Terms and Conditions – Updated June 2023
- Interpretation
1.1 In these Conditions the following words have the following meanings: ‘Company’ means Shepherds Landscaping & Building Ltd.
‘Conditions’ means the standard terms and conditions of sale set out in this document; ‘Contract’ means the contract for the sale of the Works, including Goods and Services to be supplied by the Company pursuant to these Conditions, the Company’s standard contract of sale (setting out the description and quantity of the Goods to be supplied by the Company) and any special terms and conditions agreed in writing between the Customer and the Company; ‘Customer’ means any person (which shall include an individual firm, body, corporate or unincorporated association) with whom the Company contracts for the supply of goods or services; ‘Goods’ means the goods (or any installation of the goods); ‘Works’ means the overall work carried out to complete the contract; Services’ refers to the labour work required to carried out to complete the contact, specified in the Company’s standard contract of sale to which these Conditions are annexed.
1.2 References to a clause or clauses are references to a clause or clauses in these Conditions
- Constitution of the Contract and Specification of Works
2.1 The Customer acknowledges that it has read these Conditions and that it is fair and reasonable to form part of the Contract.
2.2 The Contract shall be deemed to come into existence when the Company’s quote, tender or estimate, is accepted by the earlier of the Customer’s verbal or written acceptance or by the commencement of works and shall be on the basis that these conditions are agreed by the Customer.
2.3 The Customer has the right to cancel agreed works without charge, within 14 days of accepting a quote verbally or in writing, if the Works have not yet started. If Works have commenced before the end of the 14 days cooling off period the Works must be settled in full.
2.4 Cancellation of works must be received by the Company in writing.
2.5 Cancellation of contracted works 14 days after the acceptance date shall result in the full quote value becoming payable, unless otherwise stated by the Company. Any booking fee paid will be retained and the remaining value will be invoiced at the Company’s discretion.
2.6 These conditions shall apply in place of and prevail over any terms and conditions of purchase contained or referred to in the Customer’s order or in correspondence or any other terms or conditions elsewhere or implied by trade custom, practice or course of dealing unless specifically agreed to in writing by the Company and any purported provisions to the contrary are hereby are excluded or extinguished. Without prejudice to the foregoing generality any general conditions of order submitted by or on behalf of the Customer shall if inconsistent with these Conditions be deemed to have been rejected by the Company.
2.7 No variations of these Conditions, shall be binding unless agreed in writing by authorised representatives of the Company and the Customer.
2.8 The description and illustrations contained in the Company’s catalogues, price list and other advertising materials (including without limit specifications, technical data and performance criteria) are intended to present a general idea of the Works described on them, are given in good faith but are for guidance only and shall not be regarded as a representation as to the method of use or function of the Works.
2.9 The Company shall not be liable for any variations on the specification of the Works, which do not materially affect the use and operation of the Works or for the substitution of any materials or component parts of the Works by other materials or parts of a quality equivalent or superior to that originally specified.
2.10 It shall be the Customer’s responsibility to ensure that the Works are suitable for their intended purpose. Any knowledge that the Company has of the Customer’s intended purpose shall not, unless otherwise agreed, imply any warranty that the Works are suitable for that purpose.
2.11 The Company shall be entitled to carry our any part(s) of the manufacture of the Works through any agents or sub-contractors appointed by it in its absolute discretion for that purpose.
2.12 The Customer shall be responsible to the Company for ensuring the accuracy of the terms of an order for Works (including any applicable specification) submitted by the Customer and for giving the Company any necessary relevant information relating to the Works to enable the Company to perform the Contract.
- Price of Works
3.1 Works are estimated on a project basis, to deliver the required output. Length of time taken does not impact on the cost of the job. The written estimate will include the high level outline of work required. Work not listed on the estimate is not included in the cost.
3.2 All prices shall be calculated and paid in sterling or otherwise as the Company and the Customer shall agree.
3.3 Prices estimated are including Carriage and VAT or other taxes and include normal packaging and insurance.
3.4 All other rates, prices and discounts published in catalogues, list and other documents are subject to variation at any time and any relevant changes shall be notified to the Customer at the date of acceptance of the order. If no rate or price is quoted or published, the price shall be that current at the date of acceptance of the order.
3.5 The Company reserves the right, by giving notice to the Customer at any time before the commencement of Works, to increase the price of the Contract, to reject any increase in the cost to the Company which is due to any factor beyond its reasonable control (such as without limitation any foreign exchange fluctuation, alteration of duties, significant increase in the costs of labour, raw materials, fuel or other costs of manufacture and/or carriage), and change in delivery dates or quantity or specification for the Works requested by the Customer.
3.6 Changes requested by the Customer, during the Works, to previously agreed designs/layouts/styles will incur a charge, over and above the original estimate, with every change made. The Customer will be advised of the additional costs when changes are agreed. Any extra materials required due to changes will be collected prior to changes being made.
- Terms of Payment
4.1 The Company requires a booking/reservation fee, usually 50%, to secure the booking of Works. When the value of the project is in excess of £10,000 the booking fee will be a smaller % agreed with the Company at the outset. This payment is applied to material purchase costs and to reserve a space in our work plan, shall be paid prior to the work commencing, on a day deemed to be suitable by the Company. This payment secures a diary space with an estimated start date subject to clause 6.1 below. If payment is not received any space being held will be released to other customers. This amount will be calculated and advised to the Customer by the Company and must be paid by bank transfer. These monies are non-refundable after the 14-day cooling off period.
4.2 The balance will be due on within 24 hours of completion unless otherwise specified, higher priced Works will be due on stages towards completion as indicated to the customer. Payment of accounts must be received by 1 day following the final invoice date.
4.3 Where any account or part thereof is overdue for payment, the Customer shall cease to be entitled to the benefit of any discount specified in that account or any other account, and the Company shall be entitled to charge interest on the amount due from time to time from the last date of timeous payment in terms of clause 4.1 to the actual date of payment, at the rate of 8% per annum over the Bank of Scotland base rate in force from time to time.
4.4 If the Customer fails to make timeous payment or if the Customer ceases to trade or threatened to cease to trade or if the Customer makes any voluntary agreement with its creditors or becomes subject to an administration order or goes into liquidation, or a receiver is appointed to any of the assets of the Customer, or if matters are brought to the attention of the Company which result in the Company forming the reasonable opinion that the Customer is unable to pay its debts in the ordinary course of its business, then in any such event the Company may either suspend all further Works whether under this Contract or otherwise until payment is made in full or, at its option, treat the Contract as repudiated.
4.5 Any amounts due by the Customer to the Company under the Contract shall be payable in full without any compensation set-off or counter-claim.
4.6 The Company will be entitled to reimbursement of all legal and other direct costs properly incurred in and associated with the collection of overdue payments.
4.7 The Company may appropriate any payment made by the Customer to any sum due under the Contract or under any other such Contract as the Company thinks fit and may for this purpose disregard any appropriation by the Customer.
4.8 Price is based materials and daily rates of labour being invoiced to the agreed delivery schedule.
- Title to Works
5.1 Notwithstanding delivery, property and title in Works supplied under the Contract shall not pass to the Customer until all sums due to the Company under the Contract shall have been paid by the Customer.
5.2 Until property in the Works passes, the Customer shall keep the Works free from any lien, charge or encumbrances and the Company may at any time require the Works to be returned to it by the Customer and if any such requirement is not met the Company may repossess the Works and enter any premises of the Customer for that purpose.
5.3 Until property in the Works passes, the Customer shall so far as possible store the Goods in such a way that they are identifiable as the property of the Customer and from all other Goods in the possession of the Customer.
5.4 Notwithstanding the foregoing, the risk of damage to or loss destruction to the Goods shall pass to the Customer at the time the Goods are delivered in accordance with the Contract. Accordingly, the Company shall not be liable for the safety of the Goods and the Customer should therefore insure the Goods.
5.6 This clause 5 shall survive termination of the Contract for whatever reason.
5.7 All photographs of Works taken by the Company will remain the property of the Company to use as they see fit.
- Delivery of Goods and/or Services/Works
6.1 Unless otherwise specified, start dates or start periods given by the Company are estimates only and shall not be construed as fixed. These dates are affected by numerous external factors and the Company reserves the right to move start dates and periods according to what they can reasonably manage.
6.2 Completion timescales provided are an estimate of the time frame in which the job will be completed and shall not be construed as fixed. These dates are affected by numerous external factors and the Company reserves to extend completion according to what they can reasonably manage.
6.3 The Company will not necessarily attend site every day. Any access required to the site outwith working hours will be agreed with the Customer prior to Works being carried out, outwith normal working hours.
6.4 Any receipt obtained by the Company from the Customer accepting or taking delivery of the Goods shall be conclusive evidence of delivery by the Company to the Customer of the Goods or such part thereof as is indicated by the receipt.
6.5 If the Customer fails to take delivery of the Goods or any part thereof on the due date or to give adequate forwarding instructions to enable the Goods to be delivered on the due date, the Company may issue a written notice to the Customer stating that risk in the Goods shall be deemed to pass to the Customer on the date delivery was due and that thereafter the Company shall insure and store the Goods at the Customer’s expense and the Customer shall indemnify the Company in respect of all losses and expenses incurred by it arising out of such failure.
6.6 Unless otherwise agreed in writing between the Company and the Customer, the Company may deliver against any order a lesser number of Goods than the quantity of Goods ordered without any liability whatsoever to the Customer save that the Contract value shall be adjusted accordingly.
6.7 The Customer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties on them.
- Warranties and Liability
7.1 The Customer shall be deemed to have examined the work within three days of completion thereof (time being of the essence) and to have satisfied itself that they conform to the Contract. A claim that works are not in accordance with the Contract will not be accepted by the Company unless a separate written notice is given to the carrier concerned (if appropriate) and to the Company within three days of completion, followed by a fully and properly vouched claim within fourteen days of completion.
7.2 The Company shall have no liability to the Customer in respect of damaged or defective Goods where defects are caused by the use of or dealing with the works other than in accordance with any instruction supplied with the works, or by wear and tear, accident or misuse improper application or neglect of if any adjustments, alterations or other work has been done to the works by any person other than the Company.
7.3 Works reported by the Customer to be defective within a 3 month period following completion will be covered under warranty as follows:
Included in warranty: Broken or cracked joints, Deteriorated joints, Loose stones or bricks, Concrete work (any crack wider than 1 inch) areas will be patched and repaired, not replaced.
Not included in warranty:
Deterioration of joints or masonry surfaces due to over exposure from water, frost, mold, fungus and fire
Use of any chemical to clear or remove ice or snow from surface or any other products the Customer uses on the installations
Plants or lawn that die after installation as a result of poor soil conditions, lack of water or maintenance, insect infestations, fungus or disease. The Company s will not be held responsible for the quality of shrubs/plants after planting.
Timber that has spilt, cracked, expanded or shrunk due to weathering
Partial or complete collapsing of the structure from any act of God, including hurricane, lightening, flood, fire, heat, sun, frost etc.
Cracking, sinking or shifting in masonry, paving, soil or concrete surfaces due to settling, shifting, heat ,sun, water, flood, frost, abuse from new construction by location of new work or where a new build is under one year old.
Collision (human or mechanical), chips, cracks and damage caused by human, equipment, toys. furniture or other items
Improper use of structure (heavy machinery or delivery trucks)
Any defect caused by vandalism, misuse, accident, abnormal conditions or neglect
Concrete Work: Hairline cracks, spalling or slab shifting due to water, snow exposure and deicer
Stains, marks or visibility of mineral or iron deposits or oxidisation of any natural stone prodcuts
7.4 Works reported longer than 3 months of completion, or not conforming to the Contract, shall only be remedy at the sole option and discretion of the Company.
7.5 Save in relation to death or personal injury the Company’s liability (if any) to the Customer whether in contract, delict, quasi-delict or otherwise in respect of any defect in the Works or for any breach of the Contract or for any negligence or omission of the Company or its servants or agents or for any breach by the Company of any duty owed to the Customer in connection with the Contract shall be limited to the invoice value of the Work supplied and the Company shall not in any event be liable for any loss of profit or any indirect, special or consequential loss or damage or expenditure howsoever caused, nor for any adverse effects, resulting from the application to the Goods of any process, operation or treatment.
7.6 Subject as expressly provided in these Conditions and except for where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977) all warranties conditions or terms implied by statute or common law are excluded to the fullest extent permitted by law.
7.7 The Company shall not be liable to the Customer or deemed to be in breach of the Contract by reason of any delay or other failure to perform the whole or part of the Contract as a result of factors outside the Company’s control, and without prejudice to the forgoing generality, factors outside the Company’s control shall include the weather, Act of God, explosion, flood, tempest fire or accident, war or threat of war, sabotage insurrection, civil disturbance or requisition acts, restrictions regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental or local authority, import or export regulations or embargoes, strikes, lock-outs or other industrial action or trade disputes, difficulties in obtaining raw materials, labour, fuel, parts or machinery or power failure or breakdown in machinery.
7.8 Manufactured products are covered under the warranty of the manufacturer or the supplier as applicable. Natural products are guaranteed to be defect-free at installation. Cracking, hairline cracks and shailing of natural stone is beyond our control and is a characteristic of some natural materials. Labour is not included under warranty for the correction of defective material manufactured or supplied by others.
- Indemnity
8.1 The Customer will indemnify the Company against all claims, costs and expenses resulting from any infringement of any intellectual property rights or from any claim in respect of any breach of confidence passing off or unfair competition or the equivalent in any part of the world where such infringement or claim is due to the Company having undertaken the Works in accordance with specifications supplied by the Customer
- Arbitration
9.1 Any dispute or disagreement under or in connection with the interpretation or application of these Conditions or in respect of the supply of the Works shall be referred for determination by an independent arbiter appointed by agreement or in default of agreement nominated on the application of either the Company or the Customer by the president for the time being of the Law Society of Scotland. Such arbiter in the determination of such dispute or disagreement shall act as an expert and not as an arbiter whose decision (in the absence of manifest error) shall be binding on the Company and the Customer.
- General
10.1 Any written notice to be given under the contract shall be given by way of first class prepaid letter post or by e-mail or by personal delivery by the party giving it to the other party at its last business address notified to the other and shall be deemed to be delivered either forty-eight hours after posting (in case of a letter) or immediately upon receipt (in the case of facsimile transmission, telex, or e-mail).
10.2 The Customer shall not be entitled to cancel or repudiate the Contract.
10.3 The Customer shall not be entitled to assign or transfer in whole or in part the benefit or burden of the Contract without the Company’s prior written consent.
10.4 The rights and remedies of the Company set out in these Conditions shall be in addition to and without prejudice to any other rights and remedies which may be available to the Company at common law or under statute.
10.5 Save as herein completely varied, nothing in the Contract affects the rights of the Customer at common law or under statute.
10.6 If any provision of these Conditions is held by any competent authority to be invalid or enforceable 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.
10.7 The Contract shall in all respects be governed by and construed in accordance with the law of Scotland and Customer submits irrevocably to the non-exclusive jurisdiction of the Scottish Courts.
10.8 The Company reserve the right to take photographs of the Works and use any photographs taken by us. By entering into the contract the Customer gives permission for the property and surrounding area to be photographed during the construction and completion phase. The Customer understands that the photographs will be used for the purpose of Shepherds Landscaping promotion through such uses as advertising, website, displays, leaflets, digital media, newspapers and such like as we see fit. Photos will be passed to third parties for the purpose of advertising pr promotion.
10.9 The Company shall own all drawings and designs created by them for illustration of garden plans. The Company reserves the rights to charge costs for drawings/sketches over and above the cost of the Works quoted.
10.10 Drawings are for visualisation purposes only and they are not architectural, structural or engineering drawings, nor can they guarantee to be an exact match in terms of planting or construction material textures
