TERMS AND CONDITIONS
These Terms and Conditions shall apply to the provision of services by Rain-or-Shine Services of 39 Harvine Walk, Stourbridge, DY8 3BQ (Rain-or-Shine) to customers that require their services.
Definitions and Interpretation
1.1In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
means the contract into which the Parties will enter on the Customer’s acceptance of the Quotation and of these Terms and Conditions which shall incorporate, and be subject to, these Terms and Conditions [and which is attached hereto as Schedule 1];
means the date on which the provision of the Services will commence as agreed by the Parties [as evidenced in Schedule 1];
means the times which the Parties shall agree upon during which theGardener shall have access to the Property to provide the Services[as set out in Schedule 1];
means any day (other than a Saturday or Sunday) on which ordinary banks are open for their full range of normal business in England;
means the customer that requires the Services subject to these Terms and Conditions and the Agreement;
means the sums payable in consideration for the Services (including any Products provided) that shall be shown on the invoices issued in accordance with Clause 3 of these Terms and Conditions.
means the Customer’s initial request to acquire the Services from Rain-or-Shine as set out in Clause 2 of these Terms and Conditions;
means the products required for the provision of the Services which Rain-or-Shine shall procure and supply;
means the Customer’s home, as detailed in the Order and the Agreement, at which the Services are to be provided;
means a quotation detailing proposed fees and services supplied to the Customer in accordance with Clause 2 of these Terms and Conditions;
means the fees which will be quoted to the Customer following the Order which may vary according to the actual work undertaken as set out in Clause 3 of these Terms and Conditions;
means the services provided by Rain-or-Shine as detailed in Clause 5 of these Terms and Conditions; and
means any occasion, scheduled or otherwise, on which Rain-or-Shine shall visit the Property to render the Services.
1.2Unless the context otherwise requires, each reference in these Terms and Conditions to:
2.a.1writing, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
2.a.2a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
2.a.3these Terms and Conditions is a reference to these Terms and Conditions and each of the Schedules as amended or supplemented at the relevant time;
2.a.4a Schedule is a schedule to these Terms and Conditions;
2.a.5a Clause or paragraph is a reference to a Clause of these Terms and Conditions (other than the Schedules) or a paragraph of the relevant Schedule; and
2.a.6a Party or the Parties refer to the parties to the Agreement.
1.3The headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Terms and Conditions.
1.4Words imparting the singular number shall include the plural and vice versa.
1.5References to any gender shall include the other gender.
1.6References to persons shall include corporations.
1.8When placing an Order the Customer shall set out, in detail, the Services required. Details required include the location and size of the Property, the size of the garden, the type of work required and the type of plants, trees or similar that are required and/or that are to be maintained. [Rain-or-Shine shall provide an order form to the Customer that shall provide prompts for all required information.] [All such details are set out in the Agreement.]
1.9Once the Order is complete and submitted Rain-or-Shine shall prepare and submit a Quotation to the Customer either by email or first class post which shall set out the required Fees, detailed in Clause 3.
1.10The Customer shall be free to make changes to the Order and Quotation prior to acceptance. The Customer may accept the Quotation by telephone, email or first class post.
Fees and Payment
1.11The Quoted Fees shall include the price payable for the Services and for the estimated Products required to render the Services [and is further detailed in Schedule 1]. If the Services are to be provided on an on-going basis, Rain-or-Shine will be unable to accurately project all Products required. In such cases, Products of any value exceeding Â£50 shall be procured only with the prior agreement of the Customer. Products below that value shall be procured as required by Rain-or-Shine in the course of providing the Services and shall be reflected in the relevant invoice to the Customer.
1.12In the event that the price of Products or services increase during the period between the Customer’s acceptance of the Quotation and the commencement of the Services, Rain-or-Shine shall inform the Customer of such increase and of any difference in the Fees.
1.13Rain-or-Shine shall invoice the Customer on an agreed basis for the Fees due for the preceding visits work that was carried out. Any waste or skips still on site will be removed once payment is made in full.
1.14All invoices must be paid within 7 days of receipt by the Customer.
Risk and Retention of Title
1.16Risk of damage to or loss of any and all Products shall pass to the Customer at the time when they are delivered to the Property by Rain-or-Shine or otherwise used for the provision of the Services.
1.17Notwithstanding the passing of risk in the Products under sub-Clause 4.1, or any other provision of these Terms and Conditions, legal and beneficial title in the Products shall not pass to the Customer until Rain-or-Shine has received in cash or cleared funds payment in full of all Fees due up to and including the date of delivery.
1.18Until payment has been made to Rain-or-Shine in accordance with these Terms and Conditions and title in the relevant Products has passed to the Customer, the Customer shall be in possession of the Products as bailee for Rain-or-Shine and the Customer shall, wherever possible (i.e. where they have not already been planted, installed, or otherwise fixed to the Property in such a manner as they cannot be easily removed without damage), store such Products separately from any other property or materials belonging to the Customer or a third party.
1.19The Services shall be rendered in accordance with the specification set out in the accepted Quotation and in the Agreement (as may be amended by mutual agreement from time to time).
1.20Rain-or-Shine may, from time to time, provide sketches, impressions, plans or similar documents. Any such material is intended for illustrative purposes only and is not intended to provide an exact specification of the Services nor to guarantee specific results.
1.21Rain-or-Shine shall use all reasonable endeavours to ensure that the Products used match those chosen by the Customer. Notwithstanding this Rain-or-Shine cannot guarantee the quality, properties or consistency of the Products. In the event that plants, trees, shrubs or other materials chosen by the Customer are unavailable Rain-or-Shine shall be free to use their discretion to select suitable alternatives. When selecting alternatives Rain-or-Shine shall use all reasonable endeavours to ensure as close a match as possible to the Customer’s original requirements.
1.22Rain-or-Shine shall ensure that the Services are rendered with reasonable care and skill and to a reasonable standard that is commensurate with best trade practice.
1.23Rain-or-Shine shall ensure that no parts of the Property suffer damage as a result of their rendering of the Services. Any damage that may occur shall be made good at no additional expense to the Customer as soon as is reasonably possible. [Rain-or-Shine may instruct the Customer to take reasonable steps to protect their Property including while the Services are being rendered. Rain-or-Shine shall not be liable for any damage which occurs as a result of the Customer’s failure to follow such instructions.]
1.24Rain-or-Shine shall ensure that they comply with any and all relevant codes of practice.
1.25Rain-or-Shine shall properly dispose of all waste that results from their rendering of the Services.
1.26At the end of each Visit, Rain-or-Shine shall, insofar as is reasonably possible, leave the Property in a habitable state and shall ensure that disruption to the Customer’s use and enjoyment of their Property while work is being carried out is kept to a minimum. All tools and materials shall, wherever possible, be tidily confined to areas where work is being carried out or shall be removed from the Property at the end of each working day.
1.27If any consents, licenses or other permissions are needed from any third parties such as landlords, planning authorities, local authorities or similar, it shall be the Customer’s responsibility to obtain the same in advance of the commencement of the Services.
1.28The Customer shall ensure that Rain-or-Shine can access the Property at the Agreed Times to render the Services.
1.29The Customer shall have the option of giving Rain-or-Shine a set of keys to the Property or being present at the Agreed Times to give Rain-or-Shine access. Rain-or-Shine warrants that all keys shall be kept safely and securely.
1.30The Customer shall ensure that Rain-or-Shine has access to electrical outlets and a supply of hot and cold running water.
1.31The Customer must give Rain-or-Shine at least 48 hours notice if Rain-or-Shine will be unable to provide the Services on a particular day or at a particular time. Rain-or-Shine will not invoice for cancelled Visits provided such notice is given. If less than 48 hours notice is given Rain-or-Shine shall have the right to invoice the Customer at their normal rate.
Liability, Indemnity and Insurance
1.32Rain-or-Shine shall ensure that they have in place at all times suitable and valid insurance that shall include public liability insurance.
1.34Rain-or-Shine is not liable for any loss or damage suffered by the Customer that results from the Customer’s failure to follow any instructions given by Rain-or-Shine.
1.35Nothing in these Terms and Conditions shall limit or exclude Rain-or-Shine’s liability for death or personal injury.
1.36Subject to sub-Clause 7.2, Rain-or-Shine shall indemnify the Customer against any costs, liability, damages, loss, claims or proceedings arising out of Rain-or-Shine’s rendering of the Services or any breach of these Terms and Conditions.
1.37The Customer shall indemnify Rain-or-Shine against any costs, liability, damages, loss, claims or proceedings arising out of the Customer’s failure to meet any of its obligations or any other breach of these Terms and Conditions.
Rain-or-Shine will not share the Customer’s personal data with any third parties for any reasons without the prior consent of the Customer. Such data will only be collected, processed and held in accordance with Rain-or-Shine’s rights and obligations arising under the provisions and principles of the Data Protection Act 1998.
1.38No Party to the Agreement will be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, internet service provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
1.39[In the event that a Party to the Agreement cannot perform their obligations thereunder as a result of force majeure for a continuous period of 30 days, the other Party may at its discretion terminate the Agreement by written notice at the end of that period. In the event of such termination, the Parties shall agree upon a fair and reasonable payment for all Services completed up to the date of termination. Such payment shall take into account any prior contractual commitments entered into in reliance on the performance of the Agreement.]
Cancellation and Termination
1.40The Services shall commence on the Agreed Date and shall continue for an indefinite term from the Agreed Date [subject to a minimum term of 2 visits] until cancelled by either the Customer or Rain-or-Shine in accordance with this Clause 10.
1.41Either Party may cancel the Services and terminate the Agreement by giving to the other not less than 2 weeks written notice [to expire on or at any time after 2 visits].
1.42Either Party may immediately terminate the Agreement by giving written notice to the other Party if:
42.a.1any sum owing to that Party by the other Party under any of the provisions of the Agreement is not paid within 7 Business Days of the due date for payment;
42.a.2the other Party commits any other breach of any of the provisions of the Agreement and, if the breach is capable of remedy, fails to remedy it within 7 Business Days after being given written notice giving full particulars of the breach and requiring it to be remedied;
42.a.3an encumbrancer takes possession, or where the other Party is a company, a receiver is appointed, of any of the property or assets of that other Party;
42.a.4the other Party makes any voluntary arrangement with its creditors or, being a company, becomes subject to an administration order (within the meaning of the Insolvency Act 1986);
42.a.5the other Party, being an individual or firm, has a bankruptcy order made against it or, being a company, goes into liquidation (except for the purposes of bona fide amalgamation or re-construction and in such a manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on that other Party under the Agreement);
42.a.6anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the other Party;
42.a.7that other Party ceases, or threatens to cease, to carry on business; or
42.a.8control of that other Party is acquired by any person or connected persons not having control of that other Party on the date of the Agreement. For the purposes of this Clause 10, control and âconnected persons shall have the meanings ascribed thereto by Sections 1124 and 1122 respectively of the Corporation Tax Act 2010.
1.43For the purposes of sub-Clause 10.3.2, a breach shall be considered capable of remedy if the Party in breach can comply with the provision in question in all respects.
1.44The rights to terminate the Agreement shall not prejudice any other right or remedy of either Party in respect of the breach concerned (if any) or any other breach.
Effects of Termination
Upon the termination of the Agreement for any reason:
1.45any sum owing by either Party to the other under any of the provisions of the Agreement shall become immediately due and payable;
1.46all Clauses which, either expressly or by their nature, relate to the period after the expiry or termination of the Agreement shall remain In full force and effect;
1.47termination shall not affect or prejudice any right to damages or other remedy which the terminating Party may have in respect of the event giving rise to the termination or any other right to damages or other remedy which any Party may have in respect of any breach of the Agreement which exist at or before the date of termination; and
1.48subject as provided in this Clause 11 and except in respect of any accrued rights neither Party shall be under any further obligation to the other.
No failure or delay by either Party in exercising any of its rights under the Agreement shall be deemed to be a waiver of that right, and no waiver by either Party of a breach of any provision of the Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision.
Each Party shall execute and do all such further deeds, documents and things as may be necessary to carry the provisions of the Agreement into full force and effect.
Subject to any provisions to the contrary each Party shall pay its own costs of and incidental to the negotiation, preparation, execution and carrying into effect of the Agreement.
Neither Party shall be entitled to set-off any sums in any manner from payments due or sums received in respect of any claim under the Agreement or any other agreement at any time.
Assignment and Sub-Contracting
1.49[Subject to sub-Clause 16.2] The Agreement shall be personal to the Parties. Neither Party may assign, mortgage, charge (otherwise than by floating charge) or sub-licence or otherwise delegate any of its rights thereunder, or sub-contractor otherwise delegate any of its obligations thereunder without the written consent of the other Party, such consent not to be unreasonably withheld.
1.50[Rain-or-Shine shall be entitled to perform any of the obligations undertaken by them through any other member of their group or through suitably qualified and skilled sub-contractors. Any act or omission of such other member or sub-contractor shall, for the purposes of the Agreement, be deemed to be an act or omission of Rain-or-Shine.]
1.51[The Parties agree that all times and dates referred to in the Agreement shall be of the essence of the Agreement.]
1.52[The Parties agree that the times and dates referred to in the Agreement are for guidance only and are not of the essence of the Agreement and may be varied by mutual agreement between the Parties.]
Relationship of the Parties
Nothing in the Agreement shall constitute or be deemed to constitute a partnership, joint venture, agency or other fiduciary relationship between the Parties other than the contractual relationship expressly provided for in the Agreement.
Third Party Rights
No part of the Agreement is intended to confer rights on any third parties and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to the Agreement.
1.53All notices under the Agreement shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.
1.54Notices shall be deemed to have been duly given:
54.a.1when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
54.a.2when sent, if transmitted by facsimile or e-mail and a successful transmission report or return receipt is generated; or
54.a.3on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
54.a.4on the tenth business day following mailing, if mailed by airmail, postage prepaid.
In each case notices shall be addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.
1.55The Agreement contains the entire agreement between the Parties with respect to its subject matter and may not be modified except by an instrument in writing signed by the duly authorised representatives of the Parties.
1.56Each Party shall acknowledge that, in entering into the Agreement, it does not rely on any representation, warranty or other provision except as expressly provided in the Agreement, and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
The Agreement may be entered into in any number of counterparts and by the Parties to it on separate counterparts each of which when so executed and delivered shall be an original, but all the counterparts together shall constitute one and the same instrument.
In the event that one or more of the provisions of the Agreement and/or of these Terms and Conditions is found to be unlawful, invalid or otherwise unenforceable, that / those provision(s) shall be deemed severed from the remainder of the Agreement and/or these Terms and Conditions. The remainder of the Agreement and/or these Terms and Conditions shall be valid and enforceable.
1.57The Parties shall attempt to resolve any dispute arising out of or relating to the Agreement through negotiations between their appointed representatives who have the authority to settle such disputes.
1.58[If negotiations under sub-Clause 24.1 do not resolve the matter within 7 days of receipt of a written invitation to negotiate, the parties will attempt to resolve the dispute in good faith through an agreed Alternative Dispute Resolution procedure.]
1.59[If the ADR procedure under sub-Clause 24.2 does not resolve the matter within 7 days of the initiation of that procedure, or if either Party will not participate in the ADR procedure, the dispute may be referred to arbitration by either Party.
1.60The seat of the arbitration under sub-Clause 24.3 shall be England and Wales. The arbitration shall be governed by the Arbitration Act 1996 and Rules for Arbitration as agreed between the Parties. In the event that the Parties are unable to agree on the arbitrator(s) or the Rules for Arbitration, either Party may, upon giving written notice to the other Party, apply to the President or Deputy President for the time being of the Chartered Institute of Arbitrators for the appointment of an arbitrator or arbitrators and for any decision on rules that may be required.]
1.61Nothing in this Clause 24 shall prohibit either Party or its affiliates from applying to a court for interim injunctive relief.
1.62The decision and outcome of the final method of dispute resolution under this Clause 24 shall [not] be final and binding on both Parties.
Law and Jurisdiction
1.63The Agreement and these Terms and Conditions (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
1.64Subject to the provisions of Clause 24, any dispute, controversy, proceedings or claim between the Parties relating to the Agreement or these Terms and Conditions (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.