Schedule to Terms of Contract
1. Definitions and interpretation
1.1. The terms defined in the Terms of Contract shall apply to this Schedule.
1.2. Headings contained in this agreement are for reference purposes only and should not be incorporated into this agreement and shall not be deemed to be any indication of the meaning of the clauses to which they relate.
The Client appoints the Company to perform the Works in return for the Payments.
3. The Company’s obligations
Under the Wildlife and Countryside Act 1981 it is an offence ‘to plant or otherwise encourage’ the growth of Japanese Knotweed. This could include cutting the plant roots and disturbing surrounding soil if not correctly managed. The Company will use reasonable endeavours to perform the Works in accordance with:
3.1. Current statutes and regulations enforceable in England and Wales in respect of Japanese Knotweed.
4. The Client’s obligations
In consideration of the services to be rendered by the Company under this agreement the Client agrees:
4.1. to make the Payments promptly without demand deduction or set-off;
4.2. to ensure the Site is prepared in accordance with the requirements of the Company;
4.3. To ensure all necessary machinery is available on site when the company are in attendance. Failure to comply may cause the job to be aborted and an additional charge.
4.4. to afford the Company any right of access to the Site as is required to perform the Works;
4.5. to ensure that all employees, agents and / or contractors of the Client of the Site at the time of the Works must obey the Company’s reasonable orders and instructions;
4.6. to ensure that Site utilities locations are made available prior to a start on site. Non-invasive spray works are deemed to not impact upon utilities however excavation works will require specific location of services. Non supply of site utility locations shall be deemed to mean that there are no services in areas to be excavated – no liability will be accepted by The Company for any damage to services not identified by client.
4.7 to ensure that warranties are paid in advance to ensure continued site guarantee coverage.
4.8 Should a site have Health and Safety issues with particular reference to members of the public.
4.9 to ensure that any works undertaken on site which may compromise our works such as a change in levels or movement of material are supervised by IWC to prevent further contamination – supervisory works are charged at standard rates.
4.10 to pay an agreed deposit for works £10,000 or above.
4.11 If the property/site owner, tenant or any other person acting on their behalf does not allow undisturbed access to our operatives to carry out work according to the management plan, the treatment will be stopped with no refund of the payment for our services.
4.12 Once a treatment/monitoring course has started, it is the responsibility of the client, new owner, landlord or tenant to ensure that the treated area is not disturbed by any means, e.g. poisoning, digging, cutting, trampling, fly tipping, building or treatment by other person/party. If we find that there is a potential that dormancy of the plant has been caused by any of the above, the treatment/monitoring may be stopped with no refund of the payment for our services.
4.13 If the treated area has been disturbed by any means listed above, it is at the discretion of the company to decide if the treatment can be continued. The client may be offered to proceed with treatment for extra charge. The management plan will be modified accordingly and agreed with the client. If the client does not agree to continue treatment for the extra charge the treatment/monitoring will be stopped with no refund.
4.14 The company reserves the right to cancel the contract if we find that regrowth during our treatment/monitoring course is caused by spread from other locations not specified in the management plan or not agreed to be treated with the client. These include, but are not limited to, neighbouring land, stream/river, railway, regular animal routes.
4.15 Failure to pay the invoice in stated time when paying by instalments will cause cancellation of the contract.
4.16 Once the contract is cancelled the insurance backed guarantee policy will be automatically cancelled.
4.17 If the contract is cancelled, a cancellation notice will be sent to the client by email or by recorded delivery mail if an email address is not provided. Once the cancellation notice is sent, South Yorkshire Knotweed Control Ltd have no legal responsibility to the client.
5.1. All sums payable under this agreement unless otherwise stated are exclusive of VAT and other duties or taxes.
6. Lump sum price
6.1 Where a price is quoted as Lump Sum agreed price this figure is not subject to re-measure.
7. Payment & Invoicing Terms
7.1 Your treatment plan will be invoiced in full and due immediately should you require. However, there is also the option to pay as per the below stated schedule.
7.2 If you select this option you agree to our payment terms are over a 3-year period.
7.3 The invoice to pay the first instalment for the treatment/monitoring course will be sent to the client once the client has agreed to proceed with the treatment. Our contract with the client starts immediately after the first payment is received. Invoices to pay the remaining instalments will be forwarded to the client as agreed in the survey report/management plan. It is the responsibility of the client who has agreed with the contract with us to arrange payment of all instalments either by themselves or by the new owner of the property. Failure to pay any of the invoices by the client or the new owner will void our contract. The treatment/monitoring will be stopped with no refund.
8.1 The Client understands that the service the company provides to identify Japanese Knotweed is based on ‘reasonable endeavours’ to identify the infestation at the time of survey.
8.2 Due to rapid growth characteristics of Japanese Knotweed no liability for additional cost is accepted by the company for any areas of Japanese Knotweed not identified on the original survey. 8.3 The Client should understand that the underground rhizome system produced by Japanese Knotweed is not visible from surface inspection and that these areas can only be shown as ‘guidelines’ – these areas are identified for discussion purposes only and cannot be used as exact location of root systems.
8.4 The findings of a Japanese knotweed survey are the result of a visual inspection only. Therefore, they should not be taken as a guarantee that Japanese knotweed, or another invasive weed, is not present on the site or neighbouring land.
The presence of Japanese knotweed and other invasive weeds can be concealed by property owners or contractors either by accident or deliberately. This can be by way of physical removal of the plant stems and crowns, vegetation clearance or by covering the area over with turf, paving, aggregates and other similar materials.
8.5 Should the client decide to cancel the survey service then a charge of 10% of the order value will be applicable.
9.1. The Company shall not be liable to the Client for loss or damage to the Client’s property unless due to the negligence or other failure of the Company to perform its obligations under this agreement or under the general law.
9.2. The Company warrants that the Works will be performed using reasonable skill and care. Except where the Buyer is dealing as a consumer (as defined in the Unfair Contract Terms Act1977 Section 12 and/or the Unfair Terms in Consumer Contracts Regulations 1999 Regulation 3(1)) all other warranties, conditions or terms relating to fitness for purpose, quality or condition of the Works, whether express or implied by statute or common law or otherwise are excluded to the fullest extent permitted by law.
9.3. The Company shall be under no liability whatever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Company of this Agreement.
9.4. In the event of any breach of this contract by the Company the remedies of the Client shall be limited to damages. Under no circumstances shall the Company’s liability exceed the of the Payments or the amount of any valid insurance available to meet the claim.
9.5. The Company shall not be liable for failure or delay in fulfilling any of its obligations, where fulfilment therefore is prevented, frustrated, impeded, delayed or rendered uneconomic by circumstances or events beyond the Company’s reasonable control.
9.6. Variation Clause - Due to the uncertainty of the spread of Japanese Knotweed beneath the soil/ground surface - which can only be revealed once works have begun - Japanese Knotweed Specialists reserve the right to change the details of the works package to suit site conditions. No additional costs will be incurred prior to gaining agreement from client - however methodologies may vary from that stated within price breakdown.
9.7 South Yorkshire Knotweed Control Ltd usually undertakes the work ourselves. However, we reserve the right to sub-contract to a suitably qualified third party. Where a contract is made with a third party by South Yorkshire Knotweed Control Ltd, they are not acting as either agent or principal. The contract is made between the client and Japanese Knotweed Plus Ltd and will be subject to our terms and conditions of service.
9.8 Once the treatment has commenced, South Yorkshire Knotweed Control Ltd reserves the right to modify the management plan regarding the treatment/monitoring in line with the best practice of the company.
9.9 It is the sole responsibility of the client/landlord to supply copies of the survey report, management plan, terms and conditions of service and other relevant documents to the new owner/tenant.
9.10 Contractors working at the property during our treatment/monitoring course, e.g. builders, gardeners, etc., must be instructed by the client to make them aware of the Japanese knotweed and precautions required. Copies of the survey report, management plan, terms and conditions of service and other relevant documents must be passed to them when necessary.
9.11 contravention of points above will invalidate the warranty.
10. Termination for breach
The following obligations are conditions of this agreement and any breach of them shall be deemed a fundamental breach which shall determine this agreement immediately and the rights and liabilities of the parties shall then be determined in accordance with clause 7.
10.1. Failure on the part of the Client to make punctual payment of all sums due to the Company under the terms of this agreement;
10.2. The levying of any distress or execution against the Client or their making any composition or arrangement with creditors or being a company the Client’s liquidation (other than a members’ voluntary liquidation with the written consent of the Client.
11. Termination consequences
11.1. In the event of this agreement being determined whether by Notice breach or otherwise the Client shall immediately pay to the Company:
11.1.1. all arrears of Payments and any other sums due under the terms of this agreement, and 11.1.2. all further sums which would but for the determination of this agreement have fallen due by the end of the term.
11.2. Either party shall be entitled to exercise any one or more of the rights and remedies given to it under the terms of this agreement and the determination of this agreement shall not affect or prejudice such rights and remedies and each party shall be and remain liable to perform all outstanding liabilities under this agreement notwithstanding that the other may have exercised one or more of the rights and remedies against it.
11.3. Any right or remedy to which either party is or may become entitled under this agreement or in consequence of the other’s conduct may be enforced from time to time separately or concurrently with any right or remedy given by this agreement or now or afterwards provided for and arising by operation of law so that such rights and remedies are not exclusive of the other or others but are cumulative.
12.1. All sums due from the Client to the Company which are not paid on the due date (without prejudice to the rights of the Company under this agreement) shall bear interest from day to day at the monthly rate of 2%.
12.2. The receipt of money by either of the parties shall not prevent either of them from questioning the correctness of any statement in respect of such money.
12.3. Both parties shall be released from their respective obligations in the event of national emergency war prohibitive governmental regulation or if any other cause beyond the reasonable control of the parties or either of them renders the performance of this agreement impossible whereupon all money due under this agreement shall be paid immediately.
12.4. If any provision of this agreement is declared by any judicial or other competent authority to be void voidable illegal or otherwise unenforceable the remaining provisions of this agreement shall remain in full force and effect unless the Company in the Company’s discretion decides that the effect of such declaration is to defeat the original intention of the parties in which event the Company shall be entitled to terminate this agreement by 30 days’ notice to the Client and the provisions of clause 8 shall apply accordingly.
12.5. Each party acknowledges that this agreement contains the whole agreement between the parties and that it has not relied upon any oral or written representation made to it by the other or its employees or agents and has made its own independent investigations into all matters relevant to it.
12.6. This agreement supersedes any prior agreement between the parties whether written or oral and any such prior agreements are cancelled as at the date of this Agreement but without prejudice to any rights which have already accrued to either of the parties.
12.7. Any decision exercise of discretion judgment or opinion or approval of any matter mentioned in this agreement or arising from it shall be binding on a party only if in writing and shall be at its sole discretion unless otherwise expressly provided in this agreement.
12.8. Each of the parties shall give notice to the other of the change or acquisition of any address or telephone or similar number at the earliest possible opportunity but in any event within 48 hours of such change or acquisition.
12.9. All notices to be given under this agreement shall be in writing and shall either be delivered personally or sent by first class or airmail prepaid post or by telex, or email and shall be deemed duly served:
12.9.1. in the case of a notice delivered personally, at the time of delivery;
12.9.2. in the case of a notice sent inland by first class prepaid post, 2 clear business days after the date of dispatch; and
12.9.3. in the case of an email, if sent during normal business hours then at the time of transmission and if sent outside normal business hours then on the next following business day provided that a confirmatory copy is sent by first class prepaid post or by hand by the end of the next business day.
12.10. Each notice shall be addressed to the address of the party concerned set out in this agreement or to such other address as that party shall have previously notified to the sender.
12.11. This agreement and all rights under it may be assigned or transferred by the Company.
12.12. This agreement shall be governed by English law in every particular including formation and interpretation and shall be deemed to have been made in England.
12.13. Any proceedings arising out of or in connection with this agreement may be brought in any court of competent jurisdiction in England and Wales.
12.14. All rights granted to either of the parties shall be cumulative and no exercise by either of the parties of any right under this agreement shall restrict or prejudice the exercise of any other right granted by this agreement or otherwise available to it.
12.15. No term shall survive expiry or termination of this agreement unless expressly provided. 12.16. The failure by either party to enforce at any time or for any period any one or more of the terms or conditions of this agreement shall not be a waiver of them or of the right at any time subsequently to enforce all terms and conditions of this agreement.
12.17. During the term of this Agreement the Company shall be an independent Company and not the servant of the Client and the Company shall not be subject to directions from the Client as to the manner in which he performs his work. JKWS Contract – V18 – 031018 – LGR Not Controlled When Printed Page 6 of 6
12.18. Each of the parties shall pay any costs and expenses incurred by it in connection with this agreement.
12.19. A person who is not a party to this agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of this agreement.
Completion of Contract
Once we have not observed regrowth of Japanese Knotweed in two consecutive years, in the 2 years of a 5-year programme, if client abides by our terms and conditions our contract is completed.
The completion certificate will be issued and forwarded to the client electronically to the email address provided and posted to the property address or to the address specified by the client.
No refund will be provided to the client if the contract has completed before the terms specified in the management plan.
No additional cost will be claimed from the client if the contract completed after the terms specified in the management plan.
Once our contract is completed, our terms and conditions are no longer applicable and we do not hold any responsibility with any Japanese Knotweed issue in the area specified in the contract.
We operate a complaints handling procedure; which we will use to resolve disputes should they arise. If the client has any comments or complaints, one of the directors of South Yorkshire Knotweed Ltd may be contacted directly.
The above Terms and Conditions of Service constitute the agreement between the parties and supersede any and all preceding and contemporaneous agreements between the client and South Yorkshire Knotweed Control Ltd.
South Yorkshire Knotweed Control Ltd reserves the right at any time to modify this agreement and to impose new or additional terms.
South Yorkshire Knotweed Control Ltd.
Wood Lane Countryside Centre
Company Number 11888585