standard terms of engagement

This Terms of Engagement document outlines the professional agreement between Designer (“we” or “us”), and the Client (“you”) as defined in the Fee Proposal. Its terms override terms that you may have sent or may send to us or any other written correspondence or verbal communication including any advice or recommendation made before we accept the order.

These terms are intended to:

• Provide all parties with clarity on an agreed framework within which to work

• Provide mutual understanding and reassurance to you, the client, and us, the Designer of our mutual rights, and the level of service you can expect from us

• Help manage and agree financial expectations, clearly describing topics which you, the Client might not have thought of raised thus far in our relationship, such as the payment fees and expenses, schedules of payment, invoicing arrangements et cetera.

• Thus, to create an atmosphere of equity and trust between you, the client and us, the Designer.

The following sections and clauses:

• Define some key terms used in this document

• Describe the Services provided by us, the Designer

• Note what we need from you, the Client

• Describe how finance works between us

• Note what happens if something changes, or goes wrong

• Describe how we manage any disputes

• Flag other key terms to agree upon

• And how to accept these terms

1. Definitions

“Design or Designs” means all designs including drawings and other design documents produced by us when performing the Services.

“Fee(s)” means the fees set out in the Fee Proposal or any variation to the Fee.

“Fee Proposal” means the written document(s) that we send to you together with these terms of engagement for the execution of the Services, which will be agreed by both of us.

"Project Management & Inspection" has the meaning given to it in Clause 5.

“Maintenance” means the aftercare and support of the Plants for an agreed period after planting. Excludes the regular watering regime needed in the first year after planting, which is to be undertaken by the Client, the Client’s irrigation system or a third party hired by the Client.

“Planting” means the planting of Plants by the Designer.

“Plants” means all trees, specimen trees and shrubs, shrubs, grasses, perennials, bulbs, seed, turf, fruit and vegetable plants, annuals and bedding plants

“Services” means the set of services to be provided by us under this contract as set out in the Fee Proposal.

“Site” means the location where the Works are to be carried out as set out in the Fee Proposal.

“Works” means all the hard and soft landscaping including preparation, construction and planting work undertaken at the Site to implement the Design(s).

“Working Day” means any day from Monday to Friday (inclusive) which is not Christmas Day, New Year’s Day, Good Friday or a statutory bank or public holiday.

What will we provide?

2. Services Provided

2.1 Once the contract is accepted by you, the Client, we will provide the Services set out in the Fee Proposal, that could be one or more of the following services

• Design & Consultation

• Plant Supply

• Project Management and Inspection of Works

• Planting

2.2 We will use reasonable skill and care following standards expected of a reasonable garden designer for the provision of the Services. We will provide the Services in a timely fashion, but any time deadline set out in the Fee Proposal is only an estimate.

3. Design and Consultation

3.1 If we have specified in writing in the Fee Proposal that we will carry out Design and Consultation, the Designer will provide a series of Designs as stipulated in the Fee Proposal.

3.2 For each Design drawing or design document, the Client is allowed to receive one revision within these terms under the agreed Fee as per Clause 9. Any additional revisions will be charged at an hourly or day rate, as per clause 10.

3.3 All specifications, figures, sizes and other descriptions in the Design are approximations only, should not be relied upon and will be confirmed with the third-party Contractor carrying out the Works.

4. Plant Supply

4.1 If we have specified in writing in the Fee Proposal that we will carry out Plant Supply, the Designer will source and supply the Plants for the proposed Design or Designs as set out in the Fee Proposal.

4.2 Plants will be supplied direct from the grower or trade nursery and will be inspected by the Designer upon delivery at the Client’s site. At the discretion of the Designer, the Designer will inspect Specimen Trees and Shrubs prior to delivery to the Client’s site.

4.3 Plants which are delivered to site from the grower or trade nursery, which are of inadequate quality or show signs of disease will be rejected and returned. This may have an impact on the timing of the Works, but no liability will be borne by the Designer.

4.4 To ensure plants remain healthy and disease free, for at least a period of three months after planting, the client must water the Plants on a weekly basis and in times of hot weather and drought, increase this frequency to daily.

4.5 We do not replace plants supplied which later die due to neglect, lack of sufficient watering or natural causes.

4.6 Any Plant Maintenance programs made with the Designer for the Plants, will be subject to a separate Fee Proposal to one which accompanies these Terms of Engagement.

5. Project Management and Inspection

5.1 If we have specified in writing in the Fee Proposal that we will carry out Project Management & Inspection then this means in practice we will:

• Conduct site inspections at appropriate intervals of the Works as agreed in the Fee Proposal.

• Provide verbal and written reports, against the Project Schedule

• Notify you of in said reports of any discrepancies that we have noted between the Design and the actual Works being delivered in order that you may take steps to rectify such changes as you see fit.

• We may, if agreed in the Fee Proposal, assist you in communicating with third parties providing the Works.

5.2 Because this agreement covers one or more services describe in Clause 2, whilst on agreement we will assist you to communicate with third parties, inspect and project manage the Works undertaken for the build of your garden, it is your responsibility to contract directly with third parties to carry out the Works.

5.3 Because you, the Client, will contract directly with the third party(ies) providing the Works, in practice, this means that by undertaking Project Management and Inspection, we will NOT:

• Supervise or manage the day-to-day completion of the Works

• Be held responsible for work undertaken by third parties, the way the Works are being carried out nor any other aspect of their progress.

• Take responsibility or liability for the Works, including the acceptance of any liability in respect of either the execution or performance of such third-party contractor, or the delivery or performance of the Works once completed.

6. Other Consultants, their Management & Fees

6.1 In the event that we, the Designer, need to appoint other consultants to satisfactorily provide the Services set out in the Fee Proposal, we will discuss any such requirement with you, the client, on a case-by-case basis, including additional fees charged by said consultants as part of the Project Budget.

6.2 If on your request as the Client, other third-party consultants are appointed, managed and paid directly by us, The Designer under-sub-contract, a management fee will be agreed with you, the client and added to the sub-contracted consultant’s fee. In this event, we, the Designer are then responsible for the management of that sub-contracted consultant, but we do not accept any liability for the quality or timely delivery of their work.

7. 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.

What do we need from you?

8. Client Responsibilities

8.1 You have certain responsibilities under this contract. Failure to comply with these responsibilities may result in us suspending or terminating the contract. If we incur any damages or fines through your failure to carry out your responsibilities, then you will repay us all such moneys on a full indemnity basis.

8.2 You will provide us at the time of asking with the necessary information to carry out the Services, including:

• A full client brief, co-produced with you and the Designer

• Relevant site information, such as boundary ownership and available property deeds pertinent to the delivery of the project

8.3 You will ensure the accuracy of this information, and that the information is not subject to any third-party rights that would prevent us from using this information. You will be liable for any costs that we may suffer if this warranty is not true.

8.4 During design and delivery of the project, you will:

• Provide timely responses to communications to support efficient project delivery

• Provide appropriate feedback on submitted designs and reports and responses to emails, in a timely manner such that the project may move forwards in accordance with the agreed schedule

• Notify the designer in a clear and timely manner of any changes or additions to the agreed client brief

• Expressly approve the prior stage of work before we move on to the subsequent stage - to avoid any misunderstandings

8.5 You will allow us reasonable access to both you and the Site at the agreed times to carry out the Services.

8.6 You will notify us 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 let us know as soon as possible of any structural alterations that may affect the Works.

8.7 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.

8.8 You will also be responsible for any planning permission or licences in respect of the Works unless otherwise expressly agreed in the Fee Proposal. 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 us 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.

8.9 Nothing in this contract requires us 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 deciding what investigations and actions should be taken in relation to such substances and shall commission such professional third-party advice as you consider necessary.

How does finance work between us?

9. Fees

9.1 Fees for the Services provided are set out in the Fee Proposal and will become fixed on the acceptance of the Fee 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.

9.2 We, the Designer, have the following Standard Variable Fees

• Project Management & Inspection @ 5% £. value of a Works contract

• Detailed Plant design, Purchasing and Planting @ 10% £. value of plants purchased

9.3 Fees for any third-party consultants required to satisfactorily provide the Services set out in the Fee Proposal, will be handled following Clauses 2.5 and 2.6 in these terms of Engagement.

10. Hourly and Day Rates

Additional work outside fixed fees will be charged as follows:

• Designer: £80/hour or £600/day

11. Expenses and Disbursements

Reasonable project-related expenses will be charged in addition to design fees and any agreed additional work, on hourly or day rate, including

• Mileage @ 45p/mile for petrol/diesel/hybrid and 9p/mile electric, as per UK Government guidance

• Travel on public transport or hire car @ cost

• Printing, for example of drawings and documents @ local printers’ rates

• Postage @ cost

• Accommodation, and sustenance.

All additional costs will be agreed in advance, including any other project specific costs not listed here.

12. Invoicing and Payment

12.1 The Fees will be payable in instalments in accordance with the Payment Schedule, or in the circumstances set out in the Fee Proposal.

12.2 Where stage payments are agreed in advance, we reserve the right not to undertake a succeeding stage until funds have been cleared for the previous stage.

12.3 Payment shall be due on receipt of an invoice by you, in the following manner:

• No later than 5 days after payment becomes due, you will notify us of the sum that you consider to have been due at the payment due date in respect of the payment and the basis on which that sum is calculated (i.e. a “Payment Notice”).

• The final date for payment shall be 14 days after the date on which payment becomes due.

• Unless a Pay Less Notice is served pursuant to clause 12.4, you will pay the sum referred to in the Payment Notice (or, if you have not served a Payment Notice, the sum referred to in the invoice) (the “Notified Sum”) on or before the final date for payment of each invoice.

12.4 Not less than 5 days before the final date for payment, you may give us notice that you intend to pay less than the Notified Sum (a “Pay Less Notice”). Any Pay Less Notice shall specify the sum that the payer considers to be due on the date the notice is served and the basis on which that sum is calculated.

12.5 All invoices are exclusive of value added tax and delivery charges which shall be added to the invoice where applicable.

12.6 Invoices will be issued digitally to an agreed email address provided by you, the Client, and deemed to have been received two Working Days after being mailed electronically.

12.7 Payment will be made by you, the Client, electronically by BACS to our, the Designer’s, business bank account using bank details we provide on invoices.

12.8 We reserve the right to charge interest at 8% per annum above the base rate of the Bank of England on any outstanding amounts (calculated daily) that remain payable after the final date for payment. If you fail to pay an invoice by the final date for payment, we may, after 7 days' prior notice, suspend the performance of all or any part of the Services until payment in full is received.

What if something changes?

13. Project Suspension

13.1 On occasion, projects have to pause, for example due to waiting for planning consent, a client change of circumstances, protracted bad weather, illness of one of the parties, travel overseas, or decision to phase which was not made at time of initial brief, et cetera.

13.2 You may suspend the Services at any time. In that event, all sums due at the date of suspension will become due for immediate payment.

13.3 In the event of project suspension, fees for remaining work will be reviewed after three months has elapsed – to account for any material changes that could affect said fees.

13.4 From that review

• If the client brief varies significantly from that agreed at the outset in the Fee Proposal, such that elements of redesign and thus additional time are required, we reserve the right to review and agree the relevant fee, as per terms of Variation in Clause 6.

• From that review, If the project budget requirement is altered significantly such that elements of redesign and thus additional time are required, you reserve the right to review and agree the relevant fee, as per terms of Variation in Clause 6.

• Any additional cost incurred by us in complying with these instructions will be added to the total Fees, unless such suspension was due to something we had done or failed to do.

13.5 Once we receive any further instruction from you to recommence work, we will use reasonable endeavours to reschedule the Services as soon as is practicable. This rescheduling will not be guaranteed to be at a time requested.

14. Project Variation

14.1 Services will be carried out in accordance with the agreed client brief as part of the Fee Proposal, and any significant changes to scope will be subject to a revised fee agreement.

14.2 Either party will be entitled to vary or amend the scope of the Services or the Fee 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 Fee 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. We will then carry out the varied contract as if the variation was originally included in the Fee Proposal.

14.3 We may refuse to accept a variation if it reduces the value of the contract by ten per centum or more.

14.4 If you require services outside of the scope of the Fee Proposal or at a higher level of service than that currently subscribed, then we will try to carry out such service at our convenience and for a fee that we will set at that time.

14.5 We may vary these terms and conditions by giving you 14 days’ prior written notice if we are required to do so for reasons beyond our reasonable control.

15. Project Termination

15.1 The Services will start on the date specified in the Fee 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, enters into administration, 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.

15.2 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 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.

15.3 Either party may terminate this contract at any time by giving the other party at least one month’s prior written notice. You will have to pay for the Services carried out up to the date of expiry of the notice. We may also assist you in the cancellation of any third-party contracts but we 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 8 will end and you must stop using any Designs immediately.

What if something goes wrong?

16. Liability

16.1 In the event of any fault or defect arising in the Services we provide, we shall have the right to remedy such fault where possible by re- supplying the Service. In the event that you do not advise us of any defect in the Services within 30 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.

16.2 You, the Client are responsible for the application for planning permission. Whilst we may offer advice on request, we, the Designer are not responsible, nor liable for determining whether planning permission is needed. This responsibility rests with the Client in discussion with the appropriate local authorities.

16.3 We are not liable for any work or advice provided by third parties or contractors.

16.4 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 we can accept no responsibility for that contract or the supplies under it.

16.5 As far as permitted by law, in no circumstances shall we be liable, in contract, tort (including negligence or breach of statutory duty) or otherwise howsoever and whatever the cause thereof (i) for any loss of profits, business, contracts, revenues or anticipated savings or (ii) for any special indirect or consequential damage of any nature whatsoever.

16.6 Nothing in this contract affects the statutory rights of a consumer.

16.7 Nothing herein shall limit either party's liability for death or personal injury arising from the proven negligence by itself or its employees.

16.8 We will use reasonable endeavours to comply with any specified delivery dates, but no such dates are guaranteed and we exclude liability for any loss (whether direct, consequential or otherwise) resulting from any delay in the delivery of the Services.

16.9 The provisions of this clause shall remain in full-force and effect after termination of this contract for whatever reason.

17. Right to Cancel

17.1 You can cancel this contract for any reason by giving us notice within 14 days of signing the contract.

17.2 You may send the written notice by post or email or you can deliver it in person. The notice should be sent or delivered to the name and address set out in the cancellation form attached.

17.3 The written notice will be considered to have been given on the day it is posted or sent by email, whether or not we actually receive it.

17.4 If you cancel this contract under Clause 15 (Termination) we will refund you any money you have paid to us in connection with this agreement, except in the circumstances following in clause 17.5 below.

17.5 You may have to pay for goods or services provided before you cancelled this contract if you agreed in writing to us providing the goods or services before the end of the fourteen-day cancellation period referred to in clause 15.1 above. You may have to pay for the following types of services provided before the cancellation:

• Services of any kind

• Goods needed in an emergency

• Goods that are personalised or made to your specification and any services relating to those goods

• Perishable goods (goods which decay or go bad quickly) Goods that have been used or incorporated into the land

18. Force Majeure

Neither party will be regarded as in breach of this Fee Proposal if the failure is because 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 and disbursements that are due to the date of termination (including contracts that cannot be cancelled).

19. Waiver

If either party chooses not to take up any right of action at any time, then this will not prevent that party from acting on the same or similar point at another time.

How do we manage any disputes and resolution?

20. Proper Law, in the event of Dispute

These terms and conditions will be governed by and construed in accordance with the laws of England and Wales. 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 28 days of the matter being raised then we firstly encourage methods of dispute resolution, such as arbitration or conciliation (in accordance with the SLGD Code of Conduct)

• Then as a last resort the parties will submit to the exclusive jurisdiction of the English Courts.

21. Notices

Notices to the address specified in the Proposal must be given in writing either by hand, by first class post, or by email with a ‘read receipt’. Post will be judged to have arrived 2 days from date of posting. Notices sent by other means will be deemed received on delivery.

22. 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.

What other key terms are included in this agreement?

23. Intellectual Property Rights and Licence

23.1 We are the owner of all intellectual property rights in the Designs together with the rights in any developments and modifications in such Designs. We assert the moral rights that we may have in any Designs.

23.2 Upon receipt of full payment of the Fees in cleared funds, we 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.

23.3 We will be authorised to refer to the Project in publicity and marketing materials, such as brochures, websites and social media, provided we receive your written consent in advance and ensure your privacy is respected. This includes:

• The taking and publication of photographs of the Works and the Site, both before, during and after the completion of the Project

• The taking and publication of videos of the Works and the Site, both before, during and after the completion of the Project

23.4 The provisions of this clause shall remain in full-force and effect after termination of this contract for whatever reason.

24. Severability

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.

25. Entire Agreement

This contract, the Fee Proposal and any variation to the Fee Proposal (in accordance with clause 14) 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.

26. Professional Membership

As a pre-registered member of the Society of Landscape and Garden Designers (SLGD), we are obliged to comply with its Code of Professional Conduct (Code of Professional Conduct and Good Practice | Society of Garden and Landscape Designers). Please tell us if you are not happy with any aspect of the Services. We will try to resolve any problems quickly and to your satisfaction. If you are not satisfied after speaking to us, you are entitled to raise the issue with the Society of Landscape and Garden Designers. A copy of the Society’s Complaints Procedure is available on request.

Accepting these Terms of Engagement

27. Acceptance

27.1 By confirming in writing or signing below, you, the Client, and we, the Designer, agree to the services and terms set out herein. This document should be read in conjunction with the accompanying Fee Proposal.

27.2 We, the Designer, will not start work before receiving as acceptance a signed Terms of Engagement or email from the client as acceptance of these terms, the quotes and estimates.

Agreed by the Client:

Name: ____________________________

Signature: ________________________

Date: _____________________________

Agreed by the Designer:

Name: ____________________________

Signature: ________________________

Date: _____________________________