This Gardening Contract is in three parts: Terms of Business, a Schedule containing job specific details and a Form of Agreement. This arrangement allows a gardening company to provide the Terms of Business separately from the Form of Agreement when it is tendering for work. Once the details have been agreed they can be set out in the Schedule and the one page Form of Agreement signed by each party and attached to the Terms of Business and Schedule.
This Contract is suitable for all types of regular gardening and related horticultural services. By way of example, two types of garden maintenance are set out in the Schedule: first for the client who requires seasonal planting of planters, window boxes and tubs where the scope of services is necessarily limited, and secondly where the client requires grounds to be maintained throughout the year. Provision is made under clause 4.1 and the Schedule for ‘Additional Services’ to be provided for the second type of gardening requirement: e.g. removal/replacement of dead or diseased shrubs or trees.
SPECIFIC COMMENTS ON TERMS OF BUSINESS
1. DEFINITIONS AND INTERPRETATION
This contains a few definitions that are in a format that does not have to be changed depending on specific project details.
Clause 1.2 makes it clear that these terms are the only ones that apply to the contract and anything put forward by the client is excluded.
2. PROVISION OF SERVICES
This clause sets out the basic obligation of the firm to provide the services that are set out in the Schedule. It is the responsibility of the firm to provide all equipment and materials and to remove them from the site at the end of each visit.
The wording assumes a 12 month contract which will automatically be renewed unless terminated. Any different period should be set out in the Form of Agreement.
4. FEES & PAYMENT
This clause contains the default position for invoicing and payment. Any special terms should be put into the Schedule. Clause 4.2 required the client to query invoices within 7 days and 4.3 provides for interest if payment is late. The law referred to here allows a firm to claim interest at the rate fixed by the government and which at present is 8% above the Bank of England Base Rate. An alternative is to have a rate fixed in the contract – e.g. 3% above the base rate of Barclays Bank plc.
Price increases are dealt with in Clause 4.5. In practice, it is going to be necessary to obtain the client’s agreement to any increase in charges before they are implemented.
5. FIRM’S OBLIGATIONS
This clause contains some general obligations on the firm, in particular that it already knows or has obtained references from its staff as well as ensuring that they are reliable.
The firm is required to maintain adequate Public Liability Insurance to provide the client with a measure of protection against loss and injury caused by the negligence of the firm (see also the limitation of the firm’s liability to the extent of that insurance cover at clause 7 & 14).
At clause 5.3 in square brackets the firm is required to provide at least one member of staff who is qualified to at least NVQ Level 2. If this requirement is inappropriate please delete the provision.
Generally, Clause 5 is designed to give some assurance to the client that the firm and its staff can be relied on.
6. CLIENT’S OBLIGATIONS
The clause deals with a number of practical matters designed to ensure that the firm’s staff can get access at the agreed times and they know how to deal with the fire alarm and any other security systems. In addition, the client is required specifically to ensure compliance with health and safety requirements.
7. LOSS OF PROPERTY
This is designed to ensure that the firm’s liability for loss or damage to client property only arises if there is proven default on the part of its staff. The firm should maintain a public liability insurance policy to protect it against this risk.
8. CLIENT COMPLAINTS
It is sensible to have a time limit within which clients are expected to raise any complaints. While this clause contains appropriate wording, if the client does not raise a complaint within 7 calendar days, the firm could still have a potential claim against it.
9. SUSPENSION OF SERVICES
If the client does not pay or commits some other serious breach of the contract, this clause gives the firm the option to suspend the contract rather than terminate it altogether. If you decide to exercise your right to suspend, you should give notice to the client setting out the reasons for suspension.
Under clause 10.1 either side can terminate on 30 days’ notice once the initial period (of 12 months) has finished. If you want the contract to run from year to year, then the wording would need to be change or alternative arrangements set out in the Schedule.
Clause 10.2 allows either side to give notice to terminate if the other party becomes bankrupt or commits a breach of contract. Under clause 10.3 the client has an obligation to pay compensation under certain circumstances.
11. FORCE MAJEURE
Circumstances beyond the control of the firm would allow the firm to avoid its obligations under the Contract. Whether a client would accept that shortage of staff is a “force majeure” event is a matter of conjecture, but on the face of it, this clause should give some protection to the firm in such circumstances. Exceptional weather conditions would in all likelihood be covered by this clause.
Since the firm and its employees might have access to confidential information relating to the client, the clause is designed to give some comfort to the client. Please note that this obligation is mutually binding.
13. NO SOLICITING OF FIRM’S EMPLOYEES
This clause is intended to prevent the client from offering work to the firm’s staff both during the contract and for six months after it comes to an end. A breach by the client entitles the firm to claim compensation as set out in the clause.
This clause is designed to limit the firm’s liability, first by excluding liability for indirect losses incurred by the client and secondly by capping the liability in any month at the level of public liability insurance. Since it is not permissible by law to limit liability for death or injury, this risk is unlimited. The firm is obliged to take out public liability insurance.
15. LAW & DISPUTES
If a dispute occurs, this clause has a three-stage process for dealing with the problem. First, direct negotiation between senior executives; secondly, if this does not resolve the matter, the dispute can be referred to mediation. (Our free document Z140 gives some information on the mediation process) Only after these processes can a dispute be referred to the courts.
This clause contains some provisions that lawyers refer to as “boilerplate” clauses.
Here the scope of the services should be set out in some detail: two types of gardening contracts are suggested, first simple seasonal planting of planters, window boxes and planters, and, secondly, the more complex requirements of a client with grounds to be maintained.
The charges also need to be set out in the Schedule as indicated.