Terms & Conditions

The Standard Conditions

1.  INTERPRETATION  

The following definitions and rules of interpretation apply in these Conditions.

1.1 Definitions

Business Day:  a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Excluded Items: such items, parts, materials excluded by the Company under the terms of this Contract, which include but are not limited to a Water Facility, lift access, and as may be specifically excluded in a Quotation.
Fee: any such fee agreed between the Parties as set out in the Main Order and as may be varied between the Parties in accordance with the Standard Conditions.
Installations:  the provision of such plants and/or plant displays, including vases, containers, any wall-hangings, “living frames”, “moss wall”, “moss art”, and/or other bespoke displays, all as further particularised in a Quotation.
Installations Specification:  any specification for the Installations, including any bespoke Maintenance (as may be required in addition to Schedule 1 at the sole discretion of the Company), and any relevant plans or drawings, that is agreed between the Parties in support of the Quotation, and as may be varied in accordance with the Standard Conditions.
Maintenance: where relevant shall be those services as further particularised in Schedule 1.
Natural Causes: the natural death of a plant, including plant annuals, as solely determined by the Company in its reasonable professional opinion.
Outright Purchase Installation: the sale and purchase of an Installation in accordance with a relevant Quotation.
Water Facility: shall be such fresh water supply, water access point, and such sufficient pressure to enable the Company to undertake Maintenance.

1.2 Interpretation

(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality). (b)  A reference to a party includes its successors and permitted assigns. (c)  A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision. (d)  Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

2.  BASIS OF CONTRACT  

2.1 The Main Order constitutes an offer by the Client to receive an agreed Installation and/or receive Maintenance services in accordance with these Standard Conditions.
2.2  The Main Order shall only be deemed to be accepted when we issue the duly authorised counter-signed Main Order, which shall constitute written acceptance at which point and on which date the Contract shall come into existence (Commencement Date).
2.3  Any samples, drawings, descriptive matter or advertising issued by us and any descriptions of any agreed Installations or illustrations or descriptions of the Maintenance services contained in the Company’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the good and/or services described in them. They shall not form part of the Contract nor have any contractual force.
2.4 These Standard Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.5 Any quotation given by us shall not constitute an offer and is only valid for a period of 20 Business Days from its date of issue.
2.6 These Standard Conditions shall apply to the supply of both goods and services that we provide except where application to one or the other is specified.
2.7 For the avoidance of doubt if there is an inconsistency between any of the provisions in the main body of these Standard Conditions and the Schedules, the provisions in the main body of these Standard Conditions shall prevail.

3.  INSTALLATIONS  

3.1 The Installations are described in our Quotation as may be changed by any applicable Installation Specification and will include such Maintenance as relevant to the Installation and as further particularised in Schedule 1.
3.2 We reserve the right to amend the Installation Specification if required by any applicable statutory or regulatory requirement, and we shall notify the Client in any such event. If such amendments will materially change the nature or quality of the installation, the Client may then cancel the Main Order.

4.  DELIVERY OF THE INSTALLATION  

4.1  We shall ensure that each delivery of an agreed Installation is accompanied by a delivery note which may show the date of the Main Order, reference to the Quotation, special instructions (if any) and, if the Main Order is being delivered by instalments, the outstanding balance of an agreed Installation remaining to be delivered (unless otherwise confirmed in writing by the Company).
4.2  We shall deliver and commence an agreed Installation at the location and on the date as set out in the Main Order unless such other date is agreed in writing between the Parties no later than 14 days in advance of the date in the Main Order.
4.3  If the Client fails to accept delivery of an agreed Installation, then except where such failure or delay is caused by a Force Majeure Event or by our failure to comply with our obligations under the Contract: (a)  delivery of an agreed Installation shall be deemed to have been completed on the date as set out in the Main Order; and (b)  the Client shall be liable for the Fee; and (c) we shall store any part of an agreed Installation, and charge the Client for all related costs and expenses (including insurance), unless otherwise agreed by us in writing.
4.4 If 7 Business Days after the day on which we notified the Client that an agreed Installation was ready for delivery the Client has not accepted delivery of that Installation, we may (i) resell or otherwise dispose of part or all of that Installation that comprises perishable elements; and (ii) after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of any perishable goods or charge the Customer for any shortfall below the price of perishable goods; and (iii) terminate the contract and any sums paid by the Client in advance shall be forfeit.
4.5 We may deliver an agreed Installation by instalments. Any delay in delivery or defect in an instalment shall not entitle the Client to cancel any other instalment.

5.  QUALITY OF GOODS  

5.1  We warrant that on delivery an agreed Installation shall: (a)  conform with any applicable Installation Specification; (b)  be free from material defects in design, material and workmanship; and (c)  relevant parts of an agreed Installation shall be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
5.2 Subject to clause 5.3, we shall, at our discretion, repair or replace any part of the Installation that is defective, if:
(a)  the Client gives notice in writing within a reasonable time of discovery that some or all of the Installation does not comply with the warranty set out in clause 5.1; and (b) we are given a reasonable opportunity of examining the Installation.
5.3  We shall not be liable for the Installations’ failure to comply with the warranty in clause 5.1 if: (a)  the defect arises because the Client failed to follow our instructions as to the storage, installation, commissioning, use or maintenance of the Installation or (if there are none) good trade practice; (b)  the defect arises as a result of us following any drawing, design or specification supplied by the Client; (c)  the Client alters or repairs any part of the affected Installation without the written consent of us; (d)  the defect arises as a result of fair wear and tear, damage, vandalism, negligence, or abnormal environmental conditions; (e) the Installation differs from any Installations Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
5.4 Except as provided in this clause 5, we shall have no liability to the Client in respect of the Installations’ failure to comply with the warranty set out in clause 5.1.
5.5 The terms of these Standard Conditions shall apply to any repaired or replacement Installation (or part) supplied by us.

6.  TITLE AND RISK  

6.1 The risk in any Installation shall pass to the Client on completion of delivery.
6.2  Title to an Outright purchase Installation shall not pass to the Client until we receive payment in full (in cash or cleared funds) for that Outright Purchase Installation and any other goods that we have supplied to the Client, in which case title to a relevant Outright Purchase Installation shall pass at the time of  delivery.
6.3  Until title to an Outright Purchase has passed to the Client, and in relation to any Installation generally, the Client shall: (a)  not mix plants with other suppliers, and store the goods supplied by us separately from all other goods held by the Client so that they remain readily identifiable as the Company’s property; (b)  not remove, deface or obscure any identifying mark on or relating to an Installation; (c)  maintain an Installation in satisfactory condition and keep it insured against all risks for its full price on our behalf from the date of delivery; (d)  notify us immediately if it becomes subject to any of the events listed in Clause 14.2(b)  and (e)  give us such information relating to an Installation as we may reasonably require from time to time.
6.4  If before title to an Outright Purchase passes to the Client, or otherwise in the case of an Installation the Client becomes subject to any of the events listed in Clause 14.2(b) , then, without limiting any other right or remedy we may have, we may at any time: (a)  require the Client to deliver up the displays; and (b) enter the relevant premises of the Client in order to recover the displays.
6.5 For Rental and Maintenance contracts the title of all good remains with the company (Plant Designs Ltd.).

7.  INSTALLATION & MAINTENANCE SERVICES  

7.1 We shall supply any agreed Installation to the Client in accordance with the Quotation and as may be enhanced by any Installation Specification in all material respects.
7.2  We shall supply the Maintenance services to the Client in accordance with Schedule 1 and as may be enhanced by any Installation Specification in all material respects.
7.3  We shall use all reasonable endeavours to meet any performance dates for any agreed Installation and/or Maintenance, but any such dates shall be estimates only and time shall not be of the essence for the performance of any agreed Installation and/or Maintenance.
7.4  We reserve the right to amend any Maintenance if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of Maintenance, and we shall notify the Client in any such event.
7.5 We warrant to the Client that any agreed Installation and/or Maintenance will be provided using reasonable care and skill.
7.6 In providing our services, we shall: (a) co-operate with the Client in all matters relating to our services; (b) perform our services with the best care, skill and diligence in accordance with best practice in the Company’s industry, profession or trade; (c) use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that our obligations are fulfilled in accordance with the Contract; (d) ensure that Installation will conform with all descriptions, standards and specifications set out in the Quotation and/or any Installation Specification; (e) ensure that Maintenance will conform with all descriptions, standards and specifications set out in Schedule 1; (f) provide all equipment and tools and such other items (that are not Excluded Items) as are required to provide the services; (g) obtain and at all times maintain all licences and consents which may be required for the provision of the services; (h) comply with all applicable laws, regulations, regulatory policies, guidelines or industry codes which may apply from time to time to the provision of the Maintenance; and (i) observe all health and safety rules and regulations and any other security requirements that apply at any of the Client’s premises, that are provided to us no later than 1 week in advance of us attending the Client’s premises.

8.  CLIENT’S OBLIGATIONS  

8.1  The Client shall: (a)  ensure that the terms of the Main Order, the Quotation and any information it provides to us in contemplation of us undertaking our obligations under the Contract are complete and accurate; (b)  co-operate with us in all matters relating to the provision of any agreed Installation and Maintenance; (c)  provide us, our employees, agents, consultants and subcontractors, with access to the Client’s premises, office accommodation and other facilities (including lift access) as reasonably required by us to deliver any agreed Installation and provide the Maintenance; (d)  provide us with such information and materials as we may reasonably require in order to deliver any agreed Installation and carry out the Maintenance, and ensure that such information is complete and accurate in all material respects; (e)  as appropriate and directed by us, prepare the Client’s premises for the delivery of any agreed Installation and provision of Maintenance; (f)  obtain and maintain all necessary licences, permissions and consents which may be required for us to undertake our obligations under the Contract before the Commencement Date; (g)  comply with all applicable laws, including health and safety laws; (h)  keep any agreed Installation (and any other property belonging to us that is kept at the Client’s premises) in safe custody at the Client’s own risk; (i) keep any agreed Installation safe from any damage, vandalism, or negligence; (j) keep any perishable part of an agreed internal Installation safe from any adverse environment, including but not limited to extreme temperature changes; (k) maintain an internal minimum temperature of 10 degrees centigrade at all times within the Client premises; (l)  comply with any additional obligations as set out in the Installation Specification; (m) ensure the Installations are not maintained by any party other than the Company, its employees, agents, and sub-contractors; (n) provide access to a Water Facility on the premises, and in the event an agreed external Installation is provided and/or is to receive Maintenance, clear and uninterrupted access to a Water Facility no more than a maximum distance (as solely and reasonably determined by us) from the furthest part of the external Installation; and (o) not change the locations of any part of any agreed Installation, including but not limited to any plant displays without the written consent of the Company.
8.2  If our performance of any of our obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default): (a)  without limiting or affecting any other right or remedy available to it, we shall have the right to suspend performance of our obligations until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations in each case to the extent the Client Default prevents or delays our performance of any of our obligations; (b)  we shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from our failure or delay to perform any of our obligations as set out in this clause 8.2; and (c)  the Client shall reimburse the Company on written demand for any costs or losses sustained or incurred by us arising directly or indirectly from the Client Default.

9.  FEES AND PAYMENT  

9.1 The Monthly Fee for any agreed Installation and/or Maintenance: (a) shall be as set out in the Main Order; and (b) shall be exclusive of any costs and charges for non-delivery, storage, Collection.
9.2 Any additional Fees shall be calculated on a time and materials basis: (a) the Fees shall be calculated in accordance with our daily fee rates, as may be set out in the Quotation and/or Schedule 1; (b) our daily fee rates for each individual person are calculated on the basis of an eight-hour day from 7.30 am to 4.00 pm worked on Business Days; (c) we shall be entitled to charge an overtime rate (as will be set out in advance in writing to the Client from time to time) on a pro rata basis for each part day or for any time worked by individuals whom we agree to engage at the Client’s written request should the Client require Maintenance to be undertaken outside the hours referred to in clause 9.2(b); (d) we shall be entitled to charge the Client for any expenses and cost of materials reasonably incurred by us in connection with the performance of any agreed Maintenance as may be contemplated under clause 9.2(c); (e) we shall be entitled to charge the Client for any additional goods and/or materials and/or equipment and/or labour that may be required as resulting from remedial work arising as a result of a breach of the Client’s obligations as set out in clause 8; (f) we shall be entitled to charge the Client for our services in the event we are required to re-position any part of an agreed Installation due its relocation by the Client after initial Installation by us should the Client’s relocation be of a less suitable environmental position for a particular plant display; and (g) we shall be entitled to charge the Client for any additional delivery requirements in the event that instalment deliveries are subsequently agreed and are additional to the Quotation.
9.3  We reserve the right to: (a) increase our charges on an annual basis with effect from each anniversary of the Commencement Date by up to 5% or in line with the percentage increase in the Retail Prices Index in the preceding 12-month period, whichever is the greater, and the first of any such increase shall not take effect prior to the first anniversary of the Commencement Date, and not prior to one month’s written notice; (b) increase the price of any part of an agreed Installation, by giving notice to the Client at any time before delivery, to reflect any increase in the cost of any part of an agreed installation to us that is due to: (i) any factor beyond the control of the Company (including foreign exchange fluctuations, increases in taxes and duties, changes to laws and/or regulations, and increases in labour, materials, goods, and other manufacturing and/or supply costs); (ii) any request by the Client to change the delivery date(s), quantities or types of goods forming any part of or the whole of any agreed Installation ordered, or the Installation Specification; or (iii) any delay caused by any instructions of the Client in respect of any agreed Installation or failure of the Client to give us adequate or accurate information or instructions in respect of any agreed Installation and/or Maintenance; and (c) unilaterally change the Installation Date in the event of any part of an unpaid invoice.
9.4 In respect of an Outright Purchase we shall invoice the Client prior to the Installation Date this invoiced must be paid in full prior to the installation. In respect of our other services, we shall invoice the Client as follows: (a) a deposit may be required in advance of particular services which shall be due for payment  prior to ordering the materials for  the Installation Date; (b) in addition, for Installation of Rental & Maintenance services the sum equal to the value of the first quarter will act as the deposit which will be invoiced in addition with the first three months in advance. For clarity Deposit and first three month invoice must be paid in advance of installation; there after invoices will be submitted by us quarterly in advance, payment in full within 30 days of date of invoice; (c) for Maintenance only invoices will be submitted by us quarterly in advance; , services will not commence until first invoice is paid.
9.5  The Client shall pay each invoice submitted by us: (a)prior to the installation or (b) within 30 days of the date of the invoice;  in full and in cleared funds to a bank account nominated in writing by us, and time for payment shall be of the essence of the Contract.
9.6 All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Company to the Client, the Client shall, on receipt of a valid VAT invoice from the Company, pay to us such additional amounts in respect of VAT as are chargeable on the supply of services and/or goods at the same time as payment is due for the supply of the services and/or goods.
9.7  If the Client fails to make a payment due to us under the Contract by the due date, then, without limiting our remedies under clause 14 (Termination), the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 9.7 will accrue each day at 5% a year above the Bank of England’s base rate from time to time, but at 5% a year for any period when that base rate is below 0%.
9.8 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

10. TERM OF CONTRACT  

10.1 The duration of the Contract shall be as follows: (a) for Installation Rental & Maintenance no less than twenty-four (24) calendar months following the Commencement Date (“the Initial Term”). Unless otherwise terminated in accordance with clause 14.1 the Initial Term shall automatically extend for 12 calendar months (“Extended Term”) at the end of the Initial Term and at the end of any Extended Term (collectively “the Term”); or (b) for Maintenance Only no less than twelve (12) calendar months following the Commencement Date (“the Initial Term”). Unless otherwise terminated in accordance with clause 14.1 the Initial Term shall automatically extend for twelve (12) calendar months (“Extended Term”) at the end of the Initial Term and at the end of any Extended Term (collectively “the Term”).

11.  AVAILABILITY  

11.1 All our products are subject to availability. If any part of an Installation is unavailable at the time of the Installation Date, we will endeavour to replace that unavailable part with an equivalent. In the event the Parties are unable to agree an equivalent replacement, we shall apply a cost reduction accordingly.
11.2 The Client can make written request(s) for additional plant displays within the 6-month period immediately following the Commencement Date without incurring an extension to the Initial Term.
11.3 Any additional displays added after the initial 6-month window will result in the whole contract being extended by a further 24 months.

12. EARLY TERMINATION  

12.1 The Company reserves the right to enter the Client’s premises and take possession of its Company property (“Collection”) in the event of a termination event as set out in clauses 14.2-14.4 (inclusive) or as it is otherwise entitled to exercise its rights in accordance with the Contract.
12.2 The Client shall pay for the costs of Collection.

13.  LIMITATION OF LIABILITY: THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE 

13.1 The Company has obtained insurance cover in respect of its own legal liability for individual claims not exceeding £10,000,000 per claim. The limits and exclusions in this clause reflect the insurance cover the Company has been able to arrange and the Client is responsible for making its own arrangements for the insurance of any excess loss. A copy of our policy will be made available to the Client upon its written request.
13.2 The restrictions on liability in this clause 13 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
13.4  Nothing in the Contract limits any liability which cannot legally be limited, including liability for: (a)  death or personal injury caused by negligence; (b)  fraud or fraudulent misrepresentation; (c)  breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); and (d)  defective products under the Consumer Protection Act 1987.
13.5 Subject to clause 13.4, the Company’s total liability to the Client shall not exceed the total charges paid by the Client during the 12 months preceding the date upon which the breach occurred.
13.6  This clause 13.6 sets out specific heads of excluded loss: (a)  Subject to clause 13.4, the types of loss listed in clause 13.9(c) are wholly excluded by the Parties, but the types of loss and specific losses listed in clause 13.9(d) are not excluded. (b)  The following types of loss are wholly excluded: (i)  loss of profits; (ii)  loss of sales or business; (iii)  loss of agreements or contracts; (iv)  loss of anticipated savings; (v)  loss of use or corruption of software, data or information; (vi)  loss of or damage to goodwill; and (vii)  indirect or consequential loss. (c)  The following types of loss and specific loss are not excluded: (i)  sums paid by the Client to the Company pursuant to the Contract, in respect of any goods or services not provided in accordance with the Contract; (ii)  wasted expenditure; (iii)  additional costs of procuring and implementing replacements for, or alternatives to, goods or services arising as a result of a breach of the Client’s obligations under clause 8; and (iv)  losses incurred by the Client arising out of or in connection with any third party claim against the Client which has been caused by the act or omission of the Company.
13.7  The Company has given commitments as to compliance of the goods and services with relevant specifications in clauses 5 and 7. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.

14.  TERMINATION 

14.1  Without affecting any other right or remedy available to it, either Party may terminate the Contract as follows: (a) for Installation Rental & Maintenance by giving the other party not less than three (3) months’ written notice, such notice to expire on the final day of the Term; or (b) for Maintenance Only by giving the other party not less than one (1) months’ written notice, such notice to expire on the final day of the Term.
14.2 The Client shall become liable for the costs of Collection. The client will be notified of this cost once written cancellation has been received.
14.3 Without affecting any other right or remedy available to it, either Party may terminate the Contract with immediate effect by giving written notice to the other Party if: (a)  the other Party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within thirty (30) days after receipt of notice in writing to do so; (b)  the other Party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business; (c)  the other Party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or (d)  the other Party’s financial position deteriorates to such an extent that in the terminating Party’s opinion the other Party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
14.4  Without affecting any other right or remedy available to it, we may terminate the Contract with immediate effect by giving written notice to the Client if: (a)  the Client fails to pay any amount due under the Contract on the due date for payment; or (b)  there is a change of Control of the Client.
14.5  Without affecting any other right or remedy available to it, we may suspend the supply of Maintenance or all further deliveries of any goods under the Contract or any other contract between the Client and the Company if the Client fails to pay any amount due under the Contract on the due date for payment, the Client becomes subject to any of the events listed in clause 14.2(b)), or we reasonably believe that the Client is about to become subject to any of them.
14.6 The client has the right to terminate the contract if there are two written formal complaints submitted to the company within a 6-month period.

15.  CONSEQUENCES OF TERMINATION  

15.1  On termination of the Contract: (a)  the Client shall immediately pay to the Company all of our outstanding unpaid invoices and interest and, in respect of any Maintenance and goods supplied but for which no invoice has been submitted, we shall submit an invoice, which shall be payable by the Client immediately on receipt; (b)  at the Company’s sole option (without acting unreasonably) the Client shall either allow for Collection or return any Company materials and any part or whole of any agreed Installation which has not been fully paid for. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.
15.2  Termination or expiry of the Contract shall not affect any rights, remedies, obligations and liabilities of the Parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
15.3 Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.

16.  FORCE MAJEURE  

Neither Party shall be in breach of the Contract nor liable for delay in performing or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control (a Force Majeure Event). In such circumstances the affected Party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for three (3) consecutive months, the Party not affected may terminate this agreement by giving thirty (30) days’ written notice to the affected party.

17.  GENERAL  

17.1 Assignment and other dealings 

(a)  We may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
(b)  The Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Company, not to be unreasonably withheld or delayed.

17.2 Notices 

(a)  Any notice given to a Party under or in connection with the Contract shall be in writing and shall be: (i)  delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or (ii) sent by email to the pre-approved email address specified in the Main Order.
(b)  Any notice shall be deemed to have been received: (i)  if delivered by hand, on signature of a delivery receipt; and (ii)  if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and (iii)  if sent by email, at the time of transmission, or, if this time falls outside business hours, when business hours resume, provided that a corresponding and bona fide email delivery receipt is obtained. In this clause 17.2(b)(iii), business hours mean 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday.
(c)  This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

17.3 Severance

If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 17.3 shall not affect the validity and enforceability of the rest of the Contract.

17.4 Waiver

A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.

17.5 No partnership or agency

Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the Parties, constitute either Party the agent of the other, or authorise either Party to make or enter into any commitments for or on behalf of the other Party.

 

17.6 Entire agreement

(a)  The Contract constitutes the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b)  Each Party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misrepresentation based on any statement in the Contract.
(c)  Nothing in this clause shall limit or exclude any liability for fraud.

17.7 Third party rights

Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

17.8 Variation

Except as set out in these Standard Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the respective directors of the Parties.

17.9 Governing law

The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

17.10 Jurisdiction

Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.

Schedule 1
Maintenance & Service Levels

1. Maintenance

(a) Such regular on-site plant inspections as we may solely and reasonably consider having regard to the nature of the plant displays and/or any agreed Installation, to include feeding, watering, pruning and treatment against pests and diseases in accordance with current legislation.
(b) Free replacement plant service, for any plant that is not up to our high standard for reasons of Natural Causes, but subject to the Client complying with clause 8.
(c) Seasonal bedding plants will be changed in accordance with the Quotation.
(d) An additional charge will be made for plant replacements and associated labour costs, unless a plant display has been adversely affected by reason of Natural Causes, but subject to the Client complying with clause 8.
(e) Advice and horticultural support if in our sole opinion the Installation Specifications need to be changed in order to ensure that the quality of the plant displays is maintained, substitute planting solutions will be advised and provided to an equivalent value as set out in the Quotation at such extra charge to the Client unless otherwise agreed in writing.
(f) Within two working days of receiving a query regarding plant displays, we will provide such level of support as solely determined by us from a fully qualified Horticultural Technician.
(g) Should the client experience two major incidents they have the right to terminate the contract if two written complaints submitted to the company within a 6-month period.
(h) Should you wish to make changes to the Maintenance services described in this Schedule 1 please discuss your requirements with your client manager or contact us on 020 8575 8949.
(i) Maintenance in connection with any relevant exterior Installation (and as may be further particularised in the Quotation):

– includes a maximum of 39 Location visits undertaken annually on: (1) a weekly basis between the period 1st May – 30th September (inclusive); (2) a fortnightly basis between the period 1st October – 30th April (inclusive).
– excludes plant replacements and paragraph (d) above shall apply accordingly.
– excludes responsibility for any adverse weather conditions and/or natural disasters, and paragraph (d) above shall apply accordingly.

(j) Maintenance excludes any abortive visits and/or wasted costs incurred due to the Client failing to notify the Company of any access restrictions no later than 24 hours prior to a scheduled visit.

2. Fees and Charges

(a) Standard rate is £25.00 per hour. We shall be entitled to charge an overtime rate of such percentage of the daily fee rate on a pro rata basis for each part day or for any time worked by individuals whom we agree to engage at the Client’s written request should the Client require Maintenance to be undertaken outside the hours referred to in clause 9.2(b) (“Business Hours”).
(b) Overtime rates for working outside of Business Hours as at the date of this Contract are: (i) £37.50 per hour on a Saturday; and (ii) £50.00 per hour on a Sunday or public holiday.

3. Installations

(a) The Client shall be liable and responsible for all and any surveys undertaken and information provided to the Company to accommodate a successful Installation, which shall include but not be limited to structural surveys, location of services and utilities, and suitability of any Installation location(s).
(b) The Client shall be responsible for any and all wall repairs and fixing points.
(c) Wall and/or floor protection is excluded unless otherwise agreed in writing.