Terms and Conditions of Sale and Contract

Tree and Hedge Supply, Installation and Transplanting

 

1. Definitions and Interpretation

1.1 The definitions and rules of interpretation in this Condition shall apply in these Conditions.

‘Client’ means the company, firm, person, or public authority, and includes their successors or personal representatives, who accepts a quotation of PBL for the supply, installation or transplanting of trees , hedges, other plant stock or Goods and Services.

‘Goods’ means the goods (including any instalment of the goods or any parts for them) which PBL is to supply in accordance with these Conditions.

‘Services’ means any services to be undertaken in relation to any of the Goods under the Contract, including installation.

‘Supplies’ means the Goods and/or the Services, depending on the context.

Intellectual Property Rightsmeans any design rights, utility models, patents, inventions, logos, business names, trademarks, domain names, copyright, moral rights, rights in databases, source codes, reports, drawings, specifications, know how, trade secrets, rights in software, rights in the nature of unfair competition and the right to sue for passing off and any other equivalent or similar rights to any of the foregoing in any jurisdiction, whether registered or unregistered.

‘PBL’ means PRACTICALITY BROWN LIMITED (registered in England and Wales under number 2114017) and includes their successors or assignees.

‘Conditions’ means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Client and PBL.

‘Contract’ means the contract for the supply of Goods and Services which incorporates the offer made by quotation and is governed by these Conditions.

‘Writing’ includes email, letter, facsimile transmission and comparable means of communication, and receipt of which has been acknowledged in writing by a PBL office manager.

1.2 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.

1.3 Any reference to parties means the parties to the Contract and party shall be construed accordingly.

1.4 Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding or following those terms.

1.5 Words in the singular include the plural and in the plural include the singular.

1.6 A reference to one gender includes a reference to the other gender.

1.7 Condition headings do not affect the interpretation of these Conditions.

2.   Basis of the supply

2.1 In supplying Goods and/or Services to the Client, PBL shall supply and install trees, hedges, other plant stock or carry out other landscape services  and/or transplant the Client’s own trees on site in accordance with any written quotation of PBL which is accepted by the Client, or any written order of the Client which is accepted by PBL, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Client. . Any quotation of PBL is valid for a period of 30 days only from its date (unless otherwise specified), provided that PBL has not previously withdrawn it.

2.2 No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Client and a company director of PBL.

2.3 PBL’s employees or agents are not authorised to make any representations concerning the trees or any other aspect of the work unless confirmed by PBL in Writing.  In entering into the Contract the Client acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed. Nothing in this Condition 2.3 shall exclude or limit PBL’s liability for fraudulent misrepresentation.

2.4 Unless stated otherwise on the quotation, all quoted prices do not include for any specific pit preparation, the provision or installation of topsoil or compost, removal of spoil off site, assessing or providing drainage, locating services, liaising with or obtaining permits to work from statutory bodies, traffic management, standing time in relation to delays on site or any ground reinstatement work.

2.5 PBL will hire machinery and experienced operators at the rates set out on PBL’s standard price list or as agreed in advance with the Client.

2.6 Adequate access to the work area(s) should be agreed and prepared as necessary prior to PBL’s commencement on site by the Client. Any additional costs incurred as a result of inadequate or delayed access such as aborted visits to site, delivery, machine hire and labour costs will remain the Client’s responsibility to pay.

2.7 A reliable source of mains pressure clean water with adequate length of hose to reach the work area(s) must be made freely available to PBL’s staff.

2.8 Unless PBL has been contracted in advance to carry out guying of trees, PBL can take no responsibility for any trees that suffer wind damage or move after planting.  Where guying is carried out by PBL, PBL will take care to ensure that guying is adequate to support the tree in question but cannot take responsibility for any tree that breaks its guy or requires stronger guying.

2.9 PBL endeavours to always supply high quality plant stock, however, unless an installation and a comprehensive maintenance and guarantee contract is taken out with PBL prior to commencement on site, PBL cannot guarantee the survival of any trees supplied or moved.  PBL will however give recommendations regarding the required maintenance operations to minimise losses on request.

2.10 The setting out of a planting plan is the Client’s responsibility unless it has been agreed as part of the Contract in writing that PBL is responsible, in which case PBL will require the Client to check the setting out throughout the project, as once planted stock will not be repositioned without additional cost.

2.11 PBL can take no responsibility for any damage caused to any underground, overhead or surface services and utilities, other obstacles or structures such as ducts, pavements, bridges, tunnels, and roadways. Any such services, utilities, obstacles or structures are the responsibility of the Client to locate, mark clearly, protect, cordon off, brief to PBL’s operators and issue a permit to work in Writing.

2.12 The Client is deemed to have knowledge of the site or the property or land where the machinery is to work and plant stock is to be established. Although PBL endeavours to accurately assess the ground before commencing on site, it is often just a snapshot impression without any long term knowledge of the site, so the Client warrants that the site is suitable for the performance of the Services, taking into account all factors affecting the site; for the avoidance of doubt, this includes but is not limited to land drainage, animal grazing, soil contamination, vandalism, hazards or obstructions, extreme wind or frost, etc. If the site conditions are not suitable as aforesaid, then the costs of any additional plant, labour (including extra time), materials and equipment required to undertake the Services shall be payable by the Client.

2.13 The Client shall at all reasonable times allow PBL, its agents or its insurers to have access to all or any of their equipment or stock on site to inspect, maintain, repair or replace the same. So far as reasonably practicable the Client shall allow such access between 0700 hours and 1800 hours, Monday to Friday inclusive.

2.14 No cancellation rights under the Consumer Contracts Regulations 2013 (the “CCR”) shall be deemed to apply in respect of the Contract, because the Contract relates to perishable goods and such contracts may not be cancelled under the CCR.

2.15 The Client shall:

(a) take all steps to ensure the health and safety of PBL’s personnel whilst they are on site and shall be solely responsible for ensuring the safety of any and all other persons who are or may be present on site during the performance of the Services, including restricting access to those areas where the Services are to be performed to those individuals engaged in undertaking the Services, or providing assistance to those so engaged; and

(b) at all times whilst the Services are being performed, ensure, insofar as it is reasonably practicable to do so, that other operations are not undertaken on site, so as to ensure that the Services can be undertaken in one continuous, uninterrupted operation between 0700 hours and 1800 hours, Monday to Friday inclusive.

2.16 Tree Transplanting Only:

(a) Trees  to be moved and receiving holes to be dug or positions where new trees are to be planted should be clearly marked by the Client using marking paint and an assurance that no services run within five metres of a tree pit should be given to PBL’s operator prior to commencement on site.  No responsibility can be taken for trees moved in error or planted in the wrong position if clear marking has not been carried out by the Client or the Client’s agent.

(b) Any tyre punctures that become apparent on site are the responsibility of the hirer and any resultant downtime whilst repairing the puncture is also the hirer’s responsibility.  PBL will call out a tyre company to fix the puncture and the cost will be added to the next account to be submitted to the Client.

(c) PBL’s machine operator reserves the right to refuse to negotiate terrain that it considers to be detrimental to the machine’s safety or to lift trees that it considers could endanger PBL’s machine or other property.  Any resultant downtime as a result of PBL’s operator’s decision will remain the Client’s responsibility to pay.

(d) When ground conditions are hard, PBL recommends that the Client waters the trees and receiving holes well before tree moving commences on site.  This will enable more trees to be moved per day and is usually very cost effective.

2.17 If:

(a) the Goods are to be arranged or configured by PBL in accordance with any specification submitted by the Client; or

(b) the Services are to be performed in accordance with any specification submitted by the Client; then

(c) the Client shall hold PBL harmless and shall fully and promptly indemnify PBL against all loss, damages, costs and expenses awarded against or incurred by PBL in connection with or paid or agreed to be paid by PBL in settlement of any claim for infringement of any Intellectual Property Right of any other person which directly or indirectly results from any specification so submitted.

2.18 Any and all Intellectual Property Rights (howsoever arising), in relation to the Supplies shall at all times vest in and belong solely to PBL.

2.19 The Client acknowledges PBL’s ownership of any and all Intellectual Property Rights in the Goods and the Services provided to the Client pursuant to the Contract and agrees not to contest PBL’s ownership or use of any such Intellectual Property Rights.

2.20 The Client shall not, without the prior written consent of PBL, at any time from the first date of supply of the Services to the expiry of 12 months after the last date of supply of the Services solicit or entice away from PBL or employ (or attempt to employ) or otherwise engage or attempt to engage the services of any person who is, or has been, engaged as an employee, consultant or subcontractor of PBL in the provision of the Services.

2.21 Any consent given by PBL in accordance with Condition 2.20 shall be subject to the Client paying to PBL a sum equivalent to 15 % of the then current annual remuneration of PBL’s employee, consultant or subcontractor.

3.  Orders and specifications

3.1 The Client shall be responsible to PBL for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Client, and for giving PBL any necessary information relating to the Supplies within a sufficient time to enable PBL to perform the Contract in accordance with its terms.

3.2 No order which has been accepted by PBL may be cancelled, varied or deferred by the Client except with the agreement in Writing of PBL and on terms that the Client shall indemnify PBL in full against all loss (including loss of profit), costs (including the cost of all labour, including management time, and materials used), damages, charges and expenses incurred by PBL as a result of cancellation, variation or deferment.

3.3 Without prejudice to and subject to the provisions of Condition 3.2, the Client acknowledges and agrees that:

(a) many trees and hedges require lifting from the ground and preparing for delivery in advance of delivery or installation date, and some are imported from Europe to order and cannot be returned;

(b) any stock that has been lifted and prepared for delivery will be wholly chargeable to the client unless cancellation or amendment of order is received in writing and has been acknowledged by a PBL member of staff in writing prior to stock being lifted; and

(c) receipt of an order confirmation will trigger the instruction to start preparing stock.

4.                   Price of the supplies

4.1 The price shall be PBL’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in PBL’s regular list price current at the date of acceptance of the order.

4.2 PBL reserves the right, by giving notice to the Client at the later of any time before delivery of the Goods or any time before completion of the Services (as applicable), to increase the price of the Supplies to reflect any increase in the cost to PBL which is due to any factor beyond the control of PBL (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery or performance dates, quantities or specifications for the Supplies which is requested by the Client, or any delay caused by any instructions of the Client or failure of the Client to give PBL adequate information or instructions.

4.3 Unless otherwise agreed in writing by PBL, the Contract price shall be exclusive of Value Added Tax which will be charged at the rate which is applicable at the later of the date of delivery of the Goods or completion of the Services (as applicable).

4.4 Unless otherwise agreed in writing by PBL, all transportation, packaging and carriage costs related to the delivery of the Goods (including the cost of all related insurance coverage and the cost of loading and unloading the Goods) shall be borne by the Client.

5. Terms of Payment

5.1 Unless otherwise agreed in Writing payment shall be made in cleared funds in advance of delivery. Payment should be by BACs transfer, debit card or cash. An order of a maximum of £1000.00 can be accepted by credit card.

5.2 PBL may in its absolute discretion agree to open a credit account for a Client on the basis of references provided and a signed order acknowledgement.  If such an account is opened the Client shall pay the price of the Supplies within 30 days of the date of PBL’s invoice, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Client.  The time of payment of the price shall be of the essence of the Contract. Credit accounts are subject to credit limits above which prepayments or interim payments will be payable by the Client and new or dormant accounts may be asked for an advance deposit payment. Further stage payments may be required if PBL considers that the agreed credit limit is likely to be exceeded at any time.

5.3 Receipts for payment will be issued only upon request.

5.4 If the Client fails to make any payment on the due date then, without prejudice to any other right or remedy available to PBL, PBL shall be entitled to:

(a) cancel the Contract or suspend any further deliveries to the Client;

(b) appropriate any payment made by the Client to such of the Supplies (or any goods or services supplied under any other contract between the Client and PBL) as PBL may think fit (notwithstanding any purported appropriation by the Client);

(c) charge the Client with any costs incurred by PBL in the course of collecting outstanding monies due to PBL from the Client;

(d) suspend any warranty for the Supplies or any other goods or services supplied by PBL to the Client, whether or not they have been paid for;

(e) set off any amount owed by PBL to the Client against any amount owed by the Client to PBL on any account whatsoever;

(f) charge the Client interest (both before and after any judgment) on the amount unpaid, at the rate of 3% per cent per annum above National Westminster Bank Plc base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).

5.5 In the event of termination under sub-paragraph 5.4 (a) above, the Client must give PBL or their agents, immediate unobstructed access to recover their machinery and goods.

5.6 Unless the Client is contracting with PBL as a consumer, PBL reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.

6. Risk and property

6.1 Risk of damage to or loss of the Goods shall pass to the Client at the time of delivery or, if the Client wrongfully fails to take delivery of the Goods the time when PBL has tendered delivery of same.

6.2 Notwithstanding the supply, delivery and installation of the Goods, the passing of risk in them, or any other provision of these Conditions, the property in the Goods shall not pass to the Client until PBL has received in cash or cleared funds payment in full of the price.

6.3 Until such time as the property in the Goods passes to the Client, the Client shall hold the Goods as PBL’s fiduciary agent and bailee, and shall keep them separate from those of the Client and properly protected and insured and identified as PBL’s property. This Condition 6.3 shall not apply if the Client is contracting with PBL as a consumer.

6.4 Unless prior arrangement is made with PBL, any vehicle instructed to leave the public highway to effect delivery does so at the risk of the Client; in such circumstances, the Client shall make good to PBL all loss of or damage to any vehicles, the Goods and any other person or thing whatsoever from whatever cause the same may arise, loss or damage arising from PBL’s negligence excepted.

7. Warranties and Limitation of Liability

7.1 PBL warrants that:

(a) on delivery, the Goods shall be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and

(b) if the Client has made it expressly known to PBL in writing that the Goods shall be suitable for a particular purpose and PBL has expressly stated in writing that it will supply Goods suitable for that purpose, then the Goods shall be reasonably fit for the purpose so stated; and

(c) the Services will be performed with reasonable skill and care.

7.2 PBL’s liability pursuant to Condition 7.1 shall be limited:

(a) for Goods, to the replacement of any Goods found to be defective and notified to PBL within the period set forth in Condition 7.3; and

(b) for Services, to re-performing those Services found not to have been performed with reasonable skill and care and notified to PBL within the period set forth in Condition 7.3.

7.3 Any defect in the Goods shall be notified to PBL within 7 days from delivery of the Goods and any deficiency in the performance of the Services shall be notified to PBL within 7 days of completion of the performance of the Services; otherwise, the Supplies shall be deemed to be satisfactory.

7.4 PBL shall not be liable for any breach of any warranty in Condition 7.1, if:

(a) the Client makes any further use of any Goods which the Client has alleged to be defective after giving notice of any such defect;

(b) the defect arises because the Client failed to follow any oral or written instructions as to the use, storage, installation or maintenance of the Goods or (if there are none) good trade practice;

(c) the defect arises from wilful damage, negligence, abnormal working conditions, misuse of the Goods or from any other cause which is not due to the neglect or default of PBL;

(d) the full price for the Supplies has not been paid by the time for payment stipulated in Condition 5.2; or

(e) the defect is of a type specifically excluded by PBL by notice in writing.

7.5 The following provisions set out the entire financial liability of PBL (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client in respect of:

(a) any breach of these Conditions;

(b) any use made by the Client of any of the Goods and/or Services, or resale by the Client of any of the Goods; and

(c) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.

7.6 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979 and section 2 of the Supply of Goods and Services Act 1982 ) are, to the fullest extent permitted by law, excluded from the Contract.

7.7 Nothing in these Conditions excludes or limits the liability of PBL:

(a) for death or personal injury caused by PBL’s negligence; or

(b) under section 2(3), Consumer Protection Act 1987; or

(c) for any matter which it would be illegal for PBL to exclude or attempt to exclude its liability; or

(d) for fraud or fraudulent misrepresentation.

7.8 Subject to Condition 7.6 and Condition 7.7:

(a) PBL’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price; and

(b) PBL shall not be liable to the Client for loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect, special or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.

8. Insolvency of Client

8.1 This clause applies if:

(a) the Client makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or

(b) an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Client; or

(c) the Client ceases, or threatens to cease, to carry on business; or

(d) PBL reasonably apprehends that any of the events mentioned above is about to occur in relation to the Client and notifies the Client accordingly.

8.2 If this clause applies, then, without prejudice to any other right or remedy available to PBL, PBL shall be entitled to cancel the Contract or suspend any further deliveries and/or performance under the Contract without any liability to the Client, and if the Goods have been delivered and /or the Services have been performed but not paid for, the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.

9. Force Majeure

PBL reserves the right to defer the date of delivery, or to cancel the Contract or reduce the volume of the Supplies ordered by the Client (without liability to the Client) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of PBL including Acts of God, governmental actions, acts, restrictions, regulations, by-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority, war, threat of war, sabotage, insurrection, civil disturbance or requisition or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, tempest, accident, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), import or export regulations or embargoes, restraints or delays affecting carriers or any inability or delay in obtaining supplies of adequate or suitable materials, difficulties in obtaining labour, fuel, parts or machinery or power failure or breakdown in machinery provided that, if the event in question continues for a continuous period in excess of 180 days, the Client shall be entitled to give notice in writing to PBL to terminate the Contract.

 10. General

10.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice, save that any notice required to be given under Condition 7.3 shall be sent by first class registered post.

10.2 Each right or remedy of PBL under the Contract is without prejudice to any other right or remedy of PBL whether under the Contract or not.

10.3 The Contract constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements and understandings between the parties.

10.4 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.

10.5 Failure or delay by PBL in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.

10.6 Any waiver by PBL of any breach of, or any default under, any provision of the Contract by the Client shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.

10.7 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.

10.8 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English Courts.