Terms & Conditions

1. GENERAL

1. Our terms and conditions for contracts with Land mark Garden Design & Construction.
2. By signing a quotation you agree to the following terms and conditions.
3. These can be found on the website at your convenience.

2.DEFINITIONS

2.1 The definitions and rules of interpretation in this clause shall apply in these terms

and conditions.

Commencement Date means the date that the Contractor shall commence work as agreed between the Contractor and the Client from time to time.

Completion Date means the date the Works are intended to be completed as agreed between the parties from time to time.

Contractor means the contractor; Landmark Garden Design & Construction supplying the Quotation to which these terms and conditions apply.

Client means the person, firm or company who enters into a contract with the Contractor for the provision of landscaping works.

Intellectual Property means the plans, drawing and Specifications submitted by the Contractor (whether before or after the making of the contract).

Quotation means the written estimate provided by the Contractor for the completion of the Works. Site means the location where the works are to be performed by the Contractor.

Specification means the documents including detailed plans and/or drawings describing the Works provided by the Contractor.

Works means the work to be carried out by the Contractor under the contract as set out in the Specification together with any other services which the Contractor agrees to provide to the Client.

2.2 Paragraph headings shall not affect the interpretation of these conditions.

2.3 A person includes a natural person, corporate or unincorporated body (whether or not having a separate legal personality) and that person’s legal and personal representatives, successors and permitted assigns.

2.4 Words in the singular shall include the plural and vice versa.

3. THE SCOPE OF THE WORK:

3.1 The contractor (Landmark Garden Design & Construction) shall carry out and complete the landscape work described in the Contract documents in a good and workmanlike manner. He shall have no obligation to execute any further work unless otherwise agreed in writing between the parties. If there shall be any discrepancy between any specification and drawing, the description contained in the specification shall prevail over the drawing.

3.2 The client is responsible for obtaining any necessary planning permission for the works and for fulfilling statutory requirements.

3.3 These Conditions shall be deemed to be incorporated into any contract between the Client and the Contractor and shall take precedence over any other terms and conditions (unless identified and agreed in writing by the Client/Contractor, and any deletion, substitution or amendment to these terms shall not take place unless agreed in writing by the Contractor and the Client.

3.4 If there is any inconsistency between the drawings and/or plans and any description of the works in the Specification, the latter shall prevail.

3.5 The Contractor shall carry out and complete the landscape works described in the Specification with reasonable care and skill and in a proper and workmanlike manner. Should any inconsistencies be found between the contract documents, these are to be highlighted and a revised price agreed prior to the Commencement Date. If any such inconsistency comes to light after the Commencement Date the Contractor shall be entitled to be paid a reasonable sum for any extra work or cost thereby incurred.

3.6 The Client shall obtain all permissions, give all notices and pay all fees required under any Act of Parliament or any regulation or byelaw of any local authority or statutory undertaker having any jurisdiction with regard to the Works and the Client shall indemnify the Contractor against any claim, proceedings, loss or expense resulting from the Client’s breach of this clause in whole or in part. The Client must produce copies of all relevant approvals to the Contractor prior to the Commencement Date. If not produced, work should not commence.

4. QUOTATION

4.1 A quotation shall remain open for acceptance within thirty days of the date shown and thereafter lapses automatically.

5. VARIATIONS

5.1 Variations to the works as described will only be undertaken upon instructions given in writing by the Client to the Contractor. Oral instructions will not be instructed. It should be noted that site personnel have no authority to alter the contract in anyway. The price of any additional work, properly treated as a variation, will be based upon costs prevailing at the date of the instruction.

6. CONTRACT SUM

6.1 The Contractor shall provide the Quotation in writing specifying the Works to be carried out and a breakdown of the cost of the Works.

6.2 The Quotation shall remain open for acceptance for 30 days (or such other period as may be agreed in writing) from the date it is provided by the Contractor. If the Quotation is not accepted by the Client in writing within this period, the Quotation will lapse and be deemed to have been withdrawn.

6.3 If the Client accepts the Quotation in writing within the period stipulated in clause 3.2 the price contained in the Quotation shall become the ‘Contract Sum’ except as expressly provided in these terms. A binding contract will come into existence when the Client accepts the Quotation in writing.

6.4 The Client may issue to the Contractor reasonable instructions to vary and modify the quality and quantity of the Works. All instructions given by the Client must be given in writing. The Contractor is not under an obligation to carry out a verbal instruction until it is confirmed in writing, except in the case of an instruction being issued by the Client in an emergency e.g. health and safety matters. All instructions issued in an emergency shall be confirmed in writing within 3 days and the Contractor shall be entitled to be paid for work properly carried out in accordance with any such instruction.

6.5 If the variation will alter the cost of carrying out the Works, the Contractor will provide a written Quotation and cost breakdown for the cost of carrying out the variation and the effect it will have on the Completion Date. The Client and the Contractor will agree an adjustment to the Contract Sum in writing. If the Client receives the amended Quotation and wishes to proceed, the Client shall confirm his instruction to proceed in writing, accepting the new Quotation and the extended Completion Date.

6.6 Where any additional or substituted work is of a similar nature to the Works, such works should be valued to the cost breakdown set out in the Quotation. Otherwise, such work shall be valued at fair rates and prices agreed prior to execution and any additional payment due to the Contractor or any extension to the Completion Date shall be added to the Contract Sum and Completion Date respectively.

7. RIGHT TO CANCEL

7.1 If this contract is made at a location which is not the usual place of business of the Company, you may have rights to cancel the same under the Consumer Contracts etc. Regulations 2013. Provided you have been supplied with a notice as prescribed by such Regulations (which, if applicable, should be attached to and is hereby incorporated in this contract document), such right to cancel will expire 14 days after receipt of the said notice.

7.2 Should the client wish to cancel the quotation after this time the following penalties apply:

1. a) 10% deposit of the contract sum is non-refundable.
2. b) Cancellation on or after the commencement date, the Contractor will be entitled to be paid either the 10% deposit or if greater, the costs for work and/or materials supplied and materials ordered up to the date of determination of the Contractors employment.

8. COMMENCEMENT OF WORKS

8.1 Commencement date is subject to other potential clients agreeing to quotations which are treated on a first come first served basis.

8.2 Works are assigned on the Jobber Computer Management System. Clients have access to the Client hub to review scheduled appointments. These may be subject to change, you will be notified by telephone should the commencement date alter with as much advance notice as possible.

9. PAYMENT

9.1 The Contractor shall be entitled to receive interim payments every fifth working day and final payment on completion. If no payment interval is agreed the first payment shall be due within 7 days of completion.

9.2 Without prejudice to the Contractor’s other rights and remedies, if the Client shall fail to pay as provided in the above clauses, the Contractor shall be entitled to suspend Works 5 days after giving notice to that effect to the Client.

9.3 The Client shall pay to the Contractor any Value Added Tax properly chargeable on the supply to the Client of any goods and services under these terms. The Client may at any time request appropriate evidence of the Contractor’s current VAT registration status. Should the Contractor fail to provide evidence then the Client may withhold amounts attributable to VAT on any outstanding payment.

9.4 Interest on all payments due from the Client to the Contractor shall accrue and be payable from the date when payment first becomes due on a daily basis until the date of actual payment at a rate equivalent to 4% over the base lending rate for the time being of National Westminster Bank plc and shall accrue at such rate after as well as before any judgment.

10. THE SITE

10.1 The Client warrants that the site is free from asbestos, springs, flooding, rock, tree stumps not specified to be removed, mine workings, covered wells or other cavities, running sand, service pipes and cables, sewage or land drains, foundations of former buildings or other hazards or obstructions which are not discoverable upon visual inspection of the surface of the site or made known in writing by the Client to the Contractor prior to the date upon which the Contractor submits the quotation overleaf. If the Client breaches the above warranty the Contractor shall be entitled to make a reasonable charge for all additional work necessarily and properly executed by the Contractor as a result.

10.2 Asbestos known to be on site will require a survey inspection as governed by the HSE Code of Practice, 2012. Works affected by the discovery of asbestos will follow HSE management guidance and all costs associated will be the responsibility of the client.

10.3 Adequate access to the site must be made available by the Client to the Contractor to enable the work to be carried out in a regular and economic manner. If access to site is hindered at the start or during the Works the client is liable for costs in delay, see clause 11.

10.4 The client is responsible for informing neighbours of potential disruption prior to work commencing. Consider parking, material deliveries, skips, noise, and access. The client is liable to any costs in delay, see clause 11.

10.5 The client is responsible for any ensuring the safety of the Contractor staff from pets or livestock. Barriers or removal of pets/ livestock from the site is necessary. Any excrement should be removed by the client. Should animal excrement make the site environment unsafe we reserve the right to stop Works or charge for the removal of waste in order to continue a set £50 fee for each day.

10.6 The client is responsible for providing access to water and electricity for the entirety of the Works. Any delay caused by lack of these amenities, see clause 11.

10.7 The contractor is obliged to remove all construction waste and materials from site ensuring a clean and tidy site on completion of the Works.

11. DELAY/ DISRUPTION

11.1 The Contractor undertakes to use all reasonable endeavours to complete the works within a reasonable time. The Contractor shall incur no liability however for any delays or non-performance arising from force majeure, adverse weather conditions, strikes, lock-outs, war, clauses 10.3, 10.4, 10.6 or other hostilities or any active event beyond his reasonable control in whole or in part.

12. COMMENCEMENTS, COMPLETION, DELAY AND DISRUPTION

12.1 The Client shall give to the Contractor full possession of the Site together with proper and adequate access to allow the Contractor to carry out and complete the Works and the Contractor shall commence the Works on Site on the Commencement Date.

12.2 The Contractor shall take possession of the Site and commence the Works on the Commencement Date and shall proceed with due diligence and use reasonable endeavours to complete the Works by the Completion Date.

12.3 If it becomes reasonably apparent to the Contractor that the progress of the Works is being delayed and/or the Works will not be completed by the Completion Date, the Contractor shall within 7 days of any event or occurrence giving rise to such delay notify the Client in writing of the cause and duration of such delay. The Completion Date will be extended by a fair and reasonable amount of time if the Contractor:

1. a) Has to spend extra time completing the Works because of variations made to the Specification.
2. b) the Works are delayed by any act or omission of the Client
3. c) cannot finish the Works on time for reasons beyond his control such as excessively adverse weather conditions, and/or variable Site conditions and/or any delay caused by the Client (such as , see clause 10.3, 10.4, 10.6) and/or late delivery of supplies to site.

12.4 The Contractor shall be entitled to claim any reasonable additional costs incurred as a result of the Completion date being extended due to any events that may occur in clause 12.3 and such additional costs shall be added to the Contract Sum.

12.5 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the contract.

12.6 Nothing in these terms limits or excludes the liability of the Contractor;

(a) for death or personal injury resulting from negligence; or

(b) for any damage or liability incurred by the Client as a result of fraud or fraudulent misrepresentation by the Contractor.

12.7 Subject to clauses 12.5 and 12.6, the Contractor shall not be liable for:

(a) loss of use; or

(b) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses including loss of enjoyment and injury to feelings; or

(c) loss of profits or business.

12.8 The Contractor’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising out of or in connection with the performance or contemplated performance of the contract shall be limited to the amount of monies actually received by the Contractor under the contract.

13. MATERIALS ON SITE

13.1 Materials delivered to site become the responsibility of the Client, and the Contractor accepts no responsibility for loss, damage or expense after delivery of the materials to site for any reason, including pilfering while materials are on site during the course of the contract works, where such losses are beyond the Contractors reasonable control.

13.2 All materials brought on site by the Contractor, which prove to be in excess of his requirements, shall remain the property of and shall be removable by the Contractor who shall have the right to enter the site for that purpose.

14. MATERIALS

14.1 Where any materials have been incorporated into the Works or the Site, the property in such materials and goods shall pass to the Client immediately upon their incorporation notwithstanding that the value of such materials and goods may not have been included in any interim payment or final payment or any payment received by the Contractor in respect thereof.

14.2 Unfixed materials and goods delivered, placed on or adjacent to the Site and intended for use in connection with the Works shall remain the property of the Contractor until the value of such materials and goods have been included in any interim or final payment and the amount has been discharged whereupon such materials and goods shall become the property of the Client.

14.3 Any excess “left over” materials on completion of the Works are the property of the Contractor and will be removed from site as stated in clause 10.7.

14.4 The Client and the Contractor may agree payment for offsite materials and goods in which case such materials and goods shall become the property of the Client upon payment and shall be so identified.

14.5 The Intellectual Property submitted by the Contractor shall remain the property of the Contractor. It may not be used by the Client, nor reproduced or communicated to a third party without the Contractor’s express prior written consent.

15. MAINTENANCE AFTER COMPLETION

15.1 The Contractor undertakes to execute the basic requirements for the initial establishment of planting and grass areas, but, following the practical completion of the contract, the responsibility for proper maintenance of the site passes to the Client. (Guidance on maintenance operations will be supplied on request).

16. DETERMINATION

16.1 Subject to clause 16.2, the contract shall determine automatically upon the Completion of the Works in accordance with the Specification.

16.2 Without prejudice to its other rights and remedies, the Contractor may by written notice to the Client within 7 days determine its employment under the Contract by reason of any one or more of the following:

1. a) Failure by the Client to observes the provisions of Clause 12 hereof; and/or
2. b) The Client becoming insolvent or committing any act of bankruptcy or, being a company, making an arrangement with its creditors, or (other than for the purposes of amalgamation or reconstruction), the commencing of winding up proceeding or the appointment of a receiver and/or;
3. c) Failure by the Client to give access to the site under Clause 12.1; and/or
4. d) Breach of the Client’s warranty under Clause 10. and/or
5. e) Failure by the Client to accept a quotation issued under the terms of clause 10; and/or
6. f) Suspension of the Works, in whole or in part, for a period of 5 days, whether or not consecutive, due to any act, omission or default of the Client or anyone for whom the Client is responsible. Provided that the Contractor shall have stated the default alleged in a written notice and the Client shall have failed to rectify the default within 7 days of the date of such notice and provided further that the notice of determination shall not be given unreasonably or vexatiously.

16.3 The Contractor will be entitled to be paid by the Client for work properly carried out and/or materials supplied and materials ordered up to the date of determination of the Contractors employment under these Conditions.

17. QUALITY OF ALL WORKMANSHIP

Will be in accordance with recognised constructional and horticultural practice and that materials supplied will be suitable for their intended use. Where normal ground conditions prevail, the contractor warrants a 12- month defects period from the date of practical completion for any workmanship found to be defective due to any cause other than neglect, damage or theft. The contactor is unable to offer guarantees for products supplied outside its own manufacture. Unless otherwise stated, timber supplied will be pressure treated. It should be noted that timber products can be prone to some natural movement in extreme weather conditions for which the contractor can accept no liability.

18. OUR COMMITMENT

All information and advice provided is provided at no cost and to the best of our knowledge with the understanding that no site visit has been made.

19. WASTE

It is the Contractors policy to reduce unnecessary landfill and waste. Where possible, suitable materials will be recycled on site. This is no way effects the quality of work supplied but has a positive effect on the environment and in most cases offers savings on project costs.

20. EXCAVATION/FOUNDATIONS/ SPOIL

Where reasonable inspection of below ground conditions is not possible prior to quotation, the contractor reserves the right to make fair and reasonable charges for extra costs arising from poor underground conditions, obstructions or objects.

21. DISPUTES

21.1 Any dispute, question or difference arising under or in connection with this contract shall in the first instance be submitted to adjudication in accordance with clause 21.2 and thereafter to the exclusive jurisdiction of the English Courts.

21.2 The Client and the Contractor shall have the right to have the dispute or difference referred to such person or persons as the parties may agree to appoint. The BALI Complaints procedure will be the initial path undertaken (details available on BALI Website www.bali.org.uk or BALI HQ on 024 7669 0333). In event that the parties fail to agree upon an independent Adjudicator within 14 days after either party has given to the other written notice to concur in the appointment of an Independent Adjudicator, the Complaints Committee of the British Association of Landscape Industries shall, upon request from either party, offer an Adjudicator. The Adjudicator shall act as expert and shall not be bound to follow the principles of law but may decide the matter submitted to him according to what he considers fair and reasonable in all the circumstances. The costs of the proceedings shall be borne by both parties or as otherwise agreed with the Adjudicator.

22. SEVERANCE

22.1 Each of the provisions of these conditions is separate and distinct from the others and if any of them is held by competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these conditions and the remainder of the provision in question shall not be affected.

23. ASSIGNABILITY

23.1 The Client shall not assign, delegate or otherwise deal with any of his rights and obligations under the contract without the prior written consent of the Contractor.

23.2 The Contractor is entitled to assign its rights and conditions under the contract in whole or in part at any time.

24 RIGHTS OF THIRD PARTIES

24.1 This contract is made for the benefit of the parties to it and (where applicable) their successors in title and permitted assigns and is not intended to benefit or be enforceable by anyone else pursuant to the Contracts (Rights of Third Parties) Act 1999 or analogous legislation.

25. ENTIRE AGREEMENT

25.1 These terms, and any documents referred to herein, constitute the entire agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.

25.2 The Client acknowledges that, in entering into this contract, it has not relied on any statement, representation, assurance or warranty (whether made negligently or innocently) other than those expressly set out in this contract or in the documents referred to in it.

25.3 The Client and the Contractor agree that all liability for and remedies in respect of any representations other than those expressly set out in this contract or the documents referred to in it are excluded (except always that nothing in this clause or elsewhere in these terms shall seek to limit liability for fraudulent misrepresentation(s)).

26. GOVERNING LAW AND JURISDICTION

26.1 This contract and any dispute or claim arising out of it or in connection with it or its subject matter shall be governed by and construed in accordance with the law of England and Wales.

26.2 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.