Kirman Design Terms & Conditions
Kirman Design Terms and Conditions
Kirman Design Terms & Conditions
Kirman Design Terms of Engagement
1.1. This contract is made between the Contractor/Designer (“we” or “us”), and the Client (“you”) as defined in the Proposal. 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, Proposal, price list, order or any other document may be changed without us incurring any liability.
2.1. “Design or Designs” means all concepts and designs including drawings produced by us when performing the Services; “Client” means the individual or organisation who buys or agrees to buy goods or services from the Contractor/Designer and who will be responsible for all payments to the Contractor unless otherwise notified in writing prior to commencement. “Contractor” & “Designer” means Kirman Design. “Fee(s)” means the fees set out in the Proposal or any variation to the Fee; "Project Inspection" has the meaning given to it in Clause 4; “Proposal” 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 agreed by both of us; “Services” means the set of services to be provided by us under this contract as set out in the Proposal; “Site” means the location where the Works are to be carried out as set out in the Proposal; “Works” means all the hard and soft landscaping including preparation, construction and planting work undertaken at the Site to implement the Design(s). “Contract” means the contract between the Contractor and the Client for the purchase of goods and services incorporating these Terms and Conditions. “Goods” means the articles that the Client agrees to buy from the Contractor. “Services” means the provision of landscaping services by the Contractor. “Terms and Conditions” means the terms and conditions of sale set out in this document and any special terms and conditions agreed in writing by the Contractor.
3.1. Nothing in these Terms and Conditions shall affect the Clients statutory rights as a consumer.
3.2. Any variation to these Terms and Conditions, including any special terms and conditions shall be agreed by negotiation between the Contractor and Client and confirmed in writing.
3.3. Any errors or omissions in any sales literature, quotation, price list, acceptance of offer, invoice or other documentation or information used by the Contractor can be corrected in consultation with the client provided that the correction does not materially affect the contract.
4.1. Once the contract is accepted by you, 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.
4.2. 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 not covered in the proposal e.g. electrical work. 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.
4.3. All specifications, figures, sizes and other descriptions in the Design are approximations only and should not be relied upon.
4.4. You may suspend the Services at any time, but all sums due at the date of suspension will become due for immediate payment. 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. Project Inspection
5.1. If we have specified in writing in the Proposal that we will carry out Project Inspection then the following Clause 5 will apply.
5.2. In consideration of payment of the fee specified in the Proposal, we will carry out Project Inspection.
5.3. Project Inspection means that we will conduct site inspections at appropriate intervals of the Works as agreed in the Proposal.
6.1. Either party will be entitled to vary or amend the scope of the Services or the Proposal upon the prior consent of the other party. Any variation will only be effective once the details of the variation (which may take the form of a further Proposal) together with an additional Fee or any variation to the Fee have been put in writing and agreed by both parties, whereupon 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 Proposal. We may refuse to accept a variation if it reduces the value of the contract by five per centum or more.
6.2. 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.
6.3. We may vary these terms and conditions by giving you 7 days’ prior written notice if we are required to do so for reasons beyond our reasonable control.
6.4. The Contractor will give the Client an estimate of the duration of the contract but shall not be liable for any delays for any reason whatever that are beyond the Contractor’s reasonable control such as adverse weather or adverse or difficult site conditions not reasonably foreseen by the Contractor. In any such circumstances the Client and Contractor will negotiate an agreed extension of time.
6.5. If the Client wishes to delay the Contract they must notify the Contractor in writing within seven days of the commencement of the contract.
7. Fees, Price & Payment
7.1. The Fees for the Services are set out in the Proposal and will become fixed on the acceptance of the Proposal by both parties unless varied in accordance with these terms, or unless the Fee is based on the value of the project, or on the size of the site and this is found to be larger once the Site has been measured.
7.2. The Fees will be payable in instalments in accordance with the payment schedule or in the circumstances set out in the Proposal. All invoices shall be paid by the client upon receipt of the invoice and are exclusive of value added tax and delivery charges which shall be added to the invoice where applicable. If sent by post, the invoice shall be deemed to have been received two working days after posting.
7.3. Payment of the total price of the Contract less any deposit paid shall be made to the Contractor after completion of the Contract. The Client shall not be entitled by reason of any alleged minor defect to withhold more than a proportionate amount of the Contract sum.
7.4. The Contractor reserves the right to withdraw from the site if any contract payment schedule is not adhered to.
7.5. The Designer/Contractor reserves 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) that remain payable after the due date.
7.6. If the client fails to pay an invoice by the due date, the designer/contractor may suspend the performance of the Services until payment in full is received.
7.7. Invoices for any work already undertaken will be payable whether or not the client chooses to continue with any design work undertaken, if the build work has been already started or for any other reason.
7.8. Progress payments for contracts equal to or over £3000 will be negotiated between the Client and Contractor prior to acceptance of the contract.
7.9. For contracts under £3000 a deposit of £1000 is required and payment in full will be required on satisfactory completion of the contract.
7.10. Prices in the quotation will remain fixed for 4 weeks after the quotation was issued. Acceptance before that date will ensure no increase in the cost of works specified in the quotation. If the cost to the Contractor of carrying out the Contract is subsequently increased by reason of increases in the cost of materials, labour and any other factor outside the control of the Contractor, then the Contractor shall notify the Client before undertaking any work to which the increase will apply and the Client may require the Contractor to discontinue the work and shall pay the Contractor only for the work carried out.
7.11. The cost of additional goods or services ordered by the Contractor on behalf of the Client will be agreed in writing and subject to the payment conditions detailed above. Any additional work requested which is not specified in writing within this Contract will only be carried out if a new Contract is entered into with the Contractor.
7.12. Title and ownership of materials and equipment will not pass to the Client until payment has been received in full. Legal proceedings may be taken to recover materials and equipment unpaid for.
7.13. The Client can cancel the Contract with reasonable notice and in negotiation with the Contractor. If the Client cancels the Contract they agree to pay any losses and costs the Contractor suffers because of the cancellation. The Contractor can cancel the Contract with reasonable notice and in negotiation with the Client. If the Contractor cancels the Contract he must pay the Client any losses or costs suffered because of the cancellation.
8.1. The Client has certain obligations under this contract. Failure to comply with these obligations may result in us suspending or terminating the contract. If the designer/contractor incurs any damages or fines through your failure to carry out your obligations, then the Client will repay the designer/contractor all such moneys on a full indemnity basis.
8.2. The Client confirms that the site is free from known 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 submission of a quotation. The Contractor cannot be held responsible for any unforeseeable or unknown obstructions below ground and any reasonable additional costs incurred by the Contractor as a result of unforeseen or unknown hazards or obstructions will be agreed with the Client in advance. If the Client is aware of unseen obstructions they must notify the Contractor prior to acceptance of a quotation in writing. If, following acceptance of the contract, the Contractor discovers any obstruction or hazard which was not reasonably foreseeable this will be deemed to be a factor outside the control of the Contractor and accordingly clauses 6.11 and 6.12 shall apply. Should the Client not agree to any reasonable variation to the Contract made necessary by an unforeseen obstruction or hazard in order to complete the contract and to satisfy and Health and Safety requirements, then the Contractor will be entitled to discontinue the work with immediate effect and the Client will pay the Contractor only for work carried out.
8.3. The Client confirms that they will comply with CDM 2015, for their role in any future project works and that they will discharge their responsibilities. Further information can be found at http://www.citb.co.uk/health-safety-and-other-topics/health-safety/construction-design-and-management-regulations/cdm-guidance-documents/ .
8.4. The Client will provide us before commencement of any works with the necessary information in order to carry out the Services in writing. The Client 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. The Client will be liable for any costs that we may suffer if this warranty is not true. No work by the Contractor is intended to confer a benefit on any third party for any purpose.
8.5. The Client must provide reasonable access to mains electricity and water on the site. The cost of providing electricity and water will be borne by the Client.
8.6. The Client will allow the Contractor access to the site within the agreed working hours and throughout the stated time period.
8.7. The Client will notify the designer/contractor in writing of any issues which may affect the Services as soon as possible to enable us at the earliest opportunity to investigate and rectify where necessary; and notify the designer/contractor as soon as possible of any structural alterations that may affect the Works.
8.8. If as part of the Works there is a requirement that any remedial work is required to trees at the Site (including but not limited to cutting down or lopping), 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 any planning permission or licences in respect of the Works unless otherwise agreed in the Proposal. You will cover any fines or damages that are incurred by either party as a result of failing to make such arrangements and you will indemnify us from and against any costs, claims, damages, liabilities and expenses incurred by us arising from any breach of planning permission or licences in respect of the Works.
8.9. The Client is responsible for obtaining any necessary consent for the implementation of works as described in the Contract or specification of works from the local authorities and for ensuring that the implementation of works is in accordance with the provisions of any by-laws. Planning regulations shall not be the responsibility of the Contractor. The Client is also responsible for confirming ownership of land to be worked upon.
8.10. Nothing in this contract shall require the designer/contractor to provide advice or services in connection with the presence of or risk of contamination or pollution by harmful substances. You will be solely responsible for determining what investigations and actions should be taken in relation to such substances and shall commission such professional third party advice as you consider necessary.
8.11. The Contractor agrees to use materials that are suitable for the intended purpose. All materials remain the property of the Contractor until the Contract is completed. If for any reason beyond the Contractors reasonable control the Contractor is unable to supply a particular item, the Contractor will notify the Client. With the agreement of the Client the Contractor will replace it with an item of superior standard and value.
8.12. All materials surplus to the contract will remain the property of the Contractor and will be removed upon completion of the contract.
8.13. The Contractor will be responsible for the safe storage and positioning of equipment and materials on the site at all times.
8.14. The Contractor will carry out work in accordance with Health and Safety regulations and will take all reasonable steps to minimise environmental disturbance, nuisance and pollution.
8.15. The Contractor will carry out and complete the works detailed in the contract in a good, timely and workman like manner.
8.16. The Contractor will not accept responsibility for damage to the Clients premises arising from third parties employed directly by the Client. The Client will be liable for any damages to works and or delay caused by third parties employed directly by the Client.
8.17. The Contractor will carry out a site risk assessment and will ensure all health and safety regulations are met. The Contractor will make arrangements for staff welfare facilities unless otherwise agreed with the client.
9. Intellectual Property Rights and Licence
9.1. The Designer/Contractor is the owner of all intellectual property rights in all the designs, specifications, written material, photography and video arising from works, together with the rights in any developments and modifications in such Designs. We assert the moral rights that we may have in any Designs.
9.2. The Designer/Contractor 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. 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; recreate the Design at a different location or transfer them to anyone else without our prior written permission.
9.3. The Designer/Contractor will be allowed to refer to you in any publicity after the Services have taken place. This document is considered to be written consent for us to take photographs and/or video of the garden before works commence, during the works and when completed. This consent allows us to publish any of the created images/video etc. in any way we see fit, including via the internet, email, printed matter and television. Personal details will not be used in the above unless the client confirms in writing that they do want the Designer/Contractor to use them.
9.4 The provisions of this clause 9 shall remain in full force and effect after termination of this contract for whatever reason.
10.1. In the event of any fault or defect arising in the Services, we shall have the right to remedy such fault where possible by re-supplying the Service. In the event that you do not advise us of any defect in the Services within thirty days after completion of the Services or the provision or delivery of the relevant part of the Services, you shall be deemed to have accepted the Services or part thereof.
10.2. If plants or other goods are provided to you by a separate supplier, those supplies will be provided under a separate contract with your supplier and we can accept no responsibility for that contract or the supplies under it.
10.3. As far as permitted by law, in no circumstances shall we be liable, in contract, tort (including negligence or breach of statutory duty) or otherwise howsoever and whatever the cause thereof (i) for any loss of profits, business, contracts, revenues or anticipated savings or (ii) for any special indirect or consequential damage of any nature whatsoever.
10.4. Nothing in this contract shall affect the statutory rights of a consumer.
10.5. Nothing herein shall limit either party's liability for death or personal injury arising from the proven negligence by itself or its employees.
10.6. We will use reasonable endeavours to comply with any specified delivery dates but no such dates are guaranteed and we exclude liability for any loss (whether direct, consequential or otherwise) resulting from any delay in the delivery of the Services.
10.7. The provisions of this clause 10 shall remain in full force and effect after termination of this contract for whatever reason.
10.8. The non-prevailing party in any dispute under this agreement shall pay all costs and expenses, including expert witness fees and any other legal fees, incurred by the prevailing party in resolving such dispute.
11. Transfer of Rights
11.1. We will be entitled to transfer all or any of our rights or obligations under this contract. You will need our prior written permission before transferring any or all the rights to a third party.
12.1. The Services will start on the date specified in the Proposal. 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.
12.2. 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.
12.3. You may terminate this contract at any time by giving us prior written notice but you will have to pay for the Services carried out up to the date of expiry of the notice. We may also assist you in the cancellation of any third party contracts but we cannot guarantee that you will not have to pay such fees in full subject to the terms of any third party contracts. Any licence that we have given you under Clause 8 will end and you must stop using any Designs immediately.
13. Force Majeure
13.1. Neither party will be regarded as in breach of this Proposal if the failure is as a result of a circumstance beyond that party's reasonable control (Force Majeure). This will include (but not be limited to) the death or incapacity of the garden designer working on the Design(s) or the Contractors working on site. 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).
14.1. 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.
15. Proper Law
15.1. These terms and conditions will be governed by and construed in accordance with the laws of England and Wales. In the event of any dispute we would ask that you contact us in the first instance to resolve any issues in good faith. If this matter is not referred or resolved within 28 days of the matter being raised then the parties will submit to the exclusive jurisdiction of the English Courts.
16.1. Notices to the address specified in the Proposal must be given in writing either by hand or by first class post. Post will be judged to have arrived 2 days from date of posting. Notices sent by other means will be deemed received on delivery.
17. Contracts (Rights of Third Parties) Act 1999
17.1. The parties to this contract 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.
18. Party Wall Act 1996
18.1. If you are required under the Party Wall Act 1996 to appoint a party wall surveyor, then you will be responsible for ensuring that such a surveyor is appointed and we will co-operate and pass all such relevant information to the surveyor as soon as is reasonably practicable.
19.1. If any term of this contract shall be held to be invalid, illegal or unenforceable, the remaining terms shall remain in full force and effect and such invalid, illegal or unenforceable term shall be deemed not to have been part of this contract.
20. Entire Agreement
20.1. This contract, the Proposal and any variation to the Proposal in accordance with clause 6 above contains the entire understanding between the parties and supersedes all previous agreements between the parties. It is expressly provided that nothing in this contract excludes any liability for pre-contract statements or representations made fraudulently.
21. Professional Membership
21.1. All workmanship is guaranteed for 1 year from the date of completion of the works.
21.2. Materials are covered to the extent of the suppliers guarantee.
21.3 As a member of the Association of Professional Landscapers, we are obliged to comply with its Code of Professional Conduct. Please do tell us if you are not happy with any aspect of the Services. Any complaint that the Client has arising from the Contract works must be reported to the Contractor in writing within reasonable time of discovery of the problem. The Contractor will
properly investigate any complaint received and if the Contractor’s work is deemed to be faulty then the Contractor is liable to conduct extra work as deemed sufficient to remedy the fault at no charge to the Client.
21.4. The Contractor will follow the complaint procedure as set out by the Association of Professional Landscapers. A copy of this procedure can be obtained from The Association of Professional Landscapers, Horticulture House, 19 High Street, Theale, Reading, Berkshire RG7 5AH.
22. Supply of Plants and/or Other Goods
22.1. If the Proposal specifies that we will supply any goods or plants then this Clause 21 will be supplemental to our Terms of Engagement.
22.2. “Goods” means the plants and other goods listed in the Proposal;
22.3. You agree to order, and we agree to supply you with, the Goods as described, and at a price, set out in writing. You accept that such description is for guidance only and that there may be slight variations in colour, size and shape of the Goods.
22.4. If requested by you, we will arrange for the delivery of Goods to the Site. If we make the arrangements then the cost of delivery will be set out in the Proposal and will be payable by you. We may deliver the Goods in installments where necessary.
22.5. If in the unlikely event that the costs of supplying the Goods increases between taking your order and the delivery date, we will notify you as soon as possible and will agree the new price with you. If the new price is not acceptable, you will be entitled to cancel the order for such Goods.
22.6. From time to time it may not be possible to supply the Goods you have ordered. If this occurs, we shall offer you items of an equivalent quality, type, age and price to those we are unable to provide, where possible. You will be entitled to accept the equivalent item, choose another alternative or cancel that part of the order.
22.7. The risk in the Goods will pass to you once the Goods are delivered to the Site and you should ensure you have appropriate insurance cover in place.
22.8. Until we have received payment in full for the Goods supplied, the property in the Goods shall remain with us and you shall allow us to enter the location where the Goods are held to take repossession of the Goods.
22.9. If, at the time of delivery, any of the Goods have any defect or damage, please contact us immediately in writing. We shall either repair or replace any Goods which were defective at the time of delivery to you. Our liability is limited to repair or replacement of such Goods by similar goods or plants of similar age and quality appropriate to the season in which they are replaced. We cannot accept responsibility for plants dying or becoming damaged due to neglect or use of inappropriate watering, fertilisation or soil conditions by you or at your property after delivering to you. In the event that you do not advise us in writing of any defect or damage to the Goods within two days after delivery, you shall be deemed to have accepted the Goods.
22.10. If you terminate the contract in accordance with clause 12.3 above, you remain responsible for either (i) the cancellation costs for the Goods we incur with our supplier or (ii) full payment of any Goods that were ordered prior to termination of the contract, whichever shall be the lesser.
23. CHANGES TO CONTRACT AND TERMS AND CONDITIONS
23.1. The Contract will only be varied with the Client’s consent. The Client is entitled to cancel the Contract if the Contract is varied and the variations are not acceptable to the Client.
24.1. It is important that the Client reads and understands the Terms and Conditions that will apply to the Contract before signing.