terms and conditions
I feel that it is important from the outset to make it clear the responsibilities placed upon me, as the designer and you, as the client. With this in mind, I’ve set out in a formal way, the parameters, liabilities and responsibilities for the different services and providers that may be involved in the creation of a wide variety of gardens, including the necessary legalities. Please take time to read these and ask if you have any queries.
Below are the terms and conditions upon which I provide garden design services. The exact design services I will provide to you will depend on what you and I agree after the Initial Consultation(s) but may include garden design commissions, including concept design work, sketches, consultancy, creative advice.
E&E, ‘I’, mean Ady Davis trading as Ernest & Edward Garden Design.
‘the Client’, ‘You’, means the person or persons who request E&E to carry out work being liable to pay E&E fees jointly and severally.
‘Project’, ‘Works’, mean all hard and soft landscaping including preparation, construction and planting work.
Fees and Expenses Schedule / Design Brief mean the written documents sent to you which incorporate these Terms & Conditions.
1.0 Garden Survey
1.1 An accurate, scale survey of your garden will be required to produce the design. Small, straight-forward gardens can be surveyed by me and one other, and where possible an estimation of cost will be included within in the Fees and Expenses Schedule
1.2 With some larger or more complex projects, it may be necessary for you to engage a specialist land surveyor to carry out the survey, or a building surveyor to advise upon some aspects of the site and the proposed design. If you do not know a surveyor who you wish to appoint then I can recommend a surveyor to whom I refer clients. The contract between you and the surveyor, including fees and payment terms will be an entirely separate contract between you and the surveyor. It is usually beneficial if I meet the surveyor on site on the day of the survey, to discuss the site and any particular requirements you have.
1.3 If you already have plan of the site, this obviously means that this step is not required but please note that I will be working from the plan provided and therefore any errors in the ground plan are not my responsibility. I will still require a subsequent visit to site beyond the initial consultation however.
1.4 Soil testing including acidity test will form a standard part of the site survey.
2.0 Construction Budget
Some Clients are happy to instruct a design which incorporates all the features they would like without the constraints of a fixed construction budget. Other Clients may have a specific budget, in which case every effort is made to design a garden that reflects this figure. It is not always possible to accurately estimate the final cost of a design until it is presented to a Contractor for pricing, but once costed, if savings need to be made there are usually ways of doing this, for example with a change of materials, by removing an element of the design, or phasing part of the project. I can advise you on what would be a realistic budget for your garden space if you are unsure.
3.1 I can assist you, where requested, on the choice of Contractor to construct the garden. Where available, I can recommend Contractors with whom I have had direct experience but this may not always be possible and whilst my recommendations are made in good faith, I shall have no liability for any defects in the Contractor’s work or goods supplied, or be in anyway liable in the event of a dispute between Client and Contractor. You will have to negotiate and agree the terms of a separate contract between you and the Contractor you wish to appoint to construct the garden.
3.2 After you have appointed your Contractor, any changes to the design requested by you during the construction stage may well affect your contract with the Contractor and all resulting cost implications and extensions of time (if any) will need to be agreed between you and the Contractor before you request a change in the design by me.
3.3 Whilst I will not supervise or manage your Contractor’s works, I will make agreed site visits during the construction works, to liaise between you and the Contractor if you request and to help ensure that construction is progressing in accordance with the design. I will notify you of discrepancies between the design and the actual works being delivered so that you may take steps to rectify such changes as you see fit.
4.0 Party Wall Act 1996.
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.
5.0 Garden Lighting
If lighting is required in the garden I can produce an outline lighting plan for a qualified electrician to then design and cost a full electrical specification for you. All electrical works must be carried out and signed off by a qualified electrician. If you do not know a qualified electrician who you wish to appoint then, if requested, I can recommend a qualified electrician. The contract between you and your appointed electrician including the cost and payment terms will be an entirely separate contract between the Client and the electrician.
6.0 Ponds and Water Features
Depending on the size and complexity of a pond or water feature, this may need to be referred to a water specialist for full design, technical specification and installation and may not necessarily be included in the Contractor’s remit. If this is the case then, if requested, I can recommend a suitable specialist. You can appoint directly for this aspect of the project.
7.0 Completion and Handover
On completion of my involvement in the project, you will be asked to sign a ‘Garden Hand-Over’ form acknowledging that the future care of the garden is now your responsibility; it also includes some broad, general advice on how to look after it. A detailed maintenance schedule and seasonal site visits are not included in the Design Services, but if requested a bespoke maintenance schedule tailored to your circumstances can be drawn up for your garden at an additional cost after works have been completed by your appointed Contractor.
8.0 Client Responsibilities
8.1 You will provide me, at the time of asking, with the necessary information in order to carry out the Services. You will warrant the accuracy of this information and that the information is not subject to any third party rights that would prevent me from using this information. You will be liable for any costs that I may suffer if this warranty is not true.
8.2 You will allow reasonable access to both you and the Site at the agreed times in order to carry out the Services.
8.3 You will notify me 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 me as soon as possible of any structural alterations that may affect the Works.
8.4 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 the arrangement of any planning permission or licences in respect of the Works. You will cover any fines or damages that are incurred by either party as a result of failing to make such arrangements and you will indemnify me 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.
8.5 Nothing in this contract shall require me 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.
9.0 Intellectual Property Rights and Licence
9.1 I am the owner of all intellectual property rights in the Designs together with the rights in any developments and modifications in such Designs. I assert the moral rights that I may have in any Designs.
9.2 I 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 I will be allowed to refer to you in any publicity after the Services have taken place including the taking and publication of photographs of the Works and the Site.
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 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. I will then carry out the varied contract as if the variation was originally included in the Proposal. I may refuse to accept a variation if it reduces the value of the contract by ten percent or more.
10.2 If you require services outside of the scope of the Proposal or at a higher level of service than that currently subscribed, then I will try to carry out such service at our convenience and for a fee that I will set at that time.
10.3 I may vary these terms and conditions by giving you 14 days’ prior written notice if I am required to do so for reasons beyond our reasonable control.
11.1 The Fees for the Services are set out in the Fees and Expenses Scheme 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.
11.2 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 you upon receipt of the invoice. If sent by post, the invoice shall be deemed to have been received two working days after posting. I reserve the right to charge interest at 8% per annum above the base rate of the Bank of England on any outstanding amounts (calculated on a daily basis) that remain payable after the due date. If you fail to pay an invoice by the due date, I may, after fourteen days’ prior notice, suspend the performance of the Services until payment in full is received.
12.1 In the event of any fault or defect arising in the Services, I shall have the right to remedy such fault where possible by resupplying the Service. In the event that you do not advise me 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.
12.2 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 I can accept no responsibility for that contract or the supplies under it.
12.3 I will not be liable in any way whatsoever whether that be under contract, tort or otherwise, for any indirect or consequential loss or damage, loss of revenue, loss of profit, loss of goodwill, costs, expenses or other claims for consequential compensation (even if due to our negligence, such loss being reasonably foreseeable or if you had been advised of the possibility of suffering such loss) that you may suffer as a result of the Services provided under this contract.
12.4 Nothing in this contract shall affect the statutory rights of a consumer.
12.5 Nothing herein shall limit either party’s liability for death or personal injury arising from the proven negligence by itself or its employees.
12.6 I will use reasonable endeavours to comply with any specified delivery dates but no such dates are guaranteed and I exclude liability for any loss (whether direct, consequential or otherwise) resulting from any delay in the delivery of the Services.
12.7 The provisions of this clause 12 shall remain in full force and effect after termination of this contract for whatever reason
13.0 Transfer of Rights
I will be entitled to transfer all or any of our rights or obligations under this contract and to use sub-contractors. You will need my prior written permission before transferring any or all the rights to a third party.
14.1 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.
14.2 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.
14.3 You may cancel this contract at any time by giving us at least one month’s advance written notice but you will have to pay for the Services carried out up to the date of expiry of the notice. I may also assist you in the cancellation of any third party contracts but I 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 9 will end and you must stop using any Designs immediately.
14.4 If you cancel or terminate the contract, you remain responsible for either, the cancellation costs incurred by me for the goods and plants that I have ordered from a supplier (if these can be returned by me), or for full payment of any goods or plants that were ordered prior to cancellation or termination of the contract and which cannot be returned by me to the supplier. Until payment in full has been received for the goods supplied by me, the property and title to the goods including plants remains with me and you agree that I am authorised to enter the location where the goods are held to take possession of the goods including plants and if necessary remove them.
15.0 Force Majeure
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). 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).
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.
17.0 Proper Law
These terms and conditions will be governed by and construed in accordance with the laws of England. 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 14 days of the matter being raised then the parties will submit to the exclusive jurisdiction of the English Courts.
Notices to the address specified in the Proposal must be given in writing either by hand, by first class post, or by facsimile transmission provided that there is a transmission sheet showing that the transmission was properly transmitted to the correct number. Post will be judged to have arrived 2 days from date of posting. Notices sent by other means will be deemed received on delivery.
19.0 Contracts (Rights of Third Parties) Act 1999
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.
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.
21.0 Entire Agreement
This contract, the Proposal and any variation to the Proposal in accordance with clause 10 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.
All payments are to be made by online bank transfer, cheque or cash. Credit or debit cards are not accepted.
Payment will be due within 14 days of invoice.
Payment for the plants is required upon delivery to your garden and before they are planted. All plant delivery charges are charged at cost to you as charged to me by the plant supplier.
23.0 Planting and Plants
23.1 If at the time of delivery, any goods including plants have any defect or damage, upon notification I will either repair or replace as appropriate any which were defective at the time of delivery to you. My liability is limited to the repair or replacement of such goods by similar goods and with plants of similar age and quality appropriate to the season in which they are replaced. In the event that you do not advise of any defect or damage to goods other than plants within seven days after delivery, you shall be deemed to have accepted the goods.
23.2 Plants will be replaced at no charge if they prove unsuitable for the location within a year or are damaged due to incorrect planting and/or staking. No responsibility will be taken for losses due to incorrect care by the client or becoming damaged due to factors including but not limited to neglect, extreme weather conditions including wind, rain, heat or drought, disease, pest attack, inappropriate watering, a change in soil conditions or fertilisation by you at your property after delivering to you. Any replacement of failed plants is at my discretion.
24.0 General Data Protection Regulations
24.1 The personal information you provide to E&E is collected and processed for the purposes of communicating with you whilst you engage the design services of E&E and to ultimately provide you with a service.
24.2 Your personal information is stored by E&E in Livedrive and on the Wix website platform. Information about Livedrive’s GDPR compliance can be found here:
Information about Wix’s GDPR compliance can be found here:
24.3 If, as part of the services provided to you by E&E, you request that I liaise between you and third parties e.g. contractors, surveyors, then your personal information as in name, address and contact details will be shared with them. The information you provide will not be shared with other third parties, aside from above. Photographs and designs regarding your garden used in publicity will not indicate location or full name details of the owner(s).
24.4 We do not gather personal information about you from third parties.
24.5 Automated decision making and profiling processes are not used by E&E.
24.6 The information you provide will be held for a maximum of 3 years and will be deleted thereafter.
24.7 The GDPR confers a number of rights, including:
You have the right to withdraw your consent at any time. Your personal information will then be deleted from all the platforms upon which it is stored.
You have right to request access to a copy of your data in electronic form.
You have the right to correct any personal information, if it is inaccurate or incomplete.
You have “the right to be forgotten”, meaning you can request the deletion of your data at any time.
You have the right to request a halt on processing of your personal information if you object.
Please contact E&E if you wish to exercise any of these rights.
24.8 If you have any concerns about the way in which E&E has collected, shared or processed your personal information, please contact the Information Commissioner’s Office.