1. DEFINITIONS AND INTERPRETATION

1.1  The following terms as used herein shall have the meaning as stated:

“Company” means Bestall & Co Landscape Design Ltd. and Gallery FortyFive, a trading name of Bestall & Co Landscape Design Limited.  We may also use “we”, “us” and refer to “our Company or “the Company”;

“Conditions” means these Conditions of Supply;

“Confidential Information” means any information disclosed by one (the disclosing party) to another (the receiving party) if the disclosing party has notified the receiving party that the information is confidential, or the information could reasonably be supposed to be confidential;

“Contract“ means any contract between the Company and the Customer for the supply of any Goods and/or Services, incorporating these Conditions and the order confirmation;

“Contractor” means the third-party contractor who is to undertake the Works for the Customer;

“Customer” means any person, firm, company or other organisation who is the addressee of the Company’s quotation or acceptance of order issued by the Company;

“Design Service” means the design service to be undertaken by the Company;

“Goods” means any goods agreed in the Contract to be supplied by the Company to the Customer (including any part or parts of them), including any consumable goods together with any durable goods to be so supplied e.g. sculpture, water features etc.

“Input Material” means any documents, plans, drawings, designs or other materials, and any data or other information provided by the Customer to the Company relating to the Goods and/or Services;

“Intellectual Property Rights” means 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;

“Output Material” means any documents, plans, drawings, designs or other materials, and any data or other information provided by the Company to the Customer relating to the Goods and/or Services;

“Project Monitoring Service” means the monitoring of the Works by the Company;

“Services” means any services agreed in the Contract to be performed by the Company for the Customer (including any part or parts of them);

“Site” means the premises at which the delivery of the Goods and/or the performance of services shall take place, including the Customer’s residence;

“Supplies” means the Goods and/or the Services, depending on the context;

“Works” means any works to be undertaken at the Site by a Contractor in order to implement a product or service purchased from us;

1.2  A reference to a Condition is to a clause of these Conditions. Clause headings shall not affect the interpretation of these Conditions.

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

1.4  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.

1.5  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 those terms.

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

2.   Application of Conditions

2.1  All quotations are made and all orders are accepted by the Company subject only to these Conditions, which shall prevail notwithstanding any other terms and conditions which the Customer shall bring to the Company’s notice.

2.2 Any quotation is given on the basis that no Contract shall come into existence until the Company accepts the Customer’s order in accordance with the provisions of Condition 2.3. Any quotation is valid for a period of 30 days only from its date, provided that the Company has not previously withdrawn it.

2.3  The placing of an order following any quotation or other indication of price and delivery shall not be binding on the Company unless and until accepted by the Company in writing.

2.4  The Company reserves the right to amend any accidental error or omission on quotations, order acknowledgments or invoices without any liability on the part of the Company.

2.5  Any descriptions, technical data and illustrations contained in any Company publications are published for information only and shall not be incorporated into the Contract.

2.6  No variation to these Conditions shall be binding except by specific written agreement of the Company. The Company’s employees or agents are not authorised to make any representations concerning the Supplies or the Contract unless confirmed by the Company in writing. In entering into the Contract the Customer acknowledges that it does not rely on, and waives any claim for breach of any such representations which are not so confirmed.

2.7  The Customer shall ensure that the terms of its order and any Input Material and/or any applicable specification are complete and accurate. The Customer must ensure that the specification conforms to their specific requirements and intended usage before confirming an order as goods will be delivered as described on the order.

2.8  Subject to Conditions 2.13-2.21 below, no order of the Customer may be cancelled, deferred, altered or varied by the Customer, except with the agreement in writing of the Company and on terms that the Customer shall indemnify the Company in full against all loss (including loss of profit), costs, damages, charges and expenses incurred by the Company as a result of cancellation, deferment, alteration or variation.

2.9  The Company has no obligation to accept any variation to the Contract requested by the Customer, whether by addition, substitution or omission (or, without limitation, to the Goods/and or Services to be provided under the Contract) and no such request shall be deemed to be accepted in the absence of the Company’s written agreement to the variation. Payment for any variation which has been agreed in writing by the Company pursuant to this Condition 2.9 shall be made in accordance with the provisions of Condition 7.

2.10  Output Material issued free of charge includes mark-up drawings of draft quality only and does not include any tracing or copies, for which an additional charge shall be payable.

2.11  Subject to the provisions of Condition 9.1(b), the Customer shall be solely responsible for ensuring the suitability of the Goods for any specific purpose and also for ascertaining the compatibility of the Goods with any other goods.

2.12  The Customer shall ensure that any specification submitted by the Customer does not contravene any applicable safety or other statutory or regulatory requirement.

2.13  Without prejudice to the provisions of Condition 2.8, Conditions 2.13-2.22 shall apply if and only if the Customer enters into a Contract with the Company as a consumer – that is, as an individual acting wholly or mainly outside the Customer’s trade, business, craft or profession – where the Contract is a distance contract or off-premises contract within the meaning of the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (the ‘Regulations’).

2.14  Under the Regulations, the Customer may cancel a Contract for the purchase of Goods (without giving any reason for cancellation) at any time within the period:

(a)    beginning upon the submission of the Customer’s order; and

(b)   ending at the end of 14 days after the day on which the Goods come into the Customer’s physical possession or the physical possession of a person identified by the Customer to take possession of them (or, if the Contract is for delivery of multiple Goods, lots or pieces of something, 14 days after the day on which the last of those Goods, lots or pieces comes into the Customer’s physical possession or the physical possession of a person identified by the Customer to take possession of them).

2.15  The cancellation right described in Condition 2.14 does not apply to any Goods which are made to the Customer’s specification (including all sculptures and water features), or to any perishable goods (such as plants).

2.16  In order to cancel a Contract on the basis described in Condition 2.14, the Customer must inform the Company of the Customer’s decision to cancel. The Customer may inform the Company by means of any clear statement setting out the decision. To meet the cancellation deadline, it is sufficient for the Customer to send the Customer’s communication concerning the exercise of the right to cancel before the cancellation period has expired.

2.17  The Customer must arrange for the Goods to be returned to the Company. The Customer must comply with the Customer’s obligations referred to in this Condition 2.17 without undue delay and in any event not later than 14 days after the day on which the Customer inform the Company of the Customer’s decision to cancel the Contract. The Customer must pay the direct cost of returning the Goods.

2.18  If the Customer cancels a Contract on the basis described in Condition 2.14, the Customer will receive a full refund of the amount the Customer paid to the Company in respect of the order, including the cost of delivery to the Customer.

2.19  Under the Regulations, the Customer may also cancel a Contract for the purchase of Services (without giving any reason for cancellation) at any time within the period:

• beginning upon the submission of the Customer’s order; and

• ending at the end of 14 days after the day on which the Contract is entered into.

2.20  The procedure for cancelling a Contract for the purchase of Services is identical to the procedure set out in Condition 2.16 and if the Customer cancels a Contract on the basis described in Condition 2.16, the Customer will receive a full refund of the amount the Customer paid to the Company in respect of the order.

2.21  However, the Customer agrees that the Company may begin the provision of the Services before the expiry of the period referred to in Condition 2.19 and the Customer acknowledges that if the Company does begin to provide the Services before the end of the period referred to in Condition 2.19, then the Customer will lose the right to cancel referred to in Condition 2.19.

2.22 Goods that are individually made to order, including sculpture and water features, must be paid for in full on order (see invoices for payment date and information) before a piece is created to order, and therefore returns, changes and/or cancellations cannot be accepted.

2.23 An order will set out the details specified and agreed by the parties and the relevant price for supply, delivery and positioning of goods (subject to extra charges that may become applicable in accordance with these Terms and Conditions). The Customer shall indicate acceptance of the order by full payment to confirm the order.

3.  Obligations of the parties

3.1   The Company will undertake the Design Service following receipt by the Company of all Input Material requested by the Company. All specifications, figures, sizes and other descriptions in any Output Material are approximations only and should not be relied upon.  This also covers descriptions of goods such as sculptures and water features as these are individually made and therefore there will be variance between pieces - any images/diagrams are for illustrative purposes only, and we also reserve the right to alter or modify the design, paint, finish or technical specifications etc.

3.2    The Company will present a scale plan of the Customer’s original garden and design options to the Customer for the Customer’s comments in the garden Design Service, which comments must be received by the Company within 7 days of submission to the Customer of the scale plan. The Customer’s comments will be relied upon by the Company in producing the Customer’s final design. The Customer must ensure that their comments comprehensively address all aspects of the design and that any errors or omissions in the scale plan are corrected by the Customer, as the Company shall not be liable for any design aspects not so addressed, or for any errors or omissions not so corrected and the Company reserves the right to impose additional charges for any additional work required to rectify the Customer’s final design.

3.3   Where the parties enter into a fixed price Contract on the basis of a package deal, the following will apply:

(a)  the number of meetings to take place between the parties will be stated in the Company’s quotation;

(b)  the Company’s initial Site visit or consultation will be charged at £60.00 per hour plus travel costs if the Site is located more than 20 miles outside Sheffield city centre;

(c)  Site survey and analysis may be undertaken by the Company or subcontracted to an external surveying company;

(d)  any alterations to the plans, other than stated in the package, will be charged for at an hourly rate of £90.00 per hour unless otherwise stated in writing by the Company.

3.4   Where design work is to be charged as a percentage of the build budget, all charges will be relative to the size of the build budget, as detailed in the Company’s quotation.

3.5   The Company will not be responsible for undertaking any construction work, or for the supply of construction materials, or for planting, maintenance or plant replacement.

3.6   Where the Company agrees to source and/or supply any plants, the Company shall not be responsible for:

(a)    the unloading, spreading or placing of any plants at the Site; or

(b)    the application of water to plants or seeds after planting or sowing.

3.7  Planting schemes are subject to the vagaries of plant health at point of purchase and time of planting.  No responsibility can be taken by the Company for plants recommended by the Company which do not subsequently thrive.  When planting large trees or shrubs near to buildings the Customer is solely responsible for checking that those plants do not threaten the foundations of nearby buildings.

3.8   The Contractor shall be responsible for undertaking the Works and the Company shall have no liability therefore. The recommendation of any Contractor by the Company to the Customer does not imply any approval of the Contractor by the Company. The Customer understands that the Contractor is not the Company’s subcontractor and that the Customer will be contracting with the Contractor directly in engaging the Contractor to undertake the Works. In this respect, the Customer acknowledges:

(a)  that all quotations and invoices will emanate from the Contractor;

(b)  that the Customer will be subject to the Contractor’s own terms and conditions (if any); and

(c)  notwithstanding that all drawings are to scale, because the reproduction process can sometimes cause slight distortions, the Contractor must be required to visit the Site in order to confirm the precise nature and extent of the Works before proceeding therewith.

3.9  Where the Company agrees to undertake the Project Monitoring Service, the Customer acknowledges that the Company will not be responsible for managing the Works (whereby the Contractor would be sub-contracted to undertake the Works by the Company), but shall instead be simply responsible for monitoring the progress of the Works.

3.10  The Customer shall:

(a)   provide the Company with all information, co-operation and support that may be required to enable the Company to carry out its obligations to the Customer;

• allow full, complete, uninterrupted and unimpeded access to the Site in order to enable the Company to undertake the Project Monitoring Service;

• take all steps to ensure the health and safety of the personnel of the Company whilst they are in attendance at the Site in connection with the Project Monitoring Service and shall be solely responsible for ensuring the safety of any and all other persons who are or may be present at the Site during the Project Monitoring Service, including restricting access to those areas of the Site where the Project Monitoring Service is to be undertaken to those individuals engaged in undertaking the Project Monitoring Service or providing assistance to those so engaged and also to the Contractor; and

• where the Customer is a business customer rather than a consumer, effect and maintain appropriate insurance at the Site on an all risks basis and in an adequate amount. The Customer shall be responsible for the works and installation of the base for Gallery FortyFive sculptures and water features (we accept no responsibility or liability for any works completed by other contractors for the installation).

3.11  Any additional costs caused by any delay in the performance of the Project Monitoring Service, or any suspension of performance, at the Site (for reasons beyond the control of the Company) shall be treated as a variation to the Customer’s original order and the Customer shall be liable for any such additional costs.

3.12   The Customer shall not, without the prior written consent of the Company, at any time from the date of the Contract to the expiry of 12 months after the last date of supply of the Services or termination of the Contract, as applicable, solicit or entice away from the Company 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 the Company in the provision of the Services.

3.13  Any consent given by the Company in accordance with Condition 3.12 shall be subject to the Customer paying to the Company a sum equivalent to 15 % of the then current annual remuneration of the Company’s employee, consultant or subcontractor.

3.14 Pre-ordering, it is the responsibility of the Customer to select a suitable and safe location for goods (including sculptures and water features), and the Customer shall prepare the site and ensure it is safe before delivery (including ensuring that installation has already been completed in line with any specifications provided by the Company).

3.15 Our Company will not be responsible for any work conducted by a third party (including the Customer and/or the Customer’s appointed contractor) to prepare the site or for the installation of sculpture or water features, or ahead of delivery of accessories.

3.16 Should the site and/or location for the installation of goods (including sculptures or water features) not be prepared as specified by our Company, we will be entitled to charge any additional costs required at the standard rates e.g. to cover additional labour, mileage, time and materials etc.

3.17 Should the site not be prepared and installation of sculpture base not already be completed as specified by our Company, and we therefore deem delivery and/or positioning of goods unsuitable and/or unsafe, we will charge for the reasonable costs and expenses incurred in relation to the site visit and/or postpone or cancel the positioning (please note that re-delivery is charged at £500 for sculptures and water features).

3.18 The Customer shall be responsible for ensuring that its own employees and contractors read and follow the instructions and information in any health and safety information that our Company issues prior to our employees being on site.

3.19 If goods are to be for a public space, we must be made aware when the Customer confirms the order as additional time and actions may be needed for the Customer to prepare for this.

3.20 The liability for shipped goods and in the works shall pass onto the Customer on delivery in mainland UK, or on shipping for deliveries outside mainland UK.

4.  Price

4.1  Prices for the Supplies, howsoever given, are based on conditions ruling on the date of their giving and are subject to change. The effective price for the Supplies shall be the price confirmed by the Company in its written notification of acceptance of the Customer’s order pursuant to Condition 2.3.

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

4.3  Unless otherwise stated, the price quoted will be exclusive of Value Added Tax which will be charged at the rate which is applicable at the date of dispatch of the Goods or commencement of performance of the Services.

4.2  Unless otherwise agreed in writing between the Customer and the Company, all prices are given by the Company on an ex works basis and the Customer shall be liable to pay the Company’s charges for transport, packaging and insurance.

4.5  The Contract price is based on normal weekday rates; evening, weekend and bank holiday work will incur extra costs.

4.6  The Contract price does not allow for any retentions being held against the Company.

4.7  The Contract price is based on the assumption that that the Site is free from any conditions, features, hazards or obstructions (including underground hazards or obstructions) which are not discoverable upon visual inspection of the Site. The Company may make an additional charge for any additional work executed by the Company as a result of the disclosure or discovery of any such conditions, features, hazards or obstructions.

5.  Delivery and Performance

5.1  Whilst the Company will use its best endeavours to provide the Supplies and Goods in accordance with the Customer’s requirements, the Company will not be liable for any consequences of any delay in the provision of the Supplies and Goods, howsoever caused.

5.2  Any time or date given by the Company for delivery is intended as an estimate only. No delay or failure in respect of delivery or part delivery shall entitle the Customer to treat the Contract as repudiated. The Goods may be delivered by the Company in advance of any quoted delivery date upon giving notice to the Customer.

5.3  The Company may make partial delivery of any order or deliver any order by instalments and these Conditions shall apply to each. Each delivery shall be deemed to be a separate contract.

5.4  Delivery of the Goods shall be made by the Company delivering the Goods to the Site.

5.5  If delivery involves difficult access to or at the Site and/or the point of access to the Site is located at an unreasonable distance from any feasible vehicular access point, the Company reserves the right to levy an extra delivery charge.

5.6  The Company shall not be liable for any non-delivery of the Goods (even if caused by the Company’s negligence) unless the Customer gives written notice to the Company of the non- delivery within 3 days of the date when the Goods would in the ordinary course of events have been received.

5.7  Any liability of the Company for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata contract rate against any invoice raised for such Goods.

5.8  The Customer will be liable for any additional costs, charges or expenses due to any conditions at the Site being at variance with any conditions perceived by the Company e.g. during the initial Site visit, during any Site survey etc.

5.9  The Company shall not be liable for any loss or damage due to unsatisfactory workmanship undertaken by any other party.

5.10  The responsibility for proper maintenance of the Site lies solely with the Customer. No responsibility can be accepted by the Company for plant, seed, tree or turf losses arising from lack of care or insufficient watering.

5.11 The delivery terms given by us are purely informative and any eventual delay in delivery will not result in any form of compensation, nor in annulment of the contract.  If the delivery is hindered by force majeure or is extremely affected, the Company has the right to adjust the agreement to the circumstances, or to break the contract. The Customer explicitly renounces any right to compensation.

5.12 The Customer needs to provide us with any relevant information that we need to be made aware of prior to delivery of goods e.g. parking restrictions, access considerations (e.g. steps, uneven ground, obstructions etc.) and is responsible for ensuring clear and safe access for our delivery vehicle as any obstructions e.g. parked vehicles may result in re-delivery. It is at the delivery driver’s discretion as to whether conditions are deemed to be safe and suitable for the delivery to be completed.

5.13 Special delivery conditions (delivery on appointment, additional packaging or vehicle etc.) may incur a surcharge - requests must be requested by the Customer when placing an order which then must then be confirmed in writing by our Company.

5.14 We take our responsibility to ensure safety very seriously - our team are equipped with the tools and knowledge to carefully deliver sculpture and water features to site and position onto the base that the Customer is responsible for installing before delivery is scheduled. We can only attach a sculpture to a base that we have supplied and when it has been correctly pre-installed to our specification.

5.15 All our goods are manufactured, packed and transported with care.  Our goods need to be carefully checked upon delivery – if they do not fulfil the standard quality upon delivery, the following guidance needs to be followed:

• Transport damage needs to be reported by the Customer at the time of delivery and the delivery agent’s paperwork must be signed and marked to record the damage.  Complaints on transport damage will not be accepted if this has not been recorded or if the delivery crate/packaging has been discarded.  The Customer also needs to make the Company aware of any damage from delivery within 24 hours of receiving the delivery and include photographs of the damaged goods.

• Product defects must be reported by the Customer to us in writing within 24 hours after reception of the goods.  After this period, complaints can no longer be accepted.

• No claim damages will be entertained without a returned, signed and duly endorsed delivery note.

6.  Intellectual Property Rights, Confidentiality and Data Protection

6.1  Any and all Intellectual Property Rights (howsoever arising), in relation to the Supplies and any Output Material shall at all times vest in and belong solely to the Company.

6.2  The Customer acknowledges the Company’s ownership of any and all Intellectual Property Rights in any Output Material and in any Goods and Services provided to the Customer pursuant to the Contract and agrees not to contest the Company’s ownership or use of any such Intellectual Property Rights. Subject to the prior payment to the Company of all costs, charges and expenses under the Contract, the Company grants the Customer a non-exclusive, revocable, non-transferable and personal licence to use the Output Material to implement the Design Service at the Site (or at that part of the Site for which the Output Material was prepared), but for no other purpose. The Customer further acknowledges that, without limitation, any and all Intellectual Property Rights developed by the Company in performing any Services or providing any Goods shall become vested and shall vest in the Company absolutely and shall also be subject to the other provisions of this Condition 6.2.

6.3  If:

(a) the Goods are to be designed, built or configured or any process is to be applied to the Goods by the Company in accordance with any specification or Input Material submitted by the Customer; or

(b)  the Services are to be performed in accordance with any specification or Input Material submitted by the Customer;  then

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

6.4  The Customer and the Company agree that in the course of the Company providing Goods and Services to the Customer, the parties may disclose to each other certain Confidential Information. The Customer and the Company agree that each party will maintain the Confidential Information’s confidentiality and not disseminate it to any third party without the disclosing party’s prior written consent, save that this obligation shall not apply to any Confidential Information that either party has a duty (whether legal or otherwise) to communicate or that is in the public domain or is already in the receiving party’s possession through no fault of the receiving party. Neither party shall use any Confidential Information for any purpose other than the discharge of its obligations under the Contract.

6.5  The Customer acknowledges and agrees that any personal data contained in any information provided to the Company may be processed by and on behalf of the Company in connection with the provision of any Goods and Supplies.

6.6  The Company shall be allowed to refer to the Customer in any publicity material, provided that the Company receives the Customer’s written consent in advance.

6.7 The Company has the right to use any images of goods and services the Company has supplied on its website, social media platforms and publications, unless the Customer has advised otherwise in writing.

7.  Payment

7.1 The price for the Supplies shall be paid by the Customer to the Company in accordance with the requirements set out in the Company’s written notification of acceptance of the Customer’s order pursuant to Condition 2.3 (including any requirement to make a non-refundable deposit payment and non-refundable full payment for orders that are customised and created to order e.g. sculptures and water features).

7.2 The time of payment of the price shall be of the essence of the Contract.

7.3 Without prejudice to Condition 7.1, any stage payments which are to be made under the Contract shall be made at the times and in the amounts stipulated

7.4 All payments due to the Company shall be made without any deduction, withholding or set-off.

7.5 Failure by the Customer to pay any invoice by its due date shall entitle the Company to:

(a)  at its option, charge interest at the rate of five percent (5%) per annum above our bank’s base lending rate from time to time calculated on a daily basis (whether before or after any judgment) until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest);

(b)  charge the Customer with any costs incurred by the Company in the course of collecting outstanding monies due to the Company from the Customer;

(c)  suspend any warranty for the Supplies or any other goods or services supplied by the Company to the Customer, whether or not they have been paid for;

(d)  set off any amount owed by the Company to the Customer against any amount owed by the Customer to the Company on any account whatsoever;

(e)   suspend or cancel any future delivery of Goods and/or performance of Services; and

(f)   cancel any discount or price reduction (if any) offered to the Customer.

7.6   The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.

7.7   All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.

7.8 In case of complete or partial non-payment at the due date, the order will not be placed – this means that bespoke goods will not be made until full payment has been made and goods that are already available remain the property of the Company as long as the supplied goods are not paid for.

7.9 Non-payment of an invoice at the due date implies that all due invoices are on call. Any kind of complaint cannot be called upon by the Customer as a reason for suspension or postponement of payment.

7.10 The Customer must not sell the goods to a third party nor to apply them as security as long as they are the property of the Company.

7.11 In all cases, our liability is restricted to the purchase price of the supplied goods. The parties explicitly agree that any other damage is excluded.

7.12 For order and deliveries outside mainland UK, the Customer is responsible for payment of all costs relating to bank charges for international payments, packaging, shipping and insurance, and for payment of all taxes, and any other monies or duties due for the importation of goods and services.

8.  Force Majeure

The Company reserves the right to defer the date of provision of the Supplies, or to cancel the Contract or reduce the volume of the Supplies ordered by the Customer (without liability to the Customer) if it is prevented from, or delayed in, the carrying on of its business (wholly or in part) due to circumstances beyond the reasonable control of the Company including acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers, or adverse weather conditions, or any inability or delay in obtaining supplies of adequate or suitable materials, or the failure or demise of any source of supply.

9.  Warranty

9.1  The Company will endeavour to transfer to the Customer the benefit of any manufacturer’s warranty or guarantee given to the Company and the Company warrants (subject to the other provisions of these Conditions) 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 Customer has made it expressly known to the Company in the Customer’s order that the Goods shall be suitable for a particular purpose and the Company has expressly stated in its written acceptance of the Customer’s order 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.

9.2  The Company’s liability pursuant to Condition 9.1 shall be limited:

(a)  for Goods, to the replacement of any part of the Goods found to be defective and notified to the Company within the period set forth in Condition 9.3; and

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

9.3 Any defect or deficiency in, or shortage or failure to correspond to specification of the Supplies shall be notified to the Company within 7 days from delivery of the Goods or performance of the Services; otherwise, the Supplies shall be deemed to be satisfactory and a charge will be made for additional rectification work.

9.4  The Company shall not be liable for any breach of any warranty under this Condition 9, if:

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

(b) the Customer modifies, adjusts, alters or repairs the Goods without the prior written consent of the Company;

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

(d) the defect arises from any specification or Input Material submitted by the Customer, or from fair wear and tear, 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 the Company;

(e) the defect relates to any work external to the Goods, or arises by virtue of any act or omission of the Customer relating to the use of the Goods, or by subjecting the Goods to any unusual physical or other stress or adverse environmental conditions;

(f)  the full price for the Supplies has not been paid by the time for payment stipulated in Condition 7.1, or in accordance with Condition 7.3; or

(g)  the defect is of a type specifically excluded by the Company by notice in writing.

9.5  If upon investigation, the Company reasonably determines that any defect or deficiency in, or malfunction or failure to correspond to specification of the Goods and/or Services is a result of, or is excused by, any of the matters referred to in Condition 9.4, the Customer shall be liable for all costs reasonably incurred by the Company in investigating the same and determining the cause.

9.6 Exemptions for the guarantee include:

• Any damage arising from insufficient care, unreasonable or inappropriate use, vandalism, or from non-compliance with the advice for maintenance and installation

• Natural fading, evolution and aging processes of the materials

• Any modifications made to the goods or its location also voids the guarantee

9.7 Any repair or maintenance that is required by our Company outside the warranty for the goods will be charged at the standard labour rate, plus materials and mileage costs etc.

10.  Exclusion of liability 

10.1  Other than as provided in Condition 9 above and in Section 12 of the Sale of Goods Act 1979 and save for the conditions implied by section 2 of the Supply of Goods and Services Act 1982, all conditions, warranties and liabilities whatsoever whether express or implied, statutory or otherwise, are hereby expressly excluded and the Company shall be under no liability whatsoever for any loss or damage of whatsoever kind, howsoever caused or arising, including but without being limited to any direct, indirect or consequential loss or damage, lost profits, loss of use or other economic loss, provided that nothing herein contained shall be construed so as to exclude or limit the liability of the Company:

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

(b)  for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or

(c)  for fraud or fraudulent misrepresentation.

10.2  The Company’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.

10.3  The Customer shall hold the Company harmless and keep the Company fully and promptly indemnified against all direct, indirect or consequential liabilities (all three of which terms include loss of profit, loss of business, depletion of goodwill and like loss), loss, damages, injury, costs and expenses (including legal and other professional fees and expenses) awarded against or incurred or paid by the Company as a result of or in connection with any claim made by or against the Company in respect of any liability, loss, damage, injury, cost or expense whatsoever, howsoever and to whomsoever occurring, to the extent that such liability, loss, damage, injury, cost or expense arises directly or indirectly from the Customer’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to the Company confirming such costs, charges and losses to the Customer in writing.

10.4 Our Company ensures bases are provided as appropriate for stability and safety of sculptures, however, it is the responsibility of the Customer to ensure that the surface and location chosen for the sculpture and base are suitable before placing an order, and also for the correct installation of the sculpture base before delivery. The Company are in no way responsible for installation of any goods, including sculpture and water features, unless stated otherwise.

10.5 The Company will comply with our obligations and responsibilities relating to health and safety and the relevant legislation.

10.6 The Company shall not be liable for any damage to goods that have been used in any other way than it was intended, or for any damage, injury or loss caused by anyone other than employees from our Company.

11.  Changes

The Company reserves the right without prior approval from or notice to the Customer to make changes to the Supplies or their specification in order to meet any statutory or other requirement, or which do not materially affect the nature or quality of the Supplies. Without limitation, the Company shall not be held responsible for minor departures from the Contract specification made necessary by Site conditions or unforeseen circumstances.

12.  Risk and Title

12.1  All Goods shall be at the sole risk of the Customer upon delivery to the Site and the Company accepts no liability for their loss or damage after their delivery to the Site, howsoever caused.

12.2  All Goods remain the property of the Company until fully paid for by the Customer. Goods unpaid for may be removed from the Site by the Company who shall have the right of access to the Site for that purpose.

13.  Termination 

13.1  Notwithstanding anything else contained in these Conditions, the Contract may be terminated by the Company with immediate effect upon written notice to the Customer if:

(a)   the Customer commits any breach of its obligations under the Contract and fails to remedy the same within 14 days of receipt of a written notice from the Company specifying the breach and requiring it to be remedied; or

(b)   any payment due under the Contract is more than 7 days in arrears; or

(c)   the Customer goes into liquidation, becomes bankrupt, makes a voluntary arrangement with its creditors or has a receiver or administrator appointed.

13.2   Termination of the Contract (howsoever occasioned) shall not affect any accrued rights or liabilities of either party hereunder or at law, nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or to continue in force on or after such termination

13.3   The right to terminate the Contract given by this Condition 13 shall not prejudice any other right or remedy of the Company against the Customer in respect of the breach concerned, or any other breach.

13.4   Upon termination of the Contract all obligations of the Company thereunder shall cease.

14.  General

14.1  No forbearance or indulgence granted by the Company to the Customer shall in any way limit the rights of the Company under these Conditions.

14.2  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.

14.3  The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company. The Company shall be entitled at its discretion to perform any of the obligations assumed by it and to exercise any of its rights granted to it under the Contract through any other company or entity.

14.4   Neither the Company nor the Customer intends 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.

14.5   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.

14.6   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.

14.7    Any dispute arising under or in connection with the Contract shall be referred to arbitration by a single arbitrator appointed by agreement or (in default) nominated on the application by either party to the President for the time being of the Law Society whose decision as to the type, qualifications and experience of such arbitrator shall be final and binding on the parties.  The costs of the arbitrator shall be borne by the parties as he directs and his decision on the issue in dispute shall be final.

14.8    These Conditions shall be subject to and construed under English Law and the parties hereby submit to the exclusive jurisdiction of the courts in England for that purpose.

GALLERY FORTYFIVE | Gallery FortyFive is a trading name of Bestall & Co Landscape Design Ltd. - registered company number 07441877.