David Simpson Gardens | Landscape and Garden Design Company | South West London UK
David Simpson Gardens LTD Terms of Business
These terms and conditions shall apply to any Services provided by David Simpson Gardens LTD (DSG) and acceptance is required before the commencement of any works. Please read them carefully and let DSG know if you there are any provisions you would like to discuss. They are incorporated in any estimate and shall apply unless expressly modified or excluded in writing by DSG.
DEFINITIONS
The definitions and rules of interpretation in this clause shall apply in these terms and conditions.
Client means the person, firm or company who enters into a contract with the Contractor for the provision of Works.
Consumer as defined in the Consumer Rights Act 2015
Contractor or DSG/we means David Simpson Gardens LTD, company number 10456464 with its registered office at 59 Lindsay Road, Worcester Park, England, KT4 8LF, trading as David Simpson Garden Design and Landscaping, who will provide all design works and/or carry out all of the planting and/or other works as set out in the estimates and agreed to by the Client.
Commencement Date means the date that DSG shall commence work as agreed between DSG and the Client, but no later than 30 days from the date of the Estimate, unless otherwise agreed in writing between DSG and the Client.
Completion Date means the date the Works are intended to be completed as agreed between the Client and DSG.
Contract Sum means the price of the Works set out in the Estimate and accepted by the Client excluding VAT unless otherwise specified in writing by DSG.
Estimate means the written estimate provided by DSG for the completion of the Works.
Products means the products (for example plants, trees, grasses, garden accessories and timber) which DSG will supply as set out in any Estimate.
Project means the complete garden design and landscaping project of the Client in relation to which DSG is providing its Services.
Site means the location where the Works are to be performed by DSG. Services means all the services which DSG provides to the Client, including any Specification and Works.
Specification means all written documents including detailed plans and/or drawings describing the Works provided by DSG.
Works means the work to be carried out by DSG under the contract as set out in the Specification.
Paragraph headings shall not affect the interpretation of these terms and conditions.
These terms are written for Clients who are Consumers. In the event that you are a Client who is not a Consumer then the provisions of these terms which apply to Consumers under UK legislation (such as cooling off periods) shall not apply.
A person includes corporations where the context requires. Words in the singular shall include the plural and vice versa.
References to “in writing” and any similar expression includes electronic communications whether sent by email or other means.
Variations means variations to the Works in accordance with clause 4 of these terms and conditions.
In the event of any inconsistency between these terms and an Estimate provided by DSG, the terms of the Estimate shall prevail.
We recommend that you print or save a copy of these terms and conditions for your reference.
1.Scope of Work
1.1 DSG shall carry out and complete the work described in the Estimate in a good and workmanlike manner. They shall have no obligation to execute any further work unless agreed in writing between the parties of the contract. If there is any discrepancy between any Specification and any drawing then the description contained in the Specification shall prevail over the drawing.
1.2 The Client is responsible for assessing and obtaining any necessary planning or other permissions required for the Works and for fulfilling any statutory requirements.
2. Estimate
2.1. DSG shall provide an Estimate in writing specifying the Works to be carried out and a breakdown of the cost of the Works.
2.2. The Estimate shall remain open for acceptance for 30 days (or such other period as may be agreed in writing) from the date it is provided by DSG. If the Estimate is not accepted by the Client in writing or any other means within this period, the Estimate shall lapse and be deemed to have been withdrawn.
2.3. If the Client accepts the Estimate in writing or any other means within the period stipulated in clause 2.2 the price contained in the Estimate shall become the Contract Sum except as expressly provided in these terms. A binding contract will come into existence when the Client accepts the Estimate in writing or any other means and the deposit shall become payable.
2.4. It should be noted that any attempted or any actual cancellation thereof by the Client in breach of these terms and conditions may involve the Client in a claim for recovery by DSG of any loss or expense incurred as a result.
2.5 Site visit: A consultation/site visit fee of £100 + VAT may be payable by the Client in advance of any initial consultation/site visit. This fee is fully refundable against works commissioned. Fee is subject to change without notice.
3. Variations
3.1. The Client may issue, to DSG, reasonable instructions to vary or modify the quality and quantity of the Works. All instructions given by the Client must be given in writing. DSG is not under any obligation to carry out verbal instructions until confirmed in writing, except in the case of an instruction being issued by the Client in an emergency e.g. health and safety matters. All instructions issued in an emergency shall be confirmed in writing within 3 days and DSG shall be entitled to be paid for work properly carried out in accordance with any such instruction.
3.2. If the variation alters the cost of carrying out the Works, DSG will provide a written Estimate and cost breakdown for the cost of carrying out the variation and any effect it will have on the Completion Date. The Client and DSG shall agree an adjustment to the Contract Sum in writing or any other means. If the Client receives the amended Estimate and wishes to proceed, the Client shall confirm its instruction to proceed in writing or any other means, accepting the new Estimate and the extended Completion Date.
3.3. DSG’s personnel or the staff of other relevant supply companies working on Site have no authority to vary the contract in any way and any requests to vary must be made to DSG in writing and agreed in writing.
4. Payment
4.1. The Client accepts without exception, that they will pay to DSG the Contract Sum together with any Value Added Tax properly chargeable upon the Contract Sum. VAT is to be added to all prices quoted unless specified otherwise in the Estimate.
4.2. All accounts are net and do not provide for any discounts or retentions unless otherwise agreed.
4.3. All accounts are payable on the date of written request by DSG as outlined in the Estimate. Interest on all payments due from the Client to DSG shall accrue and be payable from the date when payment first becomes due on a daily basis until the date of actual payment at a rate equivalent to 8% over the base lending rate for the time being of National Westminster Bank plc and shall accrue at such rate after as well as before any judgment.
4.4. The payment schedule for Services shall be as follows unless specified otherwise in the Estimate provided by DSG:
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A non-refundable deposit of 50% or any other amount specified in writing which may be the full invoice amount, is to be paid by the Client to DSG upon acceptance of the Estimate by the Client in writing or any other means.
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The Client will be required to make a final payment of 50% or balancing payment if/as applicable and when requested in writing by DSG or any other means.
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Any additional works agreed in writing or any other means by the Client and DSG over and above the original Works estimated shall be paid by the Client to DSG when requested in writing by DSG.
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The payment schedule above or contained in the Estimate may be altered by DSG in any way that is necessary to facilitate the delivery and implementation of goods to site. The Client will be notified in writing of any changes to the payment schedule, as needed, prior to goods arriving on site.
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All parking charges and congestion charges legitimately incurred while carrying out the Works at the Site will be added if applicable and paid in full by the Client
4.5. Debt Collection.
Outstanding debt/payments will be handed over to and collected on behalf of DSG by an external debt collection agency. Should this action be required, the debtor (Client) will pay, without exception, any and all commissions or fees charged by the debt collection agency to DSG for carrying out the debt collection. Debt collection agencies may be instructed to collect outstanding payments owed to DSG by the Client as soon as payments become due and have been requested in writing or by any other means by DSG.
5. Intellectual Property
5.1 DSG will own (and retain) all intellectual property rights (at all times throughout the world) in the Specifications created in the course of performing the Services.
5.2 DSG will assert all moral rights arising out of Chapter IV of the Copyright, Designs and Patents Act 1988.
5.3 DSG will grant the Client a royalty-free non-exclusive world-wide licence to use the Specifications for the purposes of the Project and to allow any third party consultants and contractors appointed to the Project to do the same.
5.4 If the Client wishes to use any of DSG’s Specifications for any purposes outside of the scope of the Project, the Client must obtain DSG’s express written consent and credit DSG as the copyright owner.
5.5 Where any payments due under these terms and conditions are overdue by a period exceeding 14 days, DSG has the right, exercisable by written notice to the Client, to suspend any licences granted under this Clause 5 until all such payments are paid in full.
5.6 DSG has the right to use and the Client consents to the use of any photographs or videos of the Works taken by DSG or sent to DSG by the Client for marketing purposes on DSG's website and social media platforms or on any other marketing materials for DSG.
6. The Site
6.1. The Client warrants that the Site is free from springs, flooding, rock, tree stumps not specified to be removed, mine workings, covered wells or other cavities, running sand, service pipes and electric/internet or other cables, sewage or land drains, foundations or other hazards or obstructions which are not discoverable upon visual inspection of the surface of the Site or made known in writing to DSG prior to the submission date of the Estimate. DSG shall be entitled to make a reasonable charge for all additional work necessary resulting from the discovery of such hazards.
6.2. Timely possession of the Site and proper and adequate access to it must be made available by the Client to DSG to enable the work to be carried out in a regular and economic manner.
6.3. The Client will provide access to water, electricity and toilet facilities wherever possible for use by DSG in carrying out the Works. The provisions of these services and facilities shall be at the sole cost of the Client.
6.4. The Client shall be responsible for ensuring the safety of their children, family members, pets, animals and visitors at all times whilst Works are being carried out on their premises. The Client is responsible to ensure any pet or animal waste/mess/ faeces will be cleared from the Site at all times.
7. Delay or Disruption
7.1. DSG shall enter the Site and commence the Works on the Commencement Date and shall proceed with due diligence and use reasonable endeavours to complete the Works by the Completion Date. Time shall not be of the essence in carrying out the Works.
7.2. If it becomes apparent to DSG that the progress of the Works is being delayed and/or the Works will not be completed by the Completion Date, DSG shall, within 7 days of any event or occurrence giving rise to such delay, notify the Client in writing of the cause and duration of such delay. The Completion Date will be extended by a fair and reasonable amount of time if DSG:
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has to spend extra time completing the Works because of variations made to the Specification and/or Works by the Client;
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is delayed and cannot complete the Works on time due to an act or omission of the Client;
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cannot finish the Works on time for reasons beyond its control such as:
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excessively adverse weather conditions or other force majeure events;
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variable Site conditions;
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machinery malfunction;
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any other delay or change of mind caused by the Client;
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any delay or late delivery of materials by third parties such as manufacturers, suppliers, contractors, designers or architects involved; and/or
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Non/late payment by the Client
These examples are indicative only and not intended to be an exhaustive list.
7.3. DSG shall be entitled to claim any additional costs incurred as a result of the Completion Date being extended due to any events in clause 7.2 as well as retain the full deposit paid. Such additional costs shall be added to the Contract Sum.
7.4. In the event that any other works are being or going to be carried out by other contractors, (e.g. building or landscaping works on the Site at the same time as the Works to be carried out by DSG), and will impact on these Works, in any way, then DSG will have the right to delay the start date of its Works until such time as all other tradesmen are finished their works completely and are off Site. The Client will inform DSG of the completion date of any works that may affect the DSG Works. DSG shall not be liable for any costs the Client may incur as a result of an extended start date for the Works. DSG shall be entitled to claim any additional costs incurred and loss of earnings as a result of the Start Date being extended due to any other works being carried out by other tradesmen impeding on the Site.
8. Products on Site
8.1. The risk in any Products delivered to Site immediately transfers to the Client on delivery. The Ownership of any Products shall only transfer once payment has been made in full for the Contract Sum + VAT. Until such payment has been made, they shall remain the property of DSG and be removable by DSG who shall have the right to enter the Site for such purpose.
8.2. All Products supplied by DSG together with associated delivery costs must be paid for in full, and prior to delivery to Site in accordance with the payment terms in the Estimate, by the Client once the Estimate for such items has been accepted in writing or any other means by the Client. Any costs incurred by DSG as a result of a change of mind of the Client or returns or cancellations requested by the Client for any Products after any such items have been prepared for delivery or have been delivered by the relevant suppliers to Site or have been paid for by DSG, will be solely the Clients responsibility. Any and all associated costs will be immediately payable to DSG in full, upon written presentation of an invoice for these costs to the Client by DSG.
9. Maintenance
The responsibility for the proper maintenance of the Site and all Products immediately passes to the Client upon completion of the Works unless otherwise agreed in writing.
10. Plants and Planting
10.1. DSG guarantees that all plants, trees and grass supplied are inherently healthy when delivered to site and planted and are sourced from reputable UK nurseries but does not provide any guarantee about future growth or health of such Products on Site once they have been planted. If a particular variety (i.e. species or cultivar) is not available a suitable substitute will be selected as far as is possible.
10.2. Mature Trees and plants.
There is a higher risk of mature plants and trees dying. If the Client requests DSG’s Works to include the provision and/or planting of mature plants/trees they acknowledge this risk and agree to DSG’s exclusion of liability for any loss/damage or death of these products.
10.3. DSG guarantees that grass or grass seed supplied has been tested and conforms with currently applicable regulations. It should be understood that a sward cannot be made in one season and seed cannot be eradicated when DSG undertakes to cultivate land. DSG cannot therefore take responsibility for subsequent weed growth. No guarantees for any grass or grass seed shall be provided by DSG under any circumstances once laid.
11. Quality of Workmanship
11.1. The quality of the workmanship provided by DSG will be in accordance with recognised horticultural practices and Products recommended and/or supplied will be suitable for their intended use as far is reasonably possible.
11.2. Unless otherwise stated, timber supplied by DSG will be pressure treated.
11.3. Unless otherwise stated, any and all products ordered or purchased by DSG, which are intended for installation on site and/or are ordered or delivered to site, will have no guarantees of any kind from DSG.
12. Appointment of Third Party Contractors
12.1 Clients must appoint third party contractors as necessary or appropriate to perform other services as part of your Project. It is the Client’s responsibility to ensure such third party contractors are suitably qualified and experienced to undertake the works required.
12.2 If the Client appoints any third party contractor to carry out or provide services in relation to the Works, the Client must ensure that in the contractual terms agreed with them the contractor is responsible for:
12.2.1 –the delivery of the relevant work or services;
12.2.2 - site safety while they are providing their services; and
12.2.3 – co-operation with DSG as required to complete the Works or any other services that DSG is providing.
12.3 DSG may identify certain third party specialists that are required to complete part of the work identified in the Works and if so, it is the Client’s responsibility to appoint the third party specialist and enter into a direct contractual relationship with them. DSG will not be a party to any such contracts.
13. Consumer Rights and Cancellation during cooling off period
13.1 . Consumers have certain legal rights with respect to the purchase of goods and services. For full details of a consumer’s legal rights and guidance on exercising them, it is recommended that the Citizens Advice Bureau or Trading Standards Office be contacted. If DSG does not perform the Works with reasonable skill and care, the Client shall have the right to request repeat performance or, if that is not possible or done within a reasonable time without inconvenience, the Client shall have the right to a reduction in price. If the Works are not performed in line with information that DSG has provided about them, the Client also has the right to request repeat performance or, if
that is not possible or done within a reasonable time without inconvenience, the Client shall have the right to a reduction in price. If for any reason DSG are required to repeat the Works in accordance with the Client’s legal rights, DSG will not charge the Client for the same and DSG shall bear any and all costs of such repeat performance. In cases where a price reduction applies, this may be any sum up to the full cost of the Works and, where you have already made payment(s) to DSG, it may result in a full or partial refund. Any such refunds will be issued without undue delay (and in any event within 14 calendar days starting on the date on which DSG agrees that the Client is entitled to the refund) and made via the same payment method originally used by the Client. In addition to the Client’s legal rights relating directly to the Works, they also have remedies if DSG used Products that are faulty or incorrectly described.
13.2 Where the contract is not made “on Our premises”, the Client has a statutory right to a “cooling off” period. This period begins once the contract is formed and ends at the end of 14 calendar days after that date.
13.3 If the Client wishes to cancel the contract within the cooling off period they should inform DSG immediately by a clear statement (e.g. a letter sent by post, fax or email to the postal address, fax number or email address specified in these Terms and Conditions). The Client may use the Model Cancellation Form which DSG can provide, but does not have to.
13.4 To meet the cancellation deadline, it is sufficient for the Client to send the communication concerning the exercise of the right to cancel before the cancellation period has expired.
13.5 If the Client exercises this right to cancel they will receive a full refund of any amount paid to DSG in respect of the contract.
13.6 DSG will refund money using the same method used to make the payment, unless the Client has expressly agreed otherwise. In any case, the Client will not incur any fees as a result of the refund.
13.7 DSG will process the refund due to the Client as a result of a cancellation without undue delay and, in any case, within the period of 14 days after the day on which it is informed of the cancellation.
13.8 If the Commencement Date falls within the cooling off period the Client must make an express request for provision of the Services to begin within the 14 calendar day cooling off period. By making such a request the Client acknowledges and agrees to the following:
13.9 If the Services have been fully performed within the 14 calendar day cooling off period, they will lose the right to cancel once the Services have been fully performed;
13.10 If they cancel the contract after provision of the Services has begun they will be required to pay for the Services supplied up until the point at which the Client informs DSG of their wish to cancel;
13.11 The amount due will be calculated in proportion to the full price of the Services and the actual Services already provided. Any sums that have already been paid for the Services will be refunded subject to deductions calculated on this basis;
13.12 DSG will process any refund no later than 14 calendar days after the Client informs it that they wish to cancel.
14. Termination
14.1 The Client may terminate the contract by giving DSG 28 days’ written notice at any time however the payment provisions applicable in clause 4.4 or the Estimate in relation to any non-refundable deposit amount paid by the Client shall apply (unless the termination is during the “cooling off period” under clause 13 above.
14.2 The Client may terminate the contract with immediate effect by giving DSG written notice if:
14.3 DSG has breached the contract in any material way and has failed to remedy that breach within 14 days of the Client asking it in writing to do so;
14.4 DSG enters into liquidation or has an administrator or receiver appointed over its assets;
14.5 DSG is unable to provide the Services due to an event outside of its control (see Clause 16).
14.6 DSG may terminate the contract with immediate effect by giving the Client written notice if:
14.7 The Client fails to make a payment on time as required under Clause 4 (this does not affect Our right to charge interest on overdue sums under sub- Clause 4.3);
14.8 The Client has breached the contract in any material way and have failed to remedy that breach within 14 days of DSG asking the Client in writing to do so; or
14.9 DSG has been unable to provide the Services for more than 12 weeks due to an event outside of Our control (see Clause 16).
14.10 For the purposes of this Clause 14 a breach of the contract will be considered ‘material’ if it is not minimal or trivial in its consequences to the terminating party. In deciding whether or not a breach is material no regard will be had to whether it was caused by any accident, mishap, mistake or misunderstanding.
14.11 If at the termination date:
14.11.1 The Client has made any payment to DSG for any Services it has not yet provided (over and above the non-refundable deposit payment), these sums will be refunded to the Client as soon as is reasonably possible, and in any event within 14 calendar days of the termination notice; or
14.11.2 DSG has provided Services that the Client has not yet paid for, the sums due will be deducted from any refund due to the Client or, if no refund is due, DSG will invoice the Client for those sums and the Client will be required to make payment in accordance with Clause 4.
15. Effects of Termination
15.1 If the contract is terminated for any reason:
15.1.1 Any clauses which, either expressly or by their nature, relate to the period after the expiry or termination of the contract will remain in full force and effect.
15.1.2 Termination will not remove or reduce any right to damages or other remedy which either party may have in respect of any breach of the contract which exist at or before the date of termination.
15.1.3 Any licences granted under Clause 5 will terminate but the parties will enter into good faith negotiations for grant of a replacement licence to use the Specifications if appropriate.
16. Events Outside of Our Control (Force Majeure)
16.1 DSG will not be liable for any failure or delay in performing its obligations under these terms and conditions where the failure or delay results from any cause that is beyond its reasonable control. Such causes include, but are not limited to: power failure, internet service provider failure, strikes, lock-outs or other industrial action by third parties, riots and other civil unrest, fire, explosion, flood, storms, earthquakes, subsidence, acts of terrorism (threatened or actual), acts of war (declared, undeclared, threatened, actual or preparations for war), epidemic or other natural disaster, or any other event that is beyond Our reasonable control.
16.2 If any event described under this Clause 16 occurs that is likely to adversely affect DSG’s performance of any of its obligations under these terms and conditions:
16.2.1 DSG will inform the Client as soon as is reasonably possible;
16.2.2 DSG’s obligations under the contract will be suspended and any time limits that it is bound by will be extended accordingly;
16.2.3 DSG will inform the Client when the event outside of its control is over and provide details of any new dates, times or availability of Services as necessary; and
16.2.4 Either party may terminate the contract (in accordance with clause 14.3.3).
17. Changes to Terms and Conditions
17.1. You can review the most current version of the terms and conditions at any time at this page.
17.2. DSG reserves the right, at our sole discretion, to update, change or replace any part of these terms and conditions by posting updates and changes to its website. Your continued use of or access to our website or written agreement if a contract is currently in place constitutes acceptance of those changes.
18. Agreement
18.1. Acceptance/agreement by you in any format of any Services or Estimates provided by DSG means you have read and agreed to all of the above terms and conditions and agree to be bound by them. These terms and conditions can be accessed by the links provided on all Estimates sent to you or through this website at any time. A hard copy can be sent to you on your request before agreeing to the Estimate or any other services offered.
19. Liability
19.1. DSG shall be responsible for any foreseeable loss or damage that the Client may suffer as a result of its breach of these terms and conditions or as a result of its negligence (including that of its employees, agents or sub- contractors). Loss or damage is foreseeable if it is an obvious consequence of the breach or negligence or if it is contemplated by DSG and the Client when the contract is created. DSG will not be responsible for any loss or damage that is not foreseeable.
19.2 DSG will maintain suitable public liability and professional indemnity insurance and will provide evidence of this cover if so requested by the Client.
19.3. DSG’s total liability to the Client in respect of any liability under this contract shall be capped at the fees paid by the Client under the terms of this contract.
19.4. DSG shall use reasonable efforts to ensure that the provision of the Works is trouble-free. If, however, there is a problem with the Works provided under this contract, the Client must inform DSG as soon as is reasonably possible. DSG shall use reasonable efforts to remedy problems with the Works as quickly as is reasonably possible and practical.
19.5. DSG will not charge the Client for remedying problems under this Clause 19 where the problems have been caused by DSG, any of their agents or employees or sub-contractors. If DSG determines that a problem has been caused by incorrect or incomplete information or action provided or taken by the Client or other contractors it engages, DSG may charge the Client for remedial work.
19.6 DSG provides Services for domestic and private purposes only. It makes no warranty that the Services are fit for commercial, business or industrial purposes of any kind. It will not be liable for any loss of profit, loss of business, interruption to business or loss of any business opportunity.
19.7 Nothing in these terms and conditions is intended to or will limit or exclude DSG’s liability for death or personal injury caused by its negligence or for fraud or fraudulent misrepresentation.
19.8. All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the contract.
19.9 DSG makes the following specific limitations on its liability which are relevant to the Services it provides and which the Client should be aware of:
19.9.1 DSG accepts no liability for loss or damages resulting from failed planning or other permissions, additional planning applications or other retrospective planning by the Client;
19.9.2 DSG accepts no liability for increases to the Contract Sum and extensions to the Completion Date or consequential effects of these which result from variations to Works as instructed and agreed by any means by the Client;
19.9.3 Wherever possible DSG will endeavour to ensure all Products are on Site as scheduled, however, DSG does not accept liability for delays outside of its control such as the non-exhaustive list in clause 7.2;
19.9.4 DSG accepts no liability for any loss, theft or damage incurred after delivery of the Products to Site. Any additional Products required after such loss or damage shall be at the Client’s expense;
19.9.5 DSG accepts no liability for loss or damage to plant Products before or after planting since subsequent site and weather conditions are beyond DSG’s control; and
19.9.6 It should be noted that timber Products can be prone to some natural movement for which DSG can accept no liability.
19.6.7 DSG is not a party to any Client contracts with third party contractors it chooses to appoint and cannot accept any liability for any works or services that any third party provides as part of the Project (or otherwise).
20. Complaints and feedback
20.1 DSG always welcomes feedback from its Clients and, while DSG always uses all reasonable endeavours to ensure that Clients are satisfied with its Services, it nevertheless wants to hear from Clients if there is any cause for complaint.
20.2 If Clients wish to contact DSG to discuss any element of its Services please use the regular contact methods highlighted below:
in writing to DSG, 59 Lindsay Road, Worcester Park, KT4 8LF by telephone on 07957 792 052; or by email at davidsimpsongd@gmail.com.
21. Personal Data
We will only use Client’s personal data as set out in our privacy policy available on our website davidsimpsongardens.co.uk.
22. Law and dispute resolution
22.1. This contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales and the courts of England shall have exclusive jurisdiction (unless you are resident in another jurisdiction in the UK).
22.2 The parties will use their best efforts to negotiate in good faith and settle any dispute that may arise out of or relate to their contract or any breach of it.
22.3 If any such dispute cannot be settled amicably through negotiations between the parties, or either or both is or are unwilling to engage in this process, either party may propose to the other in writing that structured negotiations be entered into with the assistance of a fully accredited mediator before resorting to litigation.
22.4 Any dispute shall not affect the parties' ongoing obligations under their contract.