Terms

 

GENERAL TERMS AND CONDITIONS OF CONTRACT

1. DEFINITIONS

1.1 In these conditions the following words and expressions shall have the following meaning:-

"the Company" means FGS Landscapes Limited trading as FGS Group.

"the Customer" means the person, partnership or company who has placed the order with the Company.

"the Goods" means the goods sold pursuant to the Contract.

"the Services" means the services offered or to be supplied pursuant to these conditions.

"the Contract" means the Quotation together with these Terms and Conditions.

"the Contract Price" means the price payable by the Customer for the Goods and Services pursuant to the Contract.

"the Order" means the Customer’s acceptance of the quotation overleaf subject to these Conditions.

"Quotation" means the quotation set out overleaf.

"Works" means delivery of the Goods and the performance of the Services.

1.2 These Conditions shall govern the sale of any Goods and the supply of any Services by the Company to the exclusion of any other terms and conditions that may be provided from time to time by the Customer.

1.3 The Quotation overleaf shall be construed as an invitation to treat and any Order placed thereon are strictly subject to acceptance by the Company.

2. PROVISION OF GOODS AND SERVICES

2.1 The Company shall provide the Goods and perform the Services with reasonable skill and care and in a good and workmanlike manner. If there is any inconsistency between the specifications, the bills of quantities and the drawings shown in the Quotation, the drawings shall prevail.

2.2 Subject to the Customer’s strict compliance with the conditions contained herein and to any other terms expressly stated in these Conditions, the Company warrants for a period of one year from the date of delivery that the Goods will conform to any specifications set out in the Quotation or otherwise expressly agreed to in writing by the Company.

2.3 The warranty in clause 2.2 above does not apply to

2.3.1 The growth or productiveness of the Company’s product after delivery;

2.3.2 Any defect arising from wilful damage, negligence of the Customer, failure to follow the Company’s reasonable instructions for operation and maintenance, or alterations or repairs not performed by the Company;

2.3.3 Any consumable items including but not limited to organic substances, plant pots, light bulbs etc.

2.3.4 The consistency of the finish colour where timber surfaces have been stained; and

2.3.5 Where oak has been provided, the splitting and/or twisting of the oak materials where such materials have suffered from movement.

2.4 In the event of a breach of this warranty and upon

2.4.1 Written notice of such breach by the Customer to the Company; and

2.4.2 Verification by the Company of the breach to its reasonable satisfaction,

The Company will repair or remedy the breach, or at its discretion, replace the defective Goods or re-perform the defective Services.

2.5 Notwithstanding any other provision of these terms and conditions, the Company does not provide any warranty related to, and shall not have any liability for, products and equipment produced by third parties. In relation to such components, the Company will use reasonable endeavours to allow the Customer the benefit of such rights against the manufacturer as the Company may have.

2.6 Orders accepted by the Company cannot be cancelled or shipments deferred by the Customer, except with the written consent of the Company and upon terms that will compensate the Company against all loss caused by such cancellation or deferral on an indemnity basis.

2.7 The Company shall be entitled to cancel any Order at any time by giving written notice to the Customer other than if a deposit has been paid. If the Company exercises its right to cancel it shall have no liability in respect of the contract or in respect of any damage whatever arising from the cancellation subject to any prepaid deposit being returned to the Customer.

3. CONTRACT PRICE

3.1 The Contract Price shall be the sum stated in the Quotation and no adjustment shall be made to such sum except as expressly provided in these Conditions.

3.2 The Quotation shall remain open for a period of 30 days from the date shown overleaf. Thereafter the Contract Price shall be adjusted in accordance with clause 3.3.

3.3 This clause shall apply if clause 3.2 has been deleted and otherwise only after the period specified in clause 3.2 has elapsed. The Contract Price shall be deemed to have been calculated upon the cost of labour, plant, materials, transportation, taxes, duties and levies of whatsoever kind, (but exclusive of Value Added Tax) current at date of Quotation and shall be adjusted to take into account of any increase or decrease in the wage rates, hire charges, price of materials, transport charges, statutory taxes, duties and levies and any other costs and charges howsoever arising and from whatsoever cause.

3.4 Variations of the design, quality or quantity of the Goods or Services required by the Customer must be in writing and are strictly subject to the Company’s agreement which may be withheld at the sole discretion of the Company. Where any variation is agreed any additional costs or charges shall be added to the Contract Price and the Company shall be entitled to include such amounts in any invoices issued to the Customer under the provision of clause 4. Site personnel have no authority to act for the Company in receiving instructions or agreeing any amendment of these conditions.

4. PAYMENT

4.1 Payment shall become due and shall be made in full without deduction or deferment on account of disputes, cross clauses, set-off or discounts of whatsoever kind no later than 30 days from the date of any invoice rendered by the Company.

The Company shall be entitled to charge interest on any sums not so paid. Such interest shall be calculated on a day-to-day basis on the amount outstanding at the rate of 2% above the arithmetic average, for each day, of the base rate for lending of HSBC Bank PLC in London.

4.2 Without prejudice to the Company’s other rights and remedies, if the Customer shall fail to pay as provided in clause 4.1, the Company shall be entitled to suspend work 5 days after written notice to the Customer to that effect.

4.3 Invoices may be rendered at intervals of 14 days at the discretion of the Company.

4.4 All goods shall remain the sole and absolute property of the Company as legal and equitable owner until such time as the Customer shall have paid to the Company. The agreed price together with the full price of any other goods the subject of any other contract with the Company and the Company may reclaim such goods as soon as the payment for then becomes overdue, without having to rescind the Contract with the Customer.

4.5 In order to protect the Company’s interest in Goods for which payment in full has not been received The customer shall forthwith, if called upon to do so, register a charge in favour of the Company on such goods or a floating charge in favour of the Company on the customers business.

5. COMMENCEMENT, COMPLETION, DELAY AND DISRUPTION

5.1 The time of delivery will be at the Company’s discretion unless other arrangements are made by the Customer and will be notified to the Customer no less than 10 days prior to delivery. Delivery is conditional on payment on the Contract Price in accordance with clause 4. The Customer shall give full possession of the site together with proper and adequate access on the date of delivery. The time of delivery and installation shall not be of the essence and the Company shall have no liability to the Customer for any late delivery or installation.

5.2 To the extent that disruption and/or delay to the completion of the work arises as a consequence of some interference, act, omission, default, neglect, instruction or variation of the Customer, his servants or agents or others for whom the Customer is or may become responsible the Company shall be entitled to payment of such loss, costs and/or expense as may arise directly or as a consequence thereof and the Contract Price shall be adjusted accordingly. The Company shall be entitled to include such amounts in any invoice or invoices issued to the Customer under clause 3.

5.3 Where the Company or its agents deliver the Goods risk in the Goods shall pass when the delivery vehicle enters on to the Customer’s property or if it is not possible for the delivery vehicle to enter the Customer’s property, when the delivery vehicle parks for the Goods to be unloaded onto the Customer’s property.

6. INSPECTION AND ACCEPTANCE

6.1 Receipt by the Company of the Order shall be conclusive evidence of the sale. All sales are final and no returns will be accepted without prior written authorisation from the Company.

6.2 The Customer must examine the Goods and the Services immediately following installation and within 5 days thereafter notify the Company in writing of any defects and where possible return any allegedly defective part or parts of the Goods to the Company or as the Company shall direct. In default the Customer will be deemed to have examined and accepted the Goods and Services.

7. MAINTENANCE AFTER COMPLETION

Following Completion of the Works, the Customer shall be responsible for the proper maintenance of the site unless otherwise agreed.

8. DETERMINATION

8.1 Without prejudice to its other rights and remedies, the Company may by written notice to the Customer or to any person in who the Contract may have become vested forthwith determine the Contract by reason of any one or more of the following:

a) Failure by the Customer to observe the provisions of clause 4 hereof and/or

b) The Customer 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 proceedings or the appointment of a receiver and/or

c) Failure by the Customer to give access to the site under clause 5 and/or

d) Breach of the Customers warranty under clause 9 and/or

e) 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 Customer or anyone for whom the Customer is responsible.

Provided that the Company shall have stated the default alleged in a written notice and the Customer shall have failed to rectify the default within 5 days of the date of such notice and provided that the notice of determination shall not be given unreasonably or vexatiously.

8.2 Following any determination under clause 8.1, the Company shall be entitled to be paid the value of all work carried out and materials supplied and materials not supplied, but for which the Company is legally obliged to pay and the amount of any loss and/or damage caused to the Company as a result of such determination and the Contract Price shall be adjusted accordingly. The Company shall be entitled to include such amounts in any invoices issued to the Customer under the provisions of clause 4.

9. THE SITE

9.1 The Customer warrants that the site and access to the site is free of springs, existing fencing, shrubs, undergrowth, trees, rubbish, flooding, rock, brick, tarmac and other hard materials, 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 and sub-structures of former buildings or other hazards or obstructions which are not reasonably apparent by visual inspection of the site or which have not been made known in writing by the Customer to the Company prior to the date of the quotation overleaf.

9.2 Without prejudice to his other rights and remedies, if the Customer is in breach of the warranty under clause 9.1, the Company may proceed with the Works and shall be entitled to reasonable payment for any additional work or materials caused by the breach. Such amount shall be added to the Contract Price and the Company shall be entitled to include such amounts in any invoices issued to the Customer under the provisions of clause 4.

10. MATERIALS

10.1 Property in Goods supplied by the Company will pass to the Customer when:

10.1.1 The Goods which are the subject of this contract and

10.1.2 All other materials which are the subject of any other contract between the Customer and the Company which at the time of payment of the full Contract Price of materials supplied under the contract, have been delivered and not paid in full have been paid in full.

10.2 The Company shall not be responsible for loss after planting from whatsoever cause. Replacement of any plant found to be defective during the first growing season after planting shall be at the absolute discretion of the Company.

Replacement will not be considered unless the plants have been maintained properly and the Customer shall have notified the Company in writing as soon as the loss became apparent and the Company shall have been afforded opportunity to inspect to its reasonable satisfaction.

10.3 The Customer acknowledges that

10.3.1 an award cannot be made in one season and several seasons and careful cultivation, weeding and feeding are essential; and

10.3.2 that no land is free from weeds and accumulated weed growth; and

10.3.3 dormant weed cannot be eradicated in a few cultivations.

10.4 When undertaking to cultivate land, the Company shall have no liability for subsequent weed growth.

11. LIMITATION OF LIABILITY

11.1 Subject as expressly provided in these terms and conditions the Company disclaims all other warranties and conditions of any kind with respect to the Goods and Services either express or implied, including without limitation, any implied warranties or conditions of merchantability and fitness for a particular purpose to the fullest extent permitted by law.

11.2 The remedy set forth in clause 2.2 is the Customer’s sole and exclusive remedy relating to the Goods and Services, including their use, performance or non-performance.

11.3 The Company shall have no liability to the Customer or any other person, for special, indirect, incidental or consequential damages related to the Contract including without limitation damages due to

11.3.1 loss of business

11.3.2 revenue

11.3.3 goodwill

11.3.4 profits, regardless of the form of action, whether in contract, tort, or otherwise, and whether or not the Company is informed of the possibility thereof in advance.

11.4 Nothing in these Conditions shall exclude or limit, or be construed as excluding or limiting, any liability of the Company for death or personal injury caused by its negligence and if the Customer is a consumer, these terms and conditions will not effect any rights which the Customer may have under any Act or Parliament and which cannot be excluded by agreement – Occupiers Liability Act.

11.5 The Company shall not be liable and the Customer shall indemnify and hold the Company harmless against any claim by or any loss or damage to any person or property occasioned directly or indirectly by or arising from the use or operation or possession of the Goods or any part of them and from negligence (including the use of any part of the Goods otherwise than in accordance with the Company’s instructions) or default or mis-use by or on the part of the Customer or any person or persons other than the Company and this indemnify shall extend to any cost and expenses incurred by the Company.

11.6 The Company’s total liability in connection with the Contract shall not exceed the higher of the amounts paid by the Customer for the Goods and Services directly related to the damage, and £100,000.

12. TITLE

12.1 In spite of delivery having been made the property in the Goods shall not pass from the Company until the Customer shall have paid the Contract Price plus VAT in full and any sums whatever due from the Customer to the Company.

12.2 Until property in the Goods passes to the Customer in accordance with clause 12.1, the Customer shall hold the Goods and each of them on a fiduciary basis as bailee for the Company. The Customer shall where possible store the Goods (at no cost to the Company) separately from all other Goods in its possession and marked in such a way that they are clearly identified as the Company’s property.

12.3 Until such time as property in the Goods passes from the Company, the Customer shall upon request deliver up such of the Goods that have not ceased to be in existence or been re-sold to the Company. If the Customer fails to do so the Company may enter upon any premises owned, occupied or controlled by the Customer where the Goods are situated and repossess the Goods.

12.4 The Customer shall ensure and shall keep insured with a reputable insurance company the Goods against all risks from the time risk passes to it until such time as property in the Goods is vested in it in accordance with clause 12.1 and the Customer shall indemnify the Company against any costs, claims, losses or expenses of any kind incurred by the Company as a result of its failure to do so.

13. DISPUTES

13.1 In the event of any disputes or differences arising out of or in connection with this contract, the same shall be referred to such person as the parties may agree to appoint as Mediator or failing agreement with in 14 days after either party has given to the other written notice to concur in the appointment of a mediator as may be appointed by the National Council of British Association of Landscape Industries (BALI).In the event that the dispute is not resolved by mediation within 6 weeks of referral, then either party may commence proceedings in the courts of England and Wales.

14. MISCELLANEOUS

14.1 If any provision of the Contract shall be held to be unenforceable by a court of appropriate jurisdiction, then such provision shall be enforced to the maximum extent permitted by applicable law and the remaining provisions of the Contract shall remain in full force and effect.

14.2 The Contract is subject to English Law and the parties submit to the exclusive jurisdiction of the English courts.

14.3 The Contract represents the entire agreement between he parties may not be modified except in writing and signed by both the Customer and a director of the Company.

14.4 If the Customer is a consumer, terms of this Contract will not affect any rights which the Customer may have under any Act of Parliament and which cannot be excluded by agreement.

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