These Terms and Conditions shall apply to the provision of services by Maldon Fencing & Landscaping Limited Trading as Chelmsford Fencing & Landscaping, a company registered in England under Company Number 12586141 of 4 Capricorn Centre, Cranes Farm Road, Basildon, Essex, SS14 3JJ (“the Fencing Company”) to customers that require their services.
Definitions and Interpretation
In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
means the contract into which the Parties will enter on the Customer’s acceptance of the Quotation and of these Terms and Conditions which shall incorporate, and be subject to, these Terms and Conditions;
means the date on which the provision of the Services will commence as agreed by the Parties;
means the times which the Parties shall agree upon during which the Fencing Company shall have access to the Property to complete the Job;
means any day (other than a Saturday or Sunday) on which ordinary banks are open for their full range of normal business in England;
means the customer that requires the Services subject to these Terms and Conditions and the Agreement;
means the total of all sums payable which shall be shown on the invoice issued in accordance with Clause 4 of these Terms and Conditions.
means the Customer’s initial request to acquire the Services from the Fencing Company as set out in Clause 2 of these Terms and Conditions;
means the products required for the completion of the Job which the Fencing Company shall procure and supply;
means the Customer’s home, as detailed in the Order and the Agreement, at which the Job is to take place;
means a quotation detailing proposed fees and services supplied to the Customer in accordance with Clause 2 of these Terms and Conditions;
means the fee which will be quoted to the Customer following the Order which may vary according to the actual work undertaken as set out in Clause 4 of these Terms and Conditions;
means the services provided by Maldon Fencing & Landscaping Limited Trading as Chelmsford Fencing & Landscaping, a company registered in England under 12586141 of 4 Capricorn Centre, Cranes Farm Road, Basildon, Essex, SS14 3JJ and includes all employees and agents of Maldon Fencing & Landscaping Limited Trading as Chelmsford Fencing & Landscaping as detailed in Clause 6 of these Terms and Conditions; and
means any occasion, scheduled or otherwise, on which the Fencing Company shall visit the Property to render the Services.
Unless the context otherwise requires, each reference in these Terms and Conditions to:
“writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
“these Terms and Conditions” is a reference to these Terms and Conditions and each of the Schedules as amended or supplemented at the relevant time;
a Schedule is a schedule to these Terms and Conditions;
a Clause or paragraph is a reference to a Clause of these Terms and Conditions (other than the Schedules) or a paragraph of the relevant Schedule; and
a “Party” or the “Parties” refer to the parties to the Agreement.
The headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Terms and Conditions.
Words imparting the singular number shall include the plural and vice versa.
References to any gender shall include the other gender.
References to persons shall include corporations.
The Fencing Company accepts orders for their Services through their website, emails, telephone or post.
When placing an Order the Customer shall set out, in detail, the Services required. Details required include the location and size of the Property, the size of the garden, the type of fencing required, the exact location and line of the boundary and whether or not there are any known underground services such as drainage or utility pipes etc, that could interfere with the work requested.
Once the Order is complete and submitted the Fencing Company shall prepare and submit a Quotation to the Customer either by email or first class post which shall set out the required Deposit and fee, detailed in Clauses 3 and 4 respectively.
The Customer shall be free to make changes to the Order and Quotation prior to acceptance. The Customer may accept the Quotation by telephone, email or first class post.
The Quotation Price remains valid for 60 days from the date of the quotation unless otherwise agreed in writing.
At the time of accepting the Quotation or not more than 7 days thereafter the Customer shall be required to pay a Deposit to the Fencing Company. The Deposit shall be 25% of the Quoted Fee. Orders shall not be deemed confirmed until the Deposit is paid in full.
Subject to the provisions of Clause 8 the Deposit shall be non-refundable.
Fees and Payment
The Quoted Fee shall include the price payable for the Services and for the estimated Products required to render the Services.
The Fencing Company shall use all reasonable endeavours to use only the Products (and quantities thereof) set out in the Quotation and the Agreement; however if additional Products are required the Final Fee shall be adjusted to reflect this. Any such increases shall be kept to a necessary minimum.
In the event that the price of Products or services increase during the period between the Customer’s acceptance of the Quotation and the commencement of the Services, the Fencing Company shall inform the Customer of such increase and of any difference in the Final Fee.
The Fencing Company shall invoice the Customer when the provision of the Services is complete and the Customer has signed to indicate their acceptance of the work undertaken.
All invoices must be paid immediately upon completion of the works unless otherwise agreed in writing.
Any sums which remain unpaid following the expiry of the time period set out in sub-Clause 4.5 shall incur interest on a daily basis at 3% above the base rate of Barclays Bank obtaining at the time.
Risk and Retention of Title
Risk of damage to or loss of the Products shall pass to the Customer at the time when they are delivered to the Property by the Fencing Company or otherwise used for the provision of the Services.
Notwithstanding the passing of risk in the Products under sub-Clause 5.1, or any other provision of these Terms and Conditions, legal and beneficial title in the Products shall not pass to the Customer until the Fencing Company has received in cash or cleared funds payment in full of all Fees due.
Until payment has been made to the Fencing Company in accordance with these Terms and Conditions and title in the Products has passed to the Customer, the Customer shall be in possession of the Products as bailee for the Fencing Company and the Customer shall, wherever possible (i.e. where they have not already been installed, or otherwise fixed to the Property in such a manner as they cannot be easily removed without damage), store such Products separately from any other property or materials belonging to the Customer or a third party.
The Services shall be rendered in accordance with the specification set out in the accepted Quotation and in the Agreement (as may be amended by mutual agreement from time to time).
The Fencing Company may provide sketches, impressions, plans or similar documents in advance of the Job. Any such material is intended for illustrative purposes only and is not intended to provide an exact specification of the Job nor to guarantee specific results.
The Fencing Company will agree with the Customer a mutually agreed date and time for the works to be undertaken and will use all reasonable endeavours to ensure they attend at that agreed date and time. The Fencing Company do not accept liability in respect of the non-attendance or late attendance of its workers or for the late or non-delivery of materials.
In the event that the Fencing Company is unable to gain access to the premises at the time and date booked, the Customer will be liable to pay a minimum amount equivalent to one and a half hour’s charged time.
The Fencing Company shall use all reasonable endeavours to ensure that the Products used match those chosen by the Customer. Notwithstanding this the Fencing Company cannot guarantee the quality, properties or consistency of the Products. Timber is a natural product and once exposed to the elements may crack, warp, twist, shrink or split, this is not a defect and will not usually affect the strength of the timber. In the event that the materials chosen by the Customer are unavailable the Fencing Company shall be free to use their discretion to select suitable alternatives. When selecting alternatives the Fencing Company shall use all reasonable endeavours to ensure as close a match as possible to the Customer’s original requirements.
The Fencing Company shall ensure that the Services are rendered with reasonable care and skill and to a reasonable standard that is commensurate with best trade practice.
The Fencing Company shall ensure that no parts of the Property suffer damage as a result of his rendering of the Services. Any damage that may occur shall be made good at no additional expense to the Customer prior to completion of the Job. The Fencing Company may instruct the Customer to take reasonable steps to protect their Property including while the Services are being rendered. The Fencing Company shall not be liable for any damage which occurs as a result of the Customer’s failure to follow such instructions.
The Fencing Company shall ensure that he complies with any and all relevant codes of practice.
The Fencing Company shall not be liable for any unavoidable damage caused or for any unforeseeable loss the Customer may suffer as a result of the works undertaken, nor shall the Company be liable for any loss of any nature which is not caused by their negligence or breach of the terms of agreement.
The Fencing Company shall properly dispose of all waste that results from his rendering of the Services.
Where a Job is to last for more than one working day, the Fencing Company shall, insofar as is reasonably possible, leave the Property in a habitable state and shall ensure that disruption to the Customer’s use and enjoyment of their Property while work is being carried out is kept to a minimum. All tools and materials shall, wherever possible, be tidily confined to areas where work is being carried out or shall be removed from the Property at the end of each working day.
If any consents, licenses or other permissions are needed from any third parties such as landlords, planning authorities, local authorities or similar, it shall be the Customer’s responsibility to obtain the same in advance of the commencement of the Services.
It is the Customer’s responsibility to notify the Fencing Company of all underground services before commencement of the work. Any damage to these services, where the Customer has failed to notify the Fencing Company of their existence, will be the Customer’s sole responsibility.
The Customer shall ensure that the Fencing Company can access the Property at the Agreed Times to render the Services.
The Customer shall have the option of giving the Fencing Company a set of keys to the Property or being present at the Agreed Times to give the Fencing Company access. The Fencing Company warrants that all keys shall be kept safely and securely.
The Customer shall ensure that the Fencing Company has access to electrical outlets and a supply of hot and cold running water. If additional work is incurred through the Customer’s failure to provide these may result in an increase in the price quoted.
The Customer must give the Fencing Company at least two business day’s notice if the Fencing Company will be unable to provide the Services on a particular day or at a particular time. The Fencing Company will not invoice for cancelled Visits provided such notice is given. If less than 24 hours notice is given the Fencing Company shall have the right to invoice the Customer at his normal rate.
Cancellation of Contract During the Cooling Off Period
The Customer has a statutory right to a “cooling off” period. This period begins once the contract between the Fencing Company and the Customer is formed and ends at the end of 14 calendar days after that date.
If the Customer wishes to cancel the contract within the cooling off period the Customer should inform the Fencing Company immediately by a clear statement (e.g. a letter sent by post, fax or email to the postal address, fax number or email address specified on the Quotation or otherwise notified to the Customer).
To meet the cancellation deadline, it is sufficient for the Customer to send his or her communication concerning the exercise of the right to cancel before the cancellation period has expired.
If the Customer exercises the right to cancel he/she will receive a full refund of any amount paid to the Fencing Company in respect of the contract.
The Fencing Company will refund money using the same method used to make the payment, unless the Customer has expressly agreed otherwise. In any case, the Customer will not incur any fees as a result of the refund.
The Fencing Company will process the refund due to the Customer as a result of a cancellation without undue delay and, in any case, within the period of 14 days after the day on which the Fencing Company is informed of the cancellation.
If the Agreed Date falls within the cooling off period the Customer must make an express request for provision of the Services to begin within the 14 calendar day cooling off period. This request forms a normal part of the ordering process. By making such a request the Customer acknowledges and agrees to the following:
If the Services are fully performed within the 14 calendar day cooling off period, the Customer will lose the right to cancel after the Services are complete.
If the Customer cancels the Services after provision has begun but before it is complete the Customer will still be required to pay for the Services supplied up until the point at which the Customer informs the Fencing Company of his/her wish to cancel. The amount due shall be calculated in proportion to the full price of the Services and the actual Services already provided. Any sums that have already been paid for the Services shall be refunded subject to deductions calculated in accordance with the foregoing. Refunds, where applicable, will be issued within 7 working days and in any event no later than 14 calendar days after the Customer informs the Fencing Company of his/her wish to cancel.
Clause 9 applies to cancellation of the Services after the 14 calendar day cooling off period has elapsed.
Cancellation after the Cooling Off Period
The Customer may cancel or reschedule the Job at any time before the Agreed Date. Subject to the provisions of clause 8, the following shall apply to cancellation or rescheduling:
If the Customer cancels the Job more than 28 days before the Agreed Date the Fencing Company shall issue a full refund of all sums paid, including the Deposit provided no special orders have been requested.
If the Customer reschedules the Job more than 28 days before the Agreed Date the Fencing Company shall retain all sums paid, including the Deposit and shall deduct all such sums from any related balance payable on the rescheduled Job.
If the Customer cancels the Job less than 28 days but more than 14 days before the Agreed Date the Fencing Company shall refund any sums paid less the Deposit.
If the Customer reschedules the Job less than 28 days but more than 14 days before the Agreed Date the Fencing Company shall retain any sums paid including the Deposit and shall deduct all such sums (excluding the Deposit) from any balance payable on the rescheduled Job. A new Deposit shall be payable on the rescheduled Job.
If the Customer cancels the Job less than 14 days before the Agreed Date the Fencing Company shall retain all sums paid and any outstanding sums shall become immediately payable. No refund shall be issued.
If the Customer reschedules the Job less than 7 days before the Agreed Date the Fencing Company shall retain all sums paid and any outstanding sums shall become immediately payable. No refund shall be issued and no sums paid will count toward the fees and Deposit payable on the rescheduled Job.
The Fencing Company may cancel the Job at any time before the Agreed Date and shall refund all sums paid, including the Deposit.
The Fencing Company reserve the right to refuse or decline work at their discretion. Where a Deposit is taken and the Company subsequently decline the work the Deposit will be refunded in full.
Liability, Indemnity and Insurance
The Fencing Company shall ensure that they have in place at all times suitable and valid insurance that shall include public liability insurance.
The Fencing Company’s total liability for any loss or damage caused as a result of its negligence or breach of these Terms and Conditions or of the Agreement shall be limited to £5,000,000.
The Fencing Company is not liable for any loss or damage suffered by the Customer that results from the Customer’s failure to follow any instructions given by the Fencing Company.
Nothing in these Terms and Conditions shall limit or exclude the Fencing Company’s liability for death or personal injury.
Subject to sub-Clause 10.2, the Fencing Company shall indemnify the Customer against any costs, liability, damages, loss, claims or proceedings arising out of the Fencing Company’s rendering of the Services or any breach of these Terms and Conditions.
The Customer shall indemnify the Fencing Company against any costs, liability, damages, loss, claims or proceedings arising out of the Customer’s failure to meet any of its obligations or any other breach of these Terms and Conditions.
The Fencing Company will guarantee its work against faulty workmanship for 90 days. This Guarantee will be null and void if the defect in the work completed is found to have been caused by misuse or negligence of the Customer or any third party, or has been modified or tampered with by any person other than an employee of The Fencing Company.
The Fencing Company will not share the Customer’s personal data with any third parties for any reasons without the prior consent of the Customer. Such data will only be collected, processed and held in accordance with the Fencing Company’s rights and obligations arising under the provisions and principles of the Data Protection Act 1998.
No Party to the Agreement will be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, internet service provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
Either Party may immediately terminate the Agreement by giving written notice to the other Party if:
any sum owing to that Party by the other Party under any of the provisions of the Agreement is not paid within 30 Business Days of the due date for payment;
the other Party commits any other breach of any of the provisions of the Agreement and, if the breach is capable of remedy, fails to remedy it within 30 Business Days after being given written notice giving full particulars of the breach and requiring it to be remedied;
an encumbrancer takes possession, or where the other Party is a company, a receiver is appointed, of any of the property or assets of that other Party;
the other Party makes any voluntary arrangement with its creditors or, being a company, becomes subject to an administration order (within the meaning of the Insolvency Act 1986);
the other Party, being an individual or firm, has a bankruptcy order made against it or, being a company, goes into liquidation (except for the purposes of bona fide amalgamation or re-construction and in such a manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on that other Party under the Agreement);
anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the other Party;
that other Party ceases, or threatens to cease, to carry on business; or
control of that other Party is acquired by any person or connected persons not having control of that other Party on the date of the Agreement. For the purposes of this Clause 14, “control” and “connected persons” shall have the meanings ascribed thereto by Sections 1124 and 1122 respectively of the Corporation Tax Act 2010.
For the purposes of sub-Clause 14.1.2, a breach shall be considered capable of remedy if the Party in breach can comply with the provision in question in all respects.
The rights to terminate the Agreement shall not prejudice any other right or remedy of either Party in respect of the breach concerned (if any) or any other breach.
Effects of Termination
Upon the termination of the Agreement for any reason:
any sum owing by either Party to the other under any of the provisions of the Agreement shall become immediately due and payable;
all Clauses which, either expressly or by their nature, relate to the period after the expiry or termination of the Agreement shall remain In full force and effect;
termination shall not affect or prejudice any right to damages or other remedy which the terminating Party may have in respect of the event giving rise to the termination or any other right to damages or other remedy which any Party may have in respect of any breach of the Agreement which exist at or before the date of termination; and
subject as provided in this Clause 15 and except in respect of any accrued rights neither Party shall be under any further obligation to the other.
No failure or delay by either Party in exercising any of its rights under the Agreement shall be deemed to be a waiver of that right, and no waiver by either Party of a breach of any provision of the Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision.
Each Party shall execute and do all such further deeds, documents and things as may be necessary to carry the provisions of the Agreement into full force and effect.
Subject to any provisions to the contrary each Party shall pay its own costs of and incidental to the negotiation, preparation, execution and carrying into effect of the Agreement.
Neither Party shall be entitled to set-off any sums in any manner from payments due or sums received in respect of any claim under the Agreement or any other agreement at any time.
Assignment and Sub-Contracting
Subject to sub-Clause 20.2 The Agreement shall be personal to the Parties. Neither Party may assign, mortgage, charge (otherwise than by floating charge) or sub-licence or otherwise delegate any of its rights thereunder, or sub-contract or otherwise delegate any of its obligations thereunder without the written consent of the other Party, such consent not to be unreasonably withheld.
The Fencing Company shall be entitled to perform any of the obligations undertaken by them through any other member of their group or through suitably qualified and skilled sub-contractors. Any act or omission of such other member or sub-contractor shall, for the purposes of the Agreement, be deemed to be an act or omission of the Fencing Company.
The Parties agree that the times and dates referred to in the Agreement are for guidance only and are not of the essence of the Agreement and may be varied by mutual agreement between the Parties.
Relationship of the Parties
Nothing in the Agreement shall constitute or be deemed to constitute a partnership, joint venture, agency or other fiduciary relationship between the Parties other than the contractual relationship expressly provided for in the Agreement.
Third Party Rights
No part of the Agreement is intended to confer rights on any third parties and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to the Agreement.
All notices under the Agreement shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.
Notices shall be deemed to have been duly given:
when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
when sent, if transmitted by facsimile or e-mail and a successful transmission report or return receipt is generated; or
on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
on the tenth business day following mailing, if mailed by airmail, postage prepaid.
In each case notices shall be addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.
The Agreement contains the entire agreement between the Parties with respect to its subject matter and may not be modified except by an instrument in writing signed by the duly authorised representatives of the Parties.
Each Party shall acknowledge that, in entering into the Agreement, it does not rely on any representation, warranty or other provision except as expressly provided in the Agreement, and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
The Agreement may be entered into in any number of counterparts and by the Parties to it on separate counterparts each of which when so executed and delivered shall be an original, but all the counterparts together shall constitute one and the same instrument.
In the event that one or more of the provisions of the Agreement and/or of these Terms and Conditions is found to be unlawful, invalid or otherwise unenforceable, that / those provision(s) shall be deemed severed from the remainder of the Agreement and/or these Terms and Conditions. The remainder of the Agreement and/or these Terms and Conditions shall be valid and enforceable.
The Parties shall attempt to resolve any dispute arising out of or relating to the Agreement through negotiations between their appointed representatives who have the authority to settle such disputes.
If negotiations under sub-Clause 28.1 do not resolve the matter within 90 days of receipt of a written invitation to negotiate, the parties will attempt to resolve the dispute in good faith through an agreed Alternative Dispute Resolution (“ADR”) procedure.
If the ADR procedure under sub-Clause 28.2 does not resolve the matter within 90 days of the initiation of that procedure, or if either Party will not participate in the ADR procedure, the dispute may be referred to arbitration by either Party.
The seat of the arbitration under sub-Clause 28.3 shall be England and Wales. The arbitration shall be governed by the Arbitration Act 1996 and Rules for Arbitration as agreed between the Parties. In the event that the Parties are unable to agree on the arbitrator(s) or the Rules for Arbitration, either Party may, upon giving written notice to the other Party, apply to the President or Deputy President for the time being of the Chartered Institute of Arbitrators for the appointment of an arbitrator or arbitrators and for any decision on rules that may be required.
Nothing in this Clause 28 shall prohibit either Party or its affiliates from applying to a court for interim injunctive relief.
The decision and outcome of the final method of dispute resolution under this Clause 28 shall be final and binding on both Parties.
Law and Jurisdiction
The Agreement and these Terms and Conditions (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
Subject to the provisions of Clause 28, any dispute, controversy, proceedings or claim between the Parties relating to the Agreement or these Terms and Conditions (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.