Terms of Engagement

1.  Contract

This contract is made between Peter Thomas Associates Garden Design whose principal address is at 113 High St. Codicote (“we”) or (“us”), and the Client as stated in the Fees Agreement (“you”). The terms of this contract will override terms that you may have sent or may send to us or any other written correspondence or verbal communication including any advice or recommendation made before we accept the order. Any typographical clerical or other errors or omissions in the catalogue, Fees Estimate, price list order or any other document may be changed without us incurring any liability.

1. Definitions

“Design or Designs” means all designs produced by us when performing the Services;
“Fee(s)” means the fees set out in the Fees Agreement or any variation to the Fee;
“Plants” means the items listed in a planting plan if it has been agreed that we will provide you with the Plants;
“Fees Estimate(s)” means the written document(s) that we send to you together with these terms and conditions for the execution of the Services, which will be signed and agreed by both of us.
“Services” means the set of services to be provided by us under this contract as set out in the Fees Estimate(s). This may include the actual Works if specified in the Fees Estimate;
“Site” means the location where the Works are to be carried out as set out in the Fees Estimate;
“Works” means the all works carried out by us and any other work to be undertaken at the Site by third parties under sub-contract to us.

1. Services
1. Once the contract is signed, we will provide the Services set out in the Fees Estimate. We will ensure that a competent representative carries out the Services. We will provide the Services in a timely fashion but any time deadline set out in the Fees Estimate is only an estimate and we cannot be held responsible for any liability that you may suffer as a result of our failure to meet such deadline.
2. We will only accept liability for the actual Works if we have accepted such responsibility in writing and in advance. Otherwise we may act as agent for you in communicating with third parties but you will contract directly with the third parties and we will not take responsibility for their work.
3. We will arrange for the delivery of all Plants to the Site. The cost of delivery will be set out in writing closer to the date of implementation.
4. You may suspend the Services at any time. Once we receive your further instructions we will use reasonable endeavours to reschedule the Services as soon as is practicable. This rescheduling will not be guaranteed to be at a time requested by you. Any additional cost incurred by us in complying with these instructions will be added to the total Fees unless such suspension was due to something we had done or failed to do.
5. On completion we would ask that you sign a completion report, the signing of such report not to be refused unreasonably. The completion report will signify that you are happy that the Services have been completed in accordance with your instructions and this report will form part of this contract.

1. Variations
1. If required, either party will be entitled to vary or amend the scope of the Services. The parties will sign and agree the details of the variation (which may take the form of a further Fees Estimate) together with an additional Fee or any variation to the Fee prior to the variation being accepted. Once the variation of the Works has been agreed by both parties, including the change to the Fees, then this will form a binding contract between the parties. We will then carry out the varied contract as if the variation was originally included in the Fees Estimate. We may refuse to accept a variation if it reduces the value of the contract by ten per centum or more.
2. If you require services outside of the scope of the Fees Estimate 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.

1. Fees
1. The Fees for the Services will be set out in the Fees Estimate and will be fixed on our acceptance of the Fees Estimate unless varied in accordance with these terms, or unless the Fee is based on size of the Site and this is found to be larger once the Site has been measured. The Fees will be payable in accordance with the payment schedule set out in the Fees Estimate. We reserve the right to charge interest at 8% per annum above the base rate of the Bank of England on any outstanding amounts (calculated on a daily basis). We will not be obliged to carry out any Services until you have paid all of our outstanding debts.
2. If we supply the Plants, then risk will pass to you once the Plants are delivered to the Site and you should take out the necessary insurance cover if it is not already in place.
3. If we provide any Plants directly, then title in such items will only pass to you once we have received payment (or interim payment) as the case may be.
4. Until the time that full title has passed to you, you must do the following on our behalf:
1. Keep the goods separate from your own Site in order that it may be identified as our Site and treat those goods as well as you would treat your own goods (bailee); and
2. Allow us to enter the Site where the goods are held and take repossession of the goods on an all moneys due basis.

1. Your Obligations
1. You have certain obligations under this contract. Failure to comply with these obligations may result in us suspending or terminating the contract. If we incur any damages or fines through your failure to carry out your obligations, then you will repay us all such monies on a full indemnity basis.
2. You will provide us with the necessary information in order to carry out the Services. You will warrant the accuracy of this information and that the information is not subject to any third party rights that would prevent us from using this information. You will be liable for any costs that we may suffer if this warranty is not true.
3. You will allow us reasonable access to both you and the Site at the agreed times in order to carry out the Services.
4. You will notify us in writing of any issues over the Services or any defect in the Works for which we have taken responsibility as soon as possible to enable us the earliest opportunity to correct the fault or to repair or replace the Plants where necessary; and notify us as soon as possible of any structural alterations that may affect the Works.
5. Unless we have given you advance written permission or we have not taken responsibility for the Works under Clause 3.2 above, you will not interfere, tamper, adjust or repair the Works themselves or allow a third party to do any such action.

7.     Intellectual Site Rights and Licence

1. We are the owner of all intellectual property rights in the Designs together with the rights in any developments and modifications in such Designs. We assert the moral rights that we may have in any Designs.
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, but for no other purpose. You may not allow any third party to use any of those Designs; use those Designs on behalf of or for the benefit of any third party; sub-license the use of the whole or any part of those Designs or transfer them to anyone else without our prior written permission.
3. We will be allowed to refer to you in any publicity after the Services have taken place provided we receive your written consent in advance (including the taking and publication of photographs of the Works and the Site).

1. Liability
1. We will warrant for a period of 30 days for either the free repair, or at our option, replacement of any part of the Services or Works that have broken or become defective by reason of any fault in materials or workmanship that we have directly supplied including any Plants or materials and for which we have specifically taken responsibility in the Fees Estimate. We will not be responsible for any fault that has occurred before we started work at the Site and we will not be responsible for checking the Site before starting work.
2. We will not replace or repair any item under Clause 8.1 above if:
1. You have not paid the Fee in full;
2. The defect has occurred because of your or your third party’s wilful damage, or negligence, abnormal working conditions, failure to follow the normal instructions of installation or use of the goods, mis-use, alteration or repair of the item without our contract in advance or such other similar type of act or omission.
3. Any other third party Plants or materials supplied by us are sold to you with only the third party’s warranty (if any). We offer no other warranties or guarantees on these items in any way whatsoever.
4. We exclude to the fullest extent permitted by law all other warranties conditions or other terms implied by statute or common law.
5. Subject to clause 8.6 below our entire liability for a claim or series of connected claims in respect of any act or omission for which we are liable will be limited to:
1. £[10,000] in respect of physical damage to or loss of tangible Site; or
2. The re-payment of the Fee in the case of any other permitted claim under this contract.
6. Except in the event of death or personal injury caused by our negligence we will not be liable in any way whatsoever whether that be under contract, tort or otherwise, for any indirect or consequential loss or damage (whether for loss of profit or otherwise) costs, expenses or other claims for consequential compensation (even if due to our negligence)) that you may suffer as a result of the Services provided under this contract or the supply of any Plants.
7. You will be liable for any other costs that we may sustain as a result of your breach of this contract such as liability, loss, damage or expenses (including legal expenses).

1. Transfer of Rights

We will be entitled to transfer all or any of our rights or obligations under this contract and to use sub-contractors.

1. Termination

The Services will start on the date specified in the Fees Estimate. Either party may terminate this contract at any time by giving the other party advance written notice if the other becomes insolvent or bankrupt, makes any arrangement or composition with its creditors, has any petition filed against it for compulsory liquidation or bankruptcy, has a receiver appointed over any or all of its assets, is unable to pay its/his/her debts as and when they fall due or otherwise ceases to carry on business.
If either party is in breach of any significant provision of this contract (a material breach) then that party will give the other party not less than fourteen (14) days’ written notice to allow them to correct that breach. If that party fails to remedy the breach within the notice period, then the other party will be entitled to terminate the contract with immediate effect at the end of that notice period.
You may cancel the Works by giving us one week’s advance written notice but you will have to pay for all work carried out up to the date of cancellation. We will also do our best to arrange for the cancellation of any third party contracts for which we are responsible but we cannot guarantee that you will not have to pay such fees in full unless you make other arrangements with the parties concerned. Any licence that we have given you under Clause 7 will end and you must stop using any Designs immediately.

1. Force Majeure

Neither party will be regarded as in breach of this Fees Estimate if the failure is as a result of a circumstance beyond that party's reasonable control (Force Majeure). If the Force Majeure continues for a period of one week or more both parties will discuss ways in which to alleviate the situation which will include the possibility of approaching a third party during the period that the Force Majeure exists or if this is not possible to terminate the contract, without either party sustaining any financial liability other than to pay all outstanding Fees that are due up to the date of termination (including contracts that cannot be cancelled).

1. Waiver

If either party chooses not to take up any right of action at any time then this will not prevent that party from taking action on the same or similar point at another time.

1. Proper Law

These terms and conditions will be governed by and construed in accordance with the laws of England and subject to the exclusive jurisdiction of the English Courts.

1. Notices

Notices to the address specified in the Fees Estimate must be given in writing either by hand, by first class post, or by facsimile transmission provided that there is a transmission sheet showing that the transmission was properly transmitted to the correct number. Post will be judged to have arrived 2 days from date of posting. Notices sent by other means will be received immediately.

15. Contracts (Rights of Third Parties) Act 1999
The parties to this Agreement do not intend that any of its terms will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it but this shall not affect any right or remedy of a third party that exists or is available apart from that Act.
Additional Clauses in the event that we take on responsibility for the Works

Add into Clause 3

1. If we are responsible for implementing the Designs then we will carry out the Services at the Site at working hours agreed at the start of the contract unless this is changed subsequently. If you request, and if relevant we will supply you in advance with a list of names of all of our employees and sub-contractor’s employees (if any) who are likely to be entering onto the Site in connection with the Works.
2. We will not trespass on parts of the Site that we are not authorised to enter nor cause damage to the Site of any adjoining owner or occupier. If the Works require us to enter the Site of an adjoining Site, then you will be responsible for arranging permission to do this before the Works start. If you fail to do so you will be liable for any extra costs including our costs resulting from such a delay.

Add into Clause 6
6.6    If as part of the Works there is a requirement that a tree be cut down, then you will make the necessary checks and arrangements that such tree is not subject to any type of protection order. You will also be responsible for the arrangement of any planning permission or licences in respect of the Works. You will cover any fines or damages that are incurred by either party as a result of failing to make such arrangements.