation provided to you by us and attached to these conditions;
“the Sub-Contractor” means any individual or company providing the Works to you;
“the Works” means such works and services detailed on the Quotation;
“we, us, our” means Landcraft, trading as Landcraft Ltd . Company no : 13545964.
1.2 These Conditions shall apply to any Contract between us and you for the provision of Works.
1.3 Headings in these Conditions shall not affect their interpretation.
1.4 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.5 A reference to writing or written includes faxes but not e-mail.
1.6 Any obligation in the Contract on a person not to do something includes, without limitation, an obligation not to agree, allow, permit or acquiesce in that thing being done.
2 Application of conditions
These Conditions shall:
A apply to and be incorporated into the Contract; and
B prevail over any inconsistent terms or conditions contained, or referred to, in your confirmation of order, acceptance of a quotation, or specification or other document supplied by you, or implied by law, trade custom, practice or course of dealing.
3 Time for Performance
3.1 Unless otherwise agreed in writing, the provision of the Works shall take place at the address specified in the Quotation on or as close as possible to the date required by you. You shall make all arrangements necessary to allow our contractors and workers to access the site whenever they require access for completion of the Works.
3.2 We aim to complete the Works within the time scale specified in the Quotation, subject to the provisions of clauses 3.3, 4, 9, 10 and 12 of these Conditions.
3.3 We shall not be liable for any delay arising from delay to the availability of any of the materials required to complete the Works or any other matters beyond our control.
3.4 In the event of any adverse weather conditions that are unsuitable for the completion of the Works we and our Sub-Contractor may suspend performance of the contract until such time as the weather conditions improve and become suitable for completion of the Works. Our time for performance of the Contract is not of the essence.
3.5 If our suppliers are unable to deliver any Goods required to complete the Works because of actions or circumstances under your control, then we shall be entitled to place the Goods in storage until such times as delivery may be effected and you shall be liable for any expense associated with such storage and transportation costs.
3.6 We reserve the right to charge you for any waiting time incurred as a result of your failure to comply with Conditions 4.1 or 4.2 at our standard hourly rate or our Sub-Contractor’s standard hourly rate.
4 Your Warranties and Representations
4.1 On any day we or our Sub-Contractor has arranged with you to attend your premises to provide the Works, you will ensure that access to the site will be made available to us.
4.2 You will ensure that a convenient supply of electricity and water is provided at the site at all times during the provision of the Works. If we are unable to provide the Works because of actions or circumstances under your control, then we shall be entitled to suspend provision of the Works and you shall be liable for any costs, expense or losses associated with such suspension of the Works.
4.3 You will water, maintain and care for the turf and plants supplied by us in accordance with any instructions given to you by us or our Sub-Contractor and in any regard shall take all reasonable steps to ensure that the turf and plants are regularly watered and maintained and cared for.
5 Our warranties
5.1 We will supply all lawn turf and plants required to complete the Works specified in the Quotation of a reasonable standard and quality for installation and planting by the Sub-Contractor to complete the Works specified in the Quotation.
5.2 Subject to clause 5.4 below, we will repair any defect you notify to us within 3 months of the date of completion of the Works which is our fault or that of our Sub-Contractor.
5.3 The warranties in this clause 5 will not cover repairs or replacement of any Goods or services supplied relating to or arising from:-
5.3.1 your failure to water and maintain and care for any turf or plants supplied or transplanted by us following laying of turf and planting; or
5.3.2 any defect which is a result of fair wear and tear; or
5.3.3 any defect or damage arising as a result of any defect in the subsoil or failure of the subsoil to meet the requirements for the laying of paving or any other condition of the subsoil either before during or after the Works are supplied; or
5.3.4 any damage caused by extreme, severe or unexpected weather conditions either during implementation of the Works or after completion of the Works; or
5.3.5 any failure of the plants supplied to survive. We do not guarantee the survival of any plants or turf supplied under the Contract and will not replace any plants or turf that fail to survive.
5.4 This warranty will not be valid if you fail at any time to fulfil condition 4.3 above or fail to follow any instructions for use, maintenance and care of the Goods supplied under the Contract;
5.5 Any additional warranty provided by a manufacturer or supplier in relation to any Goods supplied and used as part of the Works shall be the responsibility of the manufacturer or grower.
6 Charges and payment
6.1 In consideration of our providing the Works you shall pay a £5000 deposit upon agreeing for works, 50 % upon start of works, 25 % once the clearance and paving have been completed and balance on completion.
6.2 All charges quoted to the Customer shall be exclusive of VAT which we shall add to our invoices at the appropriate rate.
6.3 We shall be entitled to charge interest on all monies owed under the Contract by you after any applicable day credit period has expired until payment in cleared funds has been received at the prevailing rate of Late Payments Debts (Interest) Act (as amended).
6.4 All sums payable to us under the Contract shall become immediately due and payable upon presentation of invoice, including any final invoice. This condition 6.4 is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
6.5 We may, without prejudice to any other rights we may have, set off your liability of us against any liability of ours to you.
7 Retention of Title
7.1 Ownership of any Goods supplied to you shall not pass to you until we and the Sub-Contractor have received in full all sums due to us in respect of:
the Goods and all other sums which are or which become due to us or the Sub-Contractor from you on any account.
7.2 Until ownership of the Goods has passed to the Customer, the Customer shall hold the Goods on a fiduciary basis as our bailee and in the case of any plants planted or turf laid with respect to the Works, water and maintain and care for such plants and turf and maintain the Goods in satisfactory condition.
7.3 Your right to possession of the Goods shall terminate immediately if you have a bankruptcy order or debt relief order made against you or you make an arrangement or composition with your creditors or any proceedings are commenced relating to your insolvency or possible insolvency.
7.3.1 We shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed to you.
7.3.2 We shall be entitled to attend the area of work solely for the purpose of collection of our property pursuant to this clause and you are deemed to consent to this.
8 Intellectual Property
8.1 The designs and plans provided within the Quotation remain our property at all times.
8.2 You are permitted to make copies of any of our intellectual property including, but not limited to, the information contained within the Quotation, any drawings, sketches, layouts or plans provided by us during the course of planning and negotiation but you may not use them for commercial gain nor distribute same to a third party..
8.3 You shall notify us as soon as reasonably practicable if you become aware of any unauthorised access to, use of or copying of any part of our intellectual property by any person.
9 Limitation of liability
9.1 We shall not be liable for any loss of profits; or loss of business; or depletion of Goodwill and/or similar losses; or loss of anticipated savings; or loss of Goods; or loss of contract; or loss of use; or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses arising from our performance of the Contract and provision of the Works with the exception of loss following directly from death or personal injury as a result of our negligence
9.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
9.3 We shall not be liable for any damage caused as a result of your failure to comply with the terms of the Contract or these Conditions.
9.4 We shall not be liable for any damage caused to driveways by the delivery, use or collection of any skip at your property.
9.5 Notwithstanding clauses 9.1, 9.2, 9.3 and 9.4 our total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of the Contract shall not exceed the sums paid by you under this contract.
10.1 Without prejudice to any other rights or remedies which the parties may have, we may terminate the Contract in the any of the following circumstances:
10.1.1 You fail to pay an invoice;
10.1.2 you commit any breach of the Contract or these Conditions; or
10.1.3 you suspend, or threaten to suspend, payment of your debts or are unable to pay its debts as they fall due or admit your inability to pay your debts;
10.2 Under The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, you have a cooling off period of 14 days in which time you have the right to cancel and get a full refund. You cannot waive those rights but are of course free to choose not to exercise your right to cancel. However, as you have been made aware, pre-contract, of your obligations with regard to payment for services or products used, and if you give us your express consent for the commencement of the Works in the cancellation period, then if you later cancel the Contract, we may recoup the cost of any Works delivered until the point of cancellation. Therefore if we commence constructing the garden design immediately before the end of the cooling off period, you will still be able to cancel but must pay us a reasonable amount for the work we have already done.
10.1.3 On termination of the Contract for any reason, we shall be entitled to payment of all our invoices including the final invoice.
11 Force majeure
11.1 In this clause Force Majeure means an act of God including but not limited to fire, flood, earthquake, windstorm or other natural disaster; act of any sovereign including but not limited to war, invasion, act of foreign enemies, hostilities (whether war be declared or not), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, nationalisation, requisition, destruction or damage to property by or under the order of any government or public or local authority or imposition of government sanction embargo or similar action; law, judgment, order, decree, embargo, blockade, labour dispute including but not limited to strike, lockout or boycott; interruption or failure of utility service including but not limited to electric power, gas, water or telephone service; failure of the transportation of any personnel equipment, machinery supply or material required for performance of the contract; breach of contract by any essential personnel; any other matter or cause beyond the control of the parties. Inability to pay is not Force Majeure.
11.2 We and the Sub-Contractor will not be liable if delayed in or prevented from performing our obligations hereunder due to Force Majeure, provided that we promptly notifies you of the Force Majeure event and its expected duration and we use reasonable endeavours to minimise the effects of that event.
12.1 In the event that you wish to amend any aspect of the Works detailed in the Quotation, we shall advise you of the revised Design Fee (chargeable at £50 per hour plus VAT) and the revised Build Fee and if you wish to go ahead, we shall prepare a revised invoice which shall be immediately payable.
12.2 We may not be able to agree to the amendments that you want.
Apart from 12.1, no variation of the Contract or these Conditions or of any of the documents referred to in them shall be valid unless it is in writing and signed by or on behalf of each of the parties.
13.1 If any provision of the Contract or part of any provision is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Contract, and the validity and enforceability of the other provisions of the Contract shall not be affected.
13.2 If a provision of the Contract or part of any provision is found illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
14 Entire agreement
14.1 The Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
14.2 You acknowledge that, in entering into the Contract, you have not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty whether made negligently or innocently other than for breach of contract, as provided in the Contract.
14.3 Nothing in this condition shall limit or exclude any liability for fraud.
16.1 You shall not, without our prior written consent assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights or obligations under the Contract.
16.2 Each party that has rights under the Contract is acting on its own behalf and not for the benefit of another person.
16 No partnership or agency
16.1 Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
17 Rights of third parties
17.1 A person who is not a party to the Contract shall not have any rights under or in connection with it.
18 Governing law and jurisdiction
18.1 The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation including non-contractual disputes or claims, shall be governed by, and construed in accordance with, the law of England and Wales.
18.2 Subject to clauses 12.1 and 12.2 the parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, the Contract or its subject matter or formation.