“Contractor” shall mean Monkey Puzzle Gardens Ltd its successors and assigns or any person acting on behalf of and with the authority of Monkey Puzzle Gardens Ltd.
“Customer” shall mean the person or entity described as such on the invoices, quotations, work authorisation or any other forms to which these terms and conditions apply, and shall mean any person acting on behalf of and with the authority of such person or entity.
“Guarantor” means that person (or Persons) or entity, who agrees to be liable for the debts of the customer on a principal debtor basis.
“Materials” shall mean Goods supplied by the Contractor to the customer (and where the context so permits shall include any supply of services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by the Contractor to the customer.
“Services” shall mean all services supplied by the Contractor to the customer and includes any advice or recommendations (and where the context so permits shall include any supply of goods as defined above).
“Price” shall mean the cost of the goods and services as agreed between the Contractor and the customer subject to clause 3 of these terms and conditions.
2 Acceptance
Any instructions received by the contractor from the customer for the supply of goods and/or services the customer’s acceptance of goods supplied by the contractor shall constitute acceptance of the terms and conditions herein.
Where more than one customer has entered into this agreement the customers shall be jointly and severally liable for all payments of the price.
Upon acceptance of these terms and conditions by the customer the terms and conditions are irrevocable and can only be amended with the written consent of the contractor.
The customer undertakes to give the contractor at least fourteen (14) days notice of any change in the customers name address and/or any other change in the customer’s details.
3 Price and Payment
At the contractors sole discretion the price shall be either;
as indicated on invoices provided by the contractor to the customer in respect of goods supplied; or
the contractor’s quoted price (subject to clause 3.2) which shall be binding upon the contractor provided that the customer shall accept the contractor’s quotation in writing within thirty (30) days.
The contractor reserves the right to change the price in the event of a variation to the contractor’s quotation.
At the contractor’s sole discretion a deposit may be required.
Time for payment for the goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due fourteen (14) days following the date of the invoice.
At the contractor’s sole discretion;
payment shall be due on delivery of the goods or
payment shall be due before delivery of the goods or
payment for approved customers shall be made by installments in accordance with the contractor’s payment schedule.
Payment shall be made by debit / credit card, cheque, or bank draft, or by any other method agreed to between the customer and the contractor.
VAT at the appropriate rate and any other taxes and duties that may be applicable shall be added to the price except when they are expressly included in the price.
4 Delivery of Materials / Goods
At the contractors sole discretion delivery of the goods shall take place when;
the customer takes possession of the goods at the customer’s address (in the event that the goods are delivered by the contractor or the contractors nominated carrier) or
the customer’s nominated carrier takes possession of the goods in which event the carrier shall be deemed to be the customer’s agent.
At the contractor’s sole discretion the costs of delivery are;
included in the price or
in addition to the price or
for the customer’s account.
The customer shall make all arrangements necessary to take delivery of the goods whenever they are tendered for delivery. In the event that the customer is unable to take delivery of the goods as arranged then the contractor shall be entitled to charge a reasonable fee for redelivery.
Delivery of the goods to a third party nominated by the customer is deemed to be delivered to the customer for the purposes of this agreement.
The contractor may deliver the goods by separate installments. Each separate installment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
The customer shall take delivery of the goods tendered notwithstanding that the quantity so delivered shall be either greater or lesser than the quantity purchased provided that;
such discrepancy in quantity shall not exceed 5% and
the price shall be adjusted pro rata to the discrepancy.
The failure of the contractor to deliver shall not entitle either party to treat this contract as repudiated.
The contractor shall not be liable for any loss or damage whatever due to failure by the contractor to deliver the goods (or any of them) promptly or at all.
5 Risk
If the contractor retains ownership of the goods nonetheless, all risk for the goods passes to the customer on delivery.
If any of the goods are damaged or destroyed following delivery but prior to ownership passing to the customer, the contractor is entitled to receive all insurance proceeds for the goods. The production of these terms and conditions by the contractor is sufficient evidence of the contractor’s rights to receive the insurance proceeds without the need for any person dealing with the contractor to make further enquiries.
6 Title
It is the intention of the contractor and agreed by the customer that ownership of the goods shall not pass until;
the customer has paid all amounts owing for the particular goods, and
the customer has met all other obligations due by the customer to the contractor in respect of all contracts between the contractor and the customer
Receipt by the contractor of any form of payment shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the contractor’s ownership or rights in respect of the goods shall continue.
It is further agreed that;
where practicable the goods shall be kept separate and identifiable until the contractor shall have received payment and all other obligations of the customer are met; and
until such time as ownership of the goods shall pass from the contractor to the customer the contractor may give notice in writing to the customer to return the goods or any of them to the contractor. Upon such notice the rights of the customer to obtain ownership or any other interest in the goods shall cease; and
the contractor shall have the right of stopping the goods in transit whether or not delivery has been made; and
if the customer fails to return the goods to the contractor then the contractor’s agent may enter upon and into land and premises owned, occupied or used by the customer or any premises as the invitee of the customer , where the goods are situated and take possession of the goods; and
the customer is only a bailee of the goods and until such time as the contractor has received payment in full for the goods then the customer shall hold any proceeds from the sale or disposal of the goods on trust for the contractor; and
the customer shall not deal with the money of the contractor in any way which may be adverse to the contractor; and
the customer shall not change the goods in any way nor grant nor otherwise give ant interest in the goods while they remain the property of the contractor; and
the contractor can issue proceedings to recover the price of the goods sold notwithstanding that ownership of the goods may not have passed to the customer; and
until such time that ownership in the goods passes to the customer, if the goods are converted into other products, the parties agree that the contractor will be the owner of the end products.
7 Customer’s Disclaimer
The customer hereby disclaims any right to rescind, cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to the customer by the contractor and the customer acknowledges that the goods are bought solely upon the customer’s skill and judgment.
8 Defects
The customer shall inspect the goods on delivery and shall within three (3) days notify the contractor of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The customer shall afford the contractor an opportunity to inspect the goods within a reasonable time following delivery if the customer believes the goods are defective in any way. If the customer shall fail to comply with these provisions the goods shall be presumed to be free from any defect or damage. For defective goods, which the contractor has agreed in writing that the customer is entitled to reject, the contractor’s liability is limited to either (at the contractors discretion) replacing the goods or repairing the goods.
9 Warranty
Subject to the conditions of warranty set out in clause 9.2 the contractor warrants that if any defect in any workmanship of the contractor becomes apparent and is reported to the contractor within three (3) months of the date of delivery (time being of the essence and unless otherwise stated in the quotation or invoice or any other forms to which these terms and conditions apply) excluding plants, grass, hedging and shrubs then the contractor will either (at the contractors sole discretion) repair the defect or remedy the workmanship.
The conditions applicable to the warranty given by clause 9.1 are;
The warranty shall not cover any defect or damage which may be caused or partly caused by or arise through;
Failure on the part of the customer to properly maintain any goods; or
Failure on the part of the customer to follow any instructions or guidelines by the contractor; or
The combined use of any goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
Fair wear and tear, any accident or act of God.
The warranty shall cease and the contractor shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the contractors consent.
In respect of all claims the contractor shall not be liable to compensate the customer for any delay in either replacing or repairing the workmanship / goods or in properly assessing the customers claim.
For goods not manufactured by the contractor, the warranty shall be the current warranty provided by the manufacturer of the goods including plants, grass, hedging and shrubs. The contractor shall not be bound by nor responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the goods.
10 Sale of goods Act 1893 and Sale of Goods and Supply of services act 1980
This agreement is subject to the provisions of the sale of goods act 1893 and the Sale of goods and Supply of services act 1980 in all cases except where the customer is contracting within the terms of a trade / business (which cases are specifically excluded).
Notwithstanding clause 10.1 nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the sale of goods act (in particular sections 12-15), or the sale of goods and Supply of Services Act 1980, or any laws or legislation governing the rights of the consumer, except to the extent permitted by those Acts laws or legislation.
In particular where the customer buys goods as a consumer the provisions of clauses 8,9 and 10 above shall be subject to and laws or legislation governing the rights of consumers.
11 Intellectual Property
Where the contractor has designed, drawn or written goods for the customer, then the copyright in those designs and drawings shall remain vested in the contractor and shall only be used by the customer at the contractors discretion.
The customer warrants that all designs or instructions to the contractor will not cause the contractor to infringe any patent, registered design or trademark in the execution of the customer’s order.
12 Default & Consequences of Default
Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per calendar month or part thereof and such interest shall compound monthly at such a rate after as well as before judgment.
If the customer defaults in payment of any invoice when due, the customer shall indemnify the contractor from and against all costs and disbursements incurred by the contractor in pursuing the debt including legal costs of a solicitor and own customer basis and the contractor’s collection agency costs.
Without prejudice to any other remedies the contractor may have, if at any time the customer is in breach of any obligation (including those relating to payment) the contractor may suspend or terminate the supply of goods to the customer and any of its other obligations under the terms and conditions. The contractor will not be liable to the customer for any loss or damage the customer suffers because the contractor exercised its rights under this clause.
If any account remains overdue after thirty (30) days then an amount of the greater of €30.00 or 10% of the amount overdue (up to a maximum of €500.00) shall be levied for administration fees which sum shall become immediately due and payable.
Without prejudice to the contractors other remedies at law the contractor shall be entitled to cancel all or any part of any order of the customer which remains unperformed in addition to and without prejudice to any other remedies and all amounts owing to the contractor shall, whether or not due for payment, become immediately payable in the event that;
any amount payable to the contractor becomes overdue, or in the contractor’s opinion the customer will be unable to meet its payments as they fall due; or
the customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors or makes an assignment for the benefit of its creditors; or
a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the customer or any asset of the customer.
13 Security & Charge
Despite anything to the contrary contained herein or any other rights which the contractor may have howsoever;
where the customer and / or the guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the customer and / or the guarantor agree to mortgage and / or charge all of their joint and / or several interest in the said land, realty or any other asset to the contractors or the contractors nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The customer and /or the contractor acknowledge and agree that the contractor (or the contractor’s nominee) shall be entitled to lodge where appropriate a caveat which caveat shall be released upon all payments and other monetary obligations payable hereunder have been met.
Should the contractor elect to proceed in any manner in accordance with this clause and / or its sub clauses , the customer and /or guarantor shall indemnify the contractor from and against all the contractor’s costs and disbursements including legal costs of a solicitor and own customer basis.
The customer and / or the contractor (if any) agree to irrevocably nominate constitute and appoint the contractor or the contractors nominee as the customers and / or guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provision of this clause 13.1
14 Cancellation
The contractor may cancel these terms and conditions or cancel delivery of goods at any time before the goods are delivered by giving written notice. On giving such notice the contractor shall repay to the customer any sums paid in respect of the price. The contractor shall not be liable for any loss or damage whatever arising from such cancellation.
The customer may cancel delivery of goods up to seven (7) days from the customer’s acceptance of the agent’s quotation.
In the event that the customer cancels delivery of goods the customer shall be liable for any loss incurred by the contractor (including, but not limited to, any loss of profits) up to the time of cancellation.
15 Data Protection Act 1988 & Data Protection Act 2003
The customer and the guarantor/s (if separate to the customer) authorises the contractor to;
collect, retain and use any information about the customer , for the purpose of assessing the customer’s creditworthiness or marketing products and services to the customer; and
to disclose information about the customer, whether collected by the contractor from the customer directly or obtained by the contractor from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or of listing (whether before or after judgment) a default by the customer on publicly accessible credit reporting databases.
Where the customer is an individual the authorities under (clause15.1)are authorities or consents for the purposes of the Data Protection Act 1988 & Data Protection Act 2003
The customer shall have the right to request the contractor for a copy of the information about the customer retained by the contractor and the right to request the contractor to correct any incorrect information about the customer held by the contractor.
16 Customer’s Responsibilities / Health & Safety
It is the customer’s responsibility to;
Study the final specification/ list of works in detail as the contractor will not be responsible for any omissions, alteration and/or changes required by the customer prior to commencement unless received in writing by the contractor seven(7) days before the commencement date; and
Have all areas clean and clear to enable scheduled work to be completed in accordance with the schedule of installation; and
Provide adequate and safe access to the work area for all workmen and equipment necessary for the work to be undertaken; and
Fully disclose any information that may effect the contractor’s or agents work
Ensure that adequate lighting for efficient working is provided in the working area; and
Remove all fragile items such as patio furniture, plant pots, garden ornaments and any other movable items stored in the work area.
Provide a suitable power supply to within three (3) meters of the project; and
Provide suitable and adequate waste disposal facilities unless otherwise agreed with the contractor.
The contractor will not accept any responsibility for cleaning or repair costs attributed to dust damage caused by the works.
In order to protect our employees, they are instructed not to enter an environment they consider to be unsafe, dangerous to health, or inoperable for any reason, but are instructed to withdraw from the premises and to report the problem. In this event the customer will be charged with all costs incurred arising out of the delay.
16 General
If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
These terms and conditions and any contract to which they apply shall be governed by the laws of Ireland and are subject to the jurisdiction of the courts of Ireland.
The contractor shall be under no liability whatever to the customer for any indirect loss and/or expense (including loss of profit) suffered by the customer arising out of a breach by the contractor of those terms and conditions
In the event of any breach of this contract by the contractor the remedies of the customer shall be limited to damages. Under no circumstances shall the liability of the contractor exceed the price of the goods.
The customer shall not be entitled to set off against or deduct from the price any sums owed or claimed to be owed to the customer by the contractor.
The contractor may license or sub-contract all or any part of its rights and obligations without the customers consent
The contractor reserves the right to review these terms and conditions at any time. If, following any such review there is to be any change to these terms and conditions, then that change will take effect from the date of which the contractor notifies the customer of such change, except where the contractor supplies further goods to the customer and the customer accepts such good, the customer shall be under no obligation to accept such changes.
Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
