Terms & Conditions

Stem Creative Gardens

Initial Consultation and Design Services Terms & Conditions

v.1.1

 

1. Definitions

1.1        “the Client” or “You” means the person who buys or agrees to buy the design from the Company

1.2        “the Company” or “We” means Stem Creative Gardens.

1.3        “the Conditions” means the terms and conditions of sale set out in this document and any special terms and conditions agreed in writing by the Company

1.4        “the Delivery Date” means the date specified by the Company when the Design is to be delivered

1.5        “the Design” or “Designs” means the drawings prepared by the Company for implementation on the survey site only, which the Client agrees to buy from the Company.

1.6        “the Price” means the price of the Design including VAT at the prevailing rate if applicable.

1.7        “the Questionnaire” means the questionnaire to be fully and comprehensively completed by the Client before the proposal is produced

1.8        “the Site” means the site detailed in the questionnaire by the client.

1.9        These terms and conditions will be governed by and construed in accordance with the laws of England and Wales.

 

2. A Conditions Applicable to Initial Consultation Service

2a.1      the initial consultation service takes place prior to the production of a proposal and provides a consultation with a garden designer in which we will take a brief for your project, take initial measurements of the site and record any relevant information.

2a.2      the initial consultation is offered at a fixed price, regardless of the length of time spent at the site, up to a maximum of 2 hours.

2a.3      it is the Client’s responsibility to complete and return to us a questionnaire in advance of the Initial Consultation, if we request. Further information may be recorded on the questionnaire during the consultation

2a.4      following the initial consultation you will receive a proposal to design your garden, you will not be supplied with any drawings or sketches following the consultation.

2a.5      Payment for the initial consultation is required in full at the time of requesting, before the consultation takes place.

2a.6      you may cancel the Initial Consultation Service and receive a full refund by writing to us within 14 days of requesting and before the Consultation is carried out. You may not cancel once the consultation has taken place.

2a.7      we reserve the right to make an additional charge should you cancel or re-arrange an appointment with less than 1 working day’s notice.

 

2. B Conditions Applicable to Design Service

2b.1      These Conditions shall apply to the Contract for the sale of the Design by the Company to the Client to the exclusion of all other terms and conditions including any terms and conditions that the Client may purport to apply under any purchase order confirmation or similar document.

2b.2      we will provide the Services set out in the Proposal using reasonable skill and care in accordance with standards expected of a reasonable garden designer. We will provide the Services in a timely fashion but any time deadline set out in the Proposal is only an estimate

2b.3      this is a design and consultancy only agreement. We may assist you in communicating with third parties but it is your responsibility to contract directly with third parties to carry out the Works. We will not be responsible for the work undertaken by third parties, the manner in which the Works are being carried out nor any other aspect of their progress.

2b.4      Acceptance of delivery of the Design shall be deemed to be conclusive evidence of the Client’s acceptance of these conditions.

2b.5      Any Variation of these conditions (including any special terms and conditions agreed by the parties) shall be inapplicable unless agreed in writing by the Company.

2b.6      you may cancel the Design Service and receive a full refund by writing to us within 14 days of accepting the proposal. Cancellation after this period will require payment in full.

 

3. Price and Payment

3.1        The Price shall be the Company’s quoted price as specified by the company

3.2        In addition to the Price the Company reserves the right to make a charge of 3.5% of the total Price plus VAT if payment is made by credit card or debit card, or the prevailing rate at the time.

3.3        The Company shall not be bound to deliver the Design until the Client has paid the Price and all additional charges in full and final payment.

3.4        If you require services outside of the scope of the Proposal or at a higher level of service than that currently subscribed, then we will try to carry out such service at our convenience and for a fee that we will set at that time.

 

4. The Design

4.1        The Design shall be prepared in total reliance upon the details and information supplied by the Client in the Questionnaire.

4.2        The Company shall have no liability whatsoever to the Client for any error, mistakes or misinterpretations in the Design which arise as a direct result of any error, omission or lack of clarity in the questionnaire or all other information provided.

4.3        The Company shall be under no liability whatsoever to the Client in connection with the future implementation of the Design and shall not be liable for any direct or indirect loss or expense incurred by the Client upon implementation.

 

5. Warranties and Liability

5.1        The Company warrants that the design has been prepared in accordance with the information provided by the Client.

5.2        The Company in supplying the Design gives no warranty and makes no representation as to the necessity or otherwise for planning permission, building regulations approval or any further permissions or approvals which may be required by the relevant Authority, in connection with implementation of the Design. The Client must make all enquiries and satisfy himself as to all requirements for planning permission, building regulation approval or approvals which may be required on the implementation of the Design.

5.3        The Company and the Client hereby agree and acknowledge that the Company has no physical knowledge of the Site and the Company has therefore has no liability whatsoever to the Client in connection with any physical or environmental impediments at the Site which hamper or obstruct the implementation of the Design.

5.4        The Company does not warrant that the design is drawn to scale.

 

6. Delivery of the Design

6.1        Due delivery of the Design shall be deemed to have been made upon despatch of the Design from the Company by post or in person.

6.2        Proof of despatch by the Company will be conclusive proof of delivery.

6.3        The Company shall not be liable for any loss or damage whatsoever due to failure by the Company to deliver the Design.

 

7. Acceptance of the Design

7.1        The Client will be deemed to accept the Design after delivery.

7.2        After acceptance the Client shall not be entitled to reject a Design, which is in accordance with this Contract.

7.3        Title shall pass on the delivery of the Design.

7.4        Risk shall pass on the delivery of the Design

 

8. Intellectual Property

8.1        The Design shall (including the copyright, design right and other intellectual property in it) as between parties be the property of the Company.

8.2        We will grant you a non-exclusive, perpetual, non-transferable and personal licence to use the Designs for your own internal business or residential purposes at the location set out in the Proposal, but for no other purpose.

8.3        We may use, at our discretion, the Design for publicity purposes after completion, this includes the taking and publication of photographs of the Works and the Site. Any use of photography will be anonymous and will not identify the exact location of your property.

 

9. Liabilities of the Client

9.1        Where the Client accepts or has been deemed to accept the Design then the Company shall have no liability whatsoever to the Client in respect of the Design.

9.2        The Company shall not be liable to the Client for late delivery of the Design.

 

10. Headings

10.1      All headings are for ease of reference only and shall not affect the construction of this Contract.

 

11. Severance

11.1      Any provision in this Contract which is or may be void or unenforceable shall be to the extent of such invalidity or unenforceability being deemed severable and shall not affect any other provisions in this Contract.

 

12. Waiver

12.1      No waiver or forbearance by the Company (whether express or implied) in enforcing any of its rights under this Contract shall prejudice its right to do so in the future.

 

13. Sub-Contracting

13.1      The Company may licence or sub-contract all or any part of its rights and obligations in this contract without the Client’s consent.

 

14. Force Majuro

14.1      Neither party shall be liable for any default due to any act of god, war, strike, lock-out, industrial action, flood, drought, tempest or other event beyond control of either party.

 

15. Company’s Cancellation

15.1      The Company may cancel this contract at any time before the design is delivered by giving written notice and on such notice shall promptly repay to the Client any sums paid in respect of the Price and the Company shall not be liable for any loss or damage arising from such cancellation

 

Terms and Conditions – Construction

Either party may apply to:

The Association of Independent Construction Adjudicators
56/64 Leonard Street
London
EC2A 4JX
Telephone: 020 7608 5221
Fax: 020 7608 5081

for the nomination of a registered adjudicator.

AICA will provide an adjudicator within 3 working days of receipt by them of a properly completed application form and the appropriate fee. This is a legally binding document. Do not sign this document unless;

(a)    you understand its content and
(b)    you wish to be bound by it

CONDITIONS OF CONTRACT (“THE CONDITIONS”)
FOR LANDSCAPE WORKS IN CONSUMER CONTRACTS

1    DEFINITIONS AND INTERPRETATIONS

1.1    In these terms and conditions the following definitions apply:-

“Appendix”: shall mean the appendix to these Conditions.

“Client”: the person(s), firm or company identified in the Appendix.

“Commencement Date”: the date on which the Contractor is to commence the Works as identified in the Appendix.

“Completion Date”: the date by which the Contractor is to complete the Works as identified in the Appendix.

“Contractor”: the person(s), firm or company identified in the Appendix.

“Contract Sum”: The sum stated in the Estimate, no adjustment shall be made to such sum except as provided in the se Conditions.

“Contract Documents”: consist of these Conditions, the Estimate and any specifications and drawings referred to therein.

“Estimate”: shall have the meaning given at clause 3.1.

“Site”: means the site briefly described in the Appendix.

“Variation”: shall have the meaning given at Clause 3.5.
“Works”: the works identified in the Estimate including (where appropriate) the supply of goods, materials, and labour to be carried out at the Site in accordance with these conditions.

1.2    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 whether introduced before or after the date of the Estimate (unless expressly identified and agreed in writing by the Client).

1.3    No deletion, substitution or amendment to the Conditions shall take effect unless expressly agreed in writing by the Contractor.

1.4    If there is any inconsistency between the specification and the drawings, the specification shall prevail.

2    CONTRACT WORKS

2.1    The contractor shall carry out and complete the landscape works described in the Contract Documents in a good workmanlike manner.

2.2    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 or other authority 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.

3    CONTRACT SUM

3.1    The Contractor shall provide an estimate in writing specifying the Works to be carried out and a breakdown of the cost of the Works (“The Estimate”).

3.2    The Estimate shall remain open for acceptance by the Client for 30 days from the date of the Estimate. If the Estimate is not accepted in writing within this period, the Estimate will lapse and be deemed to have been withdrawn.

3.3    If the Client accepts the Estimate in writing within the period stipulated in Clause 3.2, the price contained in the Estimate shall become the Contract Sum and no adjustment shall be made to the Contract Sum except as expressly provided in these Conditions.

3.4    If the Contractor requires a banker’s reference a binding contract will not come into existence until the Client has provided a banker’s reference, which is satisfactory to the Contractor. Otherwise a binding contract will come into existence when the Client accepts the Estimate in writing in accordance with Clause 3.3.

3.5    The Client may issue to the Contractor reasonable instructions to vary and modify the quality and quantity of the Works (“Variation”).

3.6    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. All instruction issued in an emergency shall be confirmed in writing within 3 days. If an emergency instruction for whatever reason is not confirmed in writing within 3 days, the Contractor shall be entitled to be paid for work properly carried out in accordance with that instruction.

3.7    If the Variation will alter the cost of carrying out the Works, the Contractor will provide a written Estimate for the cost of carrying out the Variation and the effect it will have on the Completion Date, and the Client and the Contractor will seek to agree and adjustment to the Contract Sum. If following receipt of that estimate the Client wishes to proceed with the Variation, the Client shall confirm his instruction to proceed with the Variation to the Contractor in writing, and confirm that the Estimate and the extended Completion Date are agreed.

3.8    If the Client and the Contractor have not agreed or cannot agree an adjustment to the Contract Sum for the Variation in accordance with Clause 3.7, the Client can either withdraw the instruction or instruct the Contractor in writing to proceed with the Variation and the Contract Sum will be adjusted as follows:-
3.8.1    where any additional, substituted or omitted work is of a similar nature or character to any parts of the Works such works shall be valued by reference to the cost breakdown set out in the Estimate;

3.8.2    otherwise such work shall be valued at fair rates and prices and any additional payment due to the Contractor or any extension to the Completion Date the Contractor is entitled to, shall be added to the Contract Sum and Completion Date respectively.

4    PAYMENT

4.1    The contractor shall be entitled to receive interim payments at the intervals stated in the Appendix. If no payment interval is agreed the first interim payment shall be due not later than 28 days after commencement of the Works.

4.2    The Contractor shall make an application for payment to the Client not more than 7 days before then end of each payment period identifying the value of the Works and all sums properly due up to the end of that payment period.

4.3    Each interim payment shall become due on the following dates.

4.3.1    where monthly payment periods apply the first interim payment shall not become due until 28 days after work has commenced on Site, thereafter payment shall become due 28 days after receipt by the Client of the Contractor’s application;

4.3.2    where fortnightly payment periods apply the first interim payment shall not become due until 14 days after work has commenced on Site, thereafter payment shall become due 14 days after receipt by the Client of the Contractor’s application;

4.3.3    where weekly payment periods apply the first interim payment shall not become due until 7 days after work has commenced on Site, thereafter payment shall become due 7 days after receipt by the Client of the Contractor’s application.

4.4    Without prejudice to the Contractor’s other rights and remedies, if the Client shall fail to pay as provided in this clause 4, the Contractor shall be entitled to suspend Works 7 days after giving written notice to that effect to the Client.

4.5    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 Conditions.

4.6    The Client may at any time request appropriate evidence of the Contractor’s current VAT registration status. Where the Contractor fails to provide such evidence within 28 days of its request the Client may withhold any amounts attributable to VAT on any outstanding payment.

5    COMMENCEMENT, COMPLETION, DELAY AND DISRUPTION

5.1    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 a date to be agreed by the Client and Contractor “the Commencement Date” or, if not so agree, on a date not later than 90 days from the date of the Estimate.

5.2    The Contractor shall take possession of the Site and commence the Works on the Commencement Date and shall proceed with due diligence and complete the Works by the Completion Date.

5.3    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 a delay.

5.4    The Completion Date will be extended by a fair and reasonable amount of time if the Contractor:

5.4.1    has to spend extra time completing the Works because of Variations made to the work details as contained in the Contract Documents; or

5.4.2    the Works are delayed by any act or omission of the Client; or

5.4.3    cannot finish the Works on time for reasons beyond his control such as excessively adverse weather conditions, and/or other variable Site conditions and/or any delay caused by the Client;

5.4.4    the Contractor shall be entitled to claim any reasonable additional costs incurred as a result of the Completion Date being extended due to any of the events in Clause 5.4 and such additional costs shall be added to the Contract Sum.

5.4.5    Notwithstanding clause 5.2, 5.3 and 5.4 above the Contractor hereby excludes liability to the Client for any loss, cost or damage of whatsoever kind to the fullest extent permissible by law arising out of or as a consequence of its failure to perform or complete the Works by reason of matters beyond the Contractor’s control and which it could not have reasonably foreseen at the date of the Estimate.

6.0    MAINTENANCE AFTER COMPLETION

6.1    Following completion of the Works, the Client shall be responsible for the maintenance of the Site.

7.0    DETERMINATION

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

7.1.1    failure by the Client to make payment in accordance with Clause 4 hereof; and/or

7.1.2    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 or amalgamation or reconstruction), the commencing of winding up proceedings or the appointment of a receiver; and/or

7.1.3    failure by the Client to give access to the Site under Clause 5.1; and/or

7.1.4    breach of the Client’s warranty under Clause 8.1; and/or

7.1.5    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.

7.1.6    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 5 days of the date of such notice and provided further that the notice of determination shall not be given unreasonably or vexatiously.

7.2    Without prejudice to its other rights or remedies, the Client may by written notice to the Contractor determine the employment of the Contractor if the Contractor;

7.2.1    fails to proceed regularly and diligently with the Works; or

7.2.2    fails to inform the Client in writing that the Contractor has become insolvent or committed any act of bankruptcy or being a company, making an arrangement with its creditors, or (other than for the purposes of an amalgamation or reconstruction) the commencing of winding up proceedings or the appointment of a receiver.

7.3    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 Contractor’s employment under these conditions.

8.0    THE SITE

8.1    The Client warrants that the Site is free of springs, flooding, rock, tree stumps not specified to be removed, min workings, covered wells or other cavities, running sand, service pipes and cables, sewage or land drains, foundations and sub-structures of former buildings or other hazards or obstructions except those which have been made known in writing by the Client to the Contractor prior to the date of the Estimate.

8.2    Without prejudice to his other rights and remedies, if the Client is in breach of the warranty under Clause 8.1, the Contractor may at his sole option proceed with the Works provided the Contractor has provided an Estimate for the work which has been accepted by the Client in writing in accordance with Clause 3.2 and 3.3 and shall be entitled to reasonable payment for any additional works or materials caused by the breach of warranty. Such amount shall be added to the Contract Sum.

9.0    MATERIALS

9.1    Where any materials have been incorporated into the Works and/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 any payment received by the Contractor in respect thereof.

9.2    Unfixed materials and good 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.

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

9.4    All plants, trees and turf supplied shall be true in name and healthy when planted. The Contractor shall not be responsible for any loss howsoever arising after planting unless the loss suffered is a direct consequence of the Contractor’s failure to perform or to complete the Works as provided. Replacement of any plants found to be defective during the first growing season after planting shall be at the absolute discretion of the Contractor. Replacement will only be considered if the plants have been maintained properly by the Client and the Client shall have advised the Contractor in writing as soon as the loss or damage became apparent and the Contractor shall have been afforded the opportunity to inspect the affected plants or areas.

9.5    The grass seed supplied shall have been tested and shall conform to current EC Regulations. The Client acknowledges that a sward cannot be made in one season and several seasons and careful cultivation, weeding and feeding are essential and that no land is free from weeds and that accumulated weed growth and dormant weeds seed cannot be eradiated in a limited number of cultivations. When agreeing to cultivate land, the Contractor shall have no liability for subsequent weed growth.

10.    DISPUTES

10.1    Any party to this contract shall have the right to refer any dispute or difference arising from the contract and occurring within the contract period to adjudication for resolution.

10.2    In the event of a dispute or difference arising, either party may apply to the Association of Independent Construction Adjudicators (at 56/64 Leonard Street, London EC2A 4JX, tel 020 7608 5221, fax 020 7608 5081) for the nomination of a Registered Adjudicator, having first given the other party 7 days written notice of their intent to refer the dispute to adjudication to the other party.

10.3    The AICA will nominate an adjudicator within 3 working days of receipt by them of a properly completed application form accompanied by a cheque for the appointment fee then prevailing.

10.4    The parties shall be jointly and severally liable for the payment of the adjudicator’s reasonable fees and expenses and the adjudicator shall have power, when making his decision, to decide upon the allocation of his fees and expenses.

10.5    The rules governing an adjudicator shall be those set down in the Scheme for Construction Contracts (England and Wales) Regulations 1998, for contracts in England and Wales.

11.    NOTICES

Any notice under these terms and conditions shall be given in writing and sent by either pre-paid first class post or recorded delivery to the respective parties’ address stated in the Order and shall be deemed to have been received 48 hours after the date of posting.

12.    RIGHTS OF THIRD PARTIES

A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from the Contracts (Rights of Third Parties) Act 1999.

13.    THE PROPER LAW OF CONTRACT

This Contract shall be governed by and shall be construed with English Law.