Bowland Tree Consultancy Ltd. Terms and Conditions
1.1 Unless otherwise defined in these terms and conditions (‘Terms’), the following definitions apply in this Contract:
Background: the circumstances relating to the requirement for the Services as detailed in the Quotation;
BTC: means Bowland Tree Consultancy Limited a company registered in England with number 07080820 and whose registered address is at Unit 2, 11 Cannon Street, Preston, Lancashire, England, PR1 3NR. Email address email@example.com .
Business Day: means any day which is not a Saturday, Sunday or public holiday in England;
Confidential Information: information in whatever form relating to a party’s business, clients, products, affairs and finances for the time being confidential (whether or not marked as such) to it including trade secrets, technical data and know-how relating to it or any of its suppliers, clients, shareholders, management or business contacts;
Contract: means the legally binding contract between the Customer and BTC, comprising of the Quotation, these Terms and any other documents specifically referred to therein;
Customer: means the business with whom the Contract is entered into and to whom the Quotation is issued.
DP Legislation: any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 or any successor legislation and (for so long as and to the extent that the law of the EU has legal effect in the UK) the General Data Protection Regulation and any other directly applicable regulation relating to privacy and data controller, data processor, data subject, personal data and process shall have the meanings given to them therein;
Documentation: all records, reports, documents, papers, drawings, designs, transparencies, photos, graphics, logos, typographical arrangements, software, and all other data, information and materials in whatever form, including but not limited to hard copy and electronic form, prepared by BTC in the provision of the Services;
IPRs: patents, Inventions, copyright and moral rights, trade marks, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use and protect the confidentiality of confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all similar, related or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
Invention: any invention, idea, development, improvement or innovation made by BTC in providing the Services;
Loss: means any actions, awards, charges, claims, costs, damages, demands, expenses, fees, fines, liabilities, losses, penalties and proceedings;
Price: means the price for the Services as set out within the Quotation plus any applicable additional charges;
Quotation: means BTC’s written quotation whether taking the form of the document headed as such or otherwise supplied by BTC to the Customer in writing;
Services: the arboricultural services provided by BTC in a consultancy capacity for the Customer as more particularly detailed within the Quotation; and
Site: means the site which the Customer has the right to access (whether as owner, tenant or in any other capacity entitling it to access the site) and which BTC may need to access for the purposes of performing its obligations under this Contract.
1.2 Reference to any Act, statutory instrument or other instrument shall include references to such instrument as amended, re-enacted or consolidated from time to time and also to any subordinate instrument made under it.
1.3 All agreements on the part of either of the parties which comprise more than one person or entity shall be joint and several.
1.4 The Quotation is an offer by BTC to the Customer to supply the Services in accordance with these Terms and shall remain valid for 60 days. For the avoidance of doubt and unless otherwise agreed if the Customer does not accept the Quotation within that period, the Quotation shall be deemed to have expired. In the case of there being any inconsistency between the Quotation and these Terms, the Quotation shall be deemed to take precedence.
2. Duties and Obligations
2.1 The Customer confirms that the Background is correct and that it requires BTC to carry out the Services on this basis.
2.2 BTC shall provide the Services with reasonable care, skill and ability, in accordance with the codes of conduct and ethics for the time being in force of the Arboricultural Association and the Institute of Chartered Foresters and promptly give to the Customer all such information as it may reasonably require in connection with matters relating to the provision of the Services.
2.3 Whilst BTC may provide and agree to certain timescales, the same shall only be deemed to be projections and for the avoidance of doubt time for BTC’s compliance with any timescales shall not be of the essence.
2.4 The Customer shall:
a) co-operate with BTC in all respects and provide it with such information and assistance as it shall reasonably require;
b) provide to BTC in a timely manner and at no charge with all documents, information, items and materials in any form (whether or not owned by the Customer) reasonably required by BTC in connection with the Services and warrants that they are accurate and complete in all material respects and do not breach any third party’s IPRs;
c) obtain and maintain any and all necessary licences and consents and comply with all relevant legislation as required to enable BTC to provide the Services in accordance with this agreement; and
d) provide BTC and its personnel with any and all safe and unencumbered access to, movement around and egress from the Site as it so requires and in doing so the Customer warrants that it is entitled to provide such access.
2.5 BTC shall have no liability for any failure to provide or delay in providing the Services in accordance with this Contract to the extent such failure or delay results from the Customer’s failure to comply with any of its obligations.
a) The Customer agrees and acknowledges that the information and/or any advice contained within the Services is only correct as at the date on which it is provided and until the earlier of 12 months thereafter or the date on which the circumstances pertaining to the Background are changed.
3. Price and Payment – Special Attention is Drawn to this Clause
3.1 The Price of the Services shall be that stated in the Quotation save to the extent that it is adjusted in any way in accordance with these Terms.
3.2 In the event that the:
a) Customer requires any services to be carried out which vary or are beyond the scope of the Services (‘Variation’); or
b) acts or omissions of the Customer result in additional work being carried out by BTC in the course of the Services,
the Customer shall incur additional charges, chargeable at BTC’s hourly rate specified in the Quotation unless the parties otherwise agreed a varied Price. Where the parties cannot agree upon a varied Price, the Customer may only terminate the Contract to the extent of the adjustment with the remaining (pre-existing and unaffected) parts of this Contract remaining in full force and effect.
3.3 The Customer shall reimburse all reasonable expenses (including disbursements) properly and necessarily incurred by BTC, at cost + 10%, or at the rate specifically outlined in the Quotation. Such expenses shall for the avoidance of doubt include but not be limited to mileage, accommodation and subsistence.
3.4 Unless otherwise agreed between the parties, BTC shall invoice the Customer following performance of the Services and this shall become due and payable within 28 days. Time for payment shall be of the essence and all monies due to BTC shall be paid in full without any set-off, counterclaim, withholding or other deduction.
3.5 Sums payable under the Contract are, unless otherwise stated, exclusive of VAT, which is chargeable additionally. For the avoidance of doubt, if the rate of VAT changes between the date on which the Contract is formed and the date of the invoice, BTC will charge VAT at the new rate.
3.6 In the event that the Customer wishes to query or dispute any invoice then it must do so within 2 Business days of the date of the invoice, otherwise it shall be deemed to have been accepted as correct and payable to BTC. In the event of any dispute being raised by the Customer about an invoice then this is without prejudice to the Customer’s obligation to pay such invoice when it falls due. In circumstances where the Customer pays an invoice which it queries or disputes and BTC agrees that such query or dispute was justified then BTC shall issue a credit to the Customer in respect of such payment as soon as reasonably practicable following reaching such agreement.
3.7 If the Customer fails to pay any sums due to BTC on time, without prejudice to any other rights it may have, BTC may:
a) immediately cease to deliver the Services to the Customer until such time as those sums are paid;
b) revoke any license granted to the Customer to use Documentation prepared or produced for the purposes of Contract; and
c) charge interest on any overdue sum in accordance with the Late Payment of Commercial Debts (Interest) Act 1998.
4. Confidential Information
4.1 Each party acknowledges that it will have access to the Confidential Information of the other party and shall not (except in the proper course of its duties under this Contract) at any time use or disclose to any third party the Confidential Information of the other party. This restriction does not apply to:
a) any use or disclosure authorised by the party to which the Confidential Information belongs or as otherwise required by law; or
b) any information which is already in, or comes into, the public domain otherwise than through unauthorised disclosure.
5. Data Protection
5.1 BTC and the Customer acknowledge that for the purposes of the DP Legislation, in the course of and for the purposes of providing the Services, the Customer is the data controller and BTC is the data processor and shall comply with their respective obligations under the DP Legislation. To the extent that BTC can be classified as data controller it shall comply with its obligations as such under the DP Legislation.
5.3 The Customer warrants that the applicable data subject has provided its express consent to any and all of its personal data being disclosed or otherwise provided to BTC or made available for BTC to process.
5.4 BTC shall ensure that it has in place appropriate technical or organisational measures and which by virtue of entering into this Contract shall be deemed to have been reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures. Such measures may include, where appropriate pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services and ensuring that availability of and access to personal data can be restored in a timely manner after an incident.
6. Intellectual Property
6.1 Save that nothing in this clause shall vest in BTC any IPRs which vested in the Customer prior to entering this Contract, any and all IPRs in any Services and the Documentation prepared or produced for the Customer by or on behalf of BTC arising out of or in connection with this Contract shall belong to BTC absolutely and any such Documentation shall be or remain the sole property of BTC.
6.2 The Customer shall be entitled to use as a licensee any such Documentation as are referred to in clause 6.1 above solely in connection with the Services and for the purposes for which they were produced but shall not be entitled to copy any such Documentation or use them for any other commercial purpose unless agreed otherwise in writing between the parties.
7. Liability and Indemnity – Special Attention is Drawn to this Clause
7.1 The Customer shall within 2 Business Days of becoming aware of any event which may lead to it or any third party suffering Loss under this Contract, notify BTC in writing of the potential Loss that may result and the likely estimated Loss such that BTC may take the requisite steps in order to mitigate its potential liability.
7.2 BTC shall not be liable to the Customer whether in contract, tort (including negligence), breach of statutory duty, misrepresentation or otherwise for any Loss whatsoever incurred or suffered by the Customer:
a) where it fails to notify BTC in accordance with clause 7.1;
b) of an indirect, special or consequential nature;
c) which is purely economic loss or other loss of turnover, profits, business, contract, data, reputation or goodwill;
d) for a figure in excess of the total sum of payments received by BTC from the Customer under this Contract during the preceding 12-month period.
7.3 Notwithstanding the content of the Documentation, BTC shall not be liable to the Customer where and to the extent that:
a) either the Customer or a third party acting for it or on its behalf:
(i) has approved or inspected the Site or any works or materials referred to in the Documentation;
(ii) omitted to or delayed in approving or inspecting the Site or any works or materials referred to in the Documentation, where under an obligation to do so, whether at law or otherwise by virtue of a contractual duty to do so; or
b) an event beyond its reasonable control has taken place leading to the circumstances and/or conditions on which the Documentation was based changing, including but not limited to where any party other than BTC (or a third party acting under its control) has carried out any works at the Site;
c) the Customer (or any third party to whom the Documentation has been disclosed by the Customer) has disregarded its content or otherwise acted in contravention of any recommendations made by BTC.
7.4 The Customer shall indemnify, keep indemnified and hold harmless BTC from and against any and all Loss, including that of an indirect, special or consequential nature and any economic loss, loss of turnover, profits, business, contract, data, reputation or goodwill whether arising in contract, tort (including negligence), breach of statutory duty, misrepresentation or otherwise arising out of or in connection with the performance of this Contract and any breach of the Contract or its statutory obligations (including the DP Legislation) by the Customer.
7.5 Nothing in these Terms shall limit or exclude BTC’s liability for death or personal injury caused by its negligence, fraud or fraudulent misrepresentation or any other matter for which it would be illegal to do so.
8.1 Either party shall be entitled to immediately terminate or suspend this Contract forthwith by notice in writing to the other provided that where done so by the Customer it shall be liable to pay the Price in addition to any Expenses and Additional Fees incurred up to and including that date.
8.2 In any circumstances in which BTC could terminate, it may at its discretion suspend the provision of the Services without prejudice to its right to terminate and without any liability to the Customer. In the event of BTC exercising its right to suspend, any agreed timescales and deadlines shall be deemed extended by such period of suspension.
8.3 In the event of this Contract howsoever arising:
a) any accrued rights, remedies, obligations and liabilities shall not be affected, including the right to claim damages in respect of any breach of this Contract which existed at or before the date of termination; and
b) BTC may issue an invoice in respect of any work undertaken under this Contract for which it has not already; and
c) the Customer shall immediately pay to BTC all arrears of payments and any other sums due under these Terms.
8.4 Those terms which by implication are to remain in full force and effect following the termination of this Contract shall continue to have such effect.
9.1 Any demand, notice, request or other document produced in relation to this Contract given shall be in writing and may be served: personally, by recorded mail to the address specified in this Contract or such other address as may be notified; by e-mail, where valid e-mail addresses have been set out in the Contract.
9.2 A notice shall be deemed to have been served: if it was served in person, at the time of service; if it was sent by recorded mail, at the time at which delivery is recorded as taking place; or if it was e-mailed, within 2 Business Days.
10.1 Neither Party shall have any liability under or be deemed to be in breach of the Contract for any delays or failures in performance of the Contract which result from circumstances beyond the reasonable control of the Party affected. Each Party shall promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than two months, either Party may terminate the Contract by written notice to the other Party.
10.2 Nothing in this Contract shall be deemed to constitute a partnership or joint venture between the parties, nor constitute either party becoming in any way the agent of the other party for any purpose.
10.3 The relationship of BTC to the Customer will be that of independent contractor and nothing in this Contract shall render it an employee, worker, agent or partner of the Customer and BTC shall not hold itself out as such.
10.4 The failure or delay of BTC at any time or times to require performance of any provision hereof shall not affect BTC’s right to enforce such provision at a later time. No waiver by BTC of any conditions or the breach of any term, covenant, representation or warranty contained in this Contract in any one or more instances shall be deemed to be or construed as a further or continuing waiver of any such condition or breach or a waiver of any other condition or be deemed to be or construed as a waiver of the breach of any other term, covenant, representation or warranty in this Contract.
10.5 In the event that any provision of this Contract is declared by any judicial or other competent authority to be void, voidable, illegal or otherwise unenforceable, without prejudice to the validity or enforceability of the remainder of the Contract, that provision or part provision shall, to the extent required, be modified or deleted to give full effect to the intentions of the parties or if not agreeable, to the extent necessary to give the provision or part provision legal, valid or unenforceable.
10.6 This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
10.7 Each party acknowledges that in entering into this Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Contract.
10.8 No variation of this Contract or of any of the documents referred to in it shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
10.9 A person who is not a party to this Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract. The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this Contract are not subject to the consent of any other person.
11.1 Where the parties dispute anything arising out of or in connection with the Contract, the matter shall be referred to an independent arbitrator appointment at the agreement of both parties (or in default of an agreement, nominated by the Chairman of the Professional Committee of the Arboricultural Association).
11.2 The parties agree that, save in the case of manifest error, the decision of the expert appointed under this clause shall be binding and that, unless otherwise determined by the expert, the losing party shall be required to pay the resulting costs.
12. Governing Law and Jurisdiction
12.1 Subject to clause 11, this Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
12.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claim).