Terms

1 Definitions
In this Agreement the following terms and phrases shall have the following meaning unless the context requires otherwise:

Contractor – (Epic Tree Care Ltd) – the person(s) or business undertaking the works.

Client(s) – the person(s) or business instructing the works (and in so doing accepting the quote, agrees to / accepts the following terms and conditions.).

Service(s) – The agreed services to be performed by the Contractor as set out in the Schedule to this Agreement, such Services to be provided using reasonable skill and care.

2 Contract and Quotation
The quotation/estimate is valid for 30 days from date of issue. Contractor reserves the right of review / amendment should the order be placed out with the 30-day period.

Acceptance of contractor’s quotation confirms that all trees/ bushes listed to be worked on are the property of the Client or, sections to be removed are over the boundary of client’s property, or, property owner has given express permission and permitted access for Contractor’s personnel and machinery to perform the quoted works. If works only apply to overhanging branches that can be pruned from within the Client’s property, tree owner’s permission is not required, however the neighbour should be advised where practicable.

Contractor’s quotation in combination with these terms and conditions 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.

Each party agrees that it shall have no remedies in respect of any statement, representation, assurance, or warranty (whether made innocently or negligently) that is not set out in Contractor’s quotation in combination with these terms and conditions. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in Contractor’s quotation in combination with these terms and conditions.

3 Services
3.1 Fundamentals
Contractor agrees:

a. To undertake and provide the Services in accordance with any brief and deadline agreed with the Client and;
b. To manage and carry out the Services in an expert and diligent manner and to provide his/her services to the best of his/her technical and creative skill and to be solely responsible for how the services are provided;
c. To the best of his/her ability, promptly and faithfully to meet the Deliverables and deadlines agreed with the Client;
d. the Contractor is free to undertake and accept other engagements, except those which lead or might lead to any conflict of interest between the Contractor and the Client during his or her appointment;
e. To use such suitably qualified and experienced personnel as he or she may from time to time deem appropriate;

The Contractor has the right to supply a substitute of equivalent knowledge and expertise and acknowledges that the Client has the right to refuse the replacement if, in the reasonable view of the Client, the replacement is not sufficiently qualified to undertake the work.

Where substitution occurs, the Client will remain responsible for its obligations under the agreement and will be responsible for the payment of the replacement, so that there will be no further payments outside of the agreed terms to pay for any handover period between the original consultant and the replacement.

While the Contractor’s method of working is entirely their own and they are not subject to the control of the Client, they shall nevertheless comply with this and any other reasonable requests of the Client (or its clients) which do not impact upon the Contractor’s method of working.

The Contractors activities may be constrained by ecological and wildlife legislation including but not limited to:

a. Wildlife and Countryside Act 1981
b. Conservation of Habitats and Species Regulations 2019
c. Then Nature and Conservation (Scotland) Act 2004
d. Environmental Protection Act 1990

This legislation requires the Contractor to assess the impact of any works which may affect the natural environment and limits activities in certain circumstances.

Any dimensions within any written or verbal specifications are approximate and, wherever possible will be to the nearest appropriate pruning point.

If the works spread over multiple days, the site will be left appropriately safe and as verbally agreed with the Client beforehand.

3.2 Service Specific Details, Constraints and Terminology
3.2.1 Stump Grinding
If stump grinding has been specified in the quote, the depth will be specified, usually dependent on stated ground usage following removal, all terms used for stump grinding refer to stump and immediate buttress roots, never including any lateral roots unless otherwise clearly specified.

Terms used out with specific measurements on quotations / estimates can be defined as follows:

a. Below Surface / Lawn / ground level: between 5-10cm below immediately adjacent ground level, depth necessary to flatten area and reinstate very shallow rooted plants i.e. grass or installation of slabs etc.
b. To planting depth: as deep as possible / practical given machine and location constraints while minimising damage to surrounding area. Where there is only access for a smaller grinder, absolute maximum grinding depth would be to approximately 28cm below surface level, with a larger grinder, when access allows, this could be to a maximum 35cm depth.
c. Ground out: to be lowered until entire stump at depth has been removed, for larger stumps this would require additional digging and altering of levels around stump to facilitate machine sitting lower and will result in higher-than-normal ground disturbance around stump.

In the event foreign objects such as concrete, metal, large rocky bodies or utilities are discovered in or near stump being ground, causing damage to the machine, this will be chargeable as an additional cost to client. Price is cost of broken equipment/ accessories plus 15%. When such objects are identified and continuing work will cause further damage, client will be consulted as to whether they wish to continue the stump(s) removal and accrue additional costs or leave the stump(s) at depth / level achieved so far, charged at original price plus to date repair costs as calculated above unless agreed otherwise.

3.2.2 Arisings and Waste
All arisings (inc. twigs / branches / woodchips / logs / trunks / foliage etc) will remain unprocessed on site near original tree location unless specifically stated otherwise in the quotation.

Stump grinding mulch (small wood/ soil chunks reduced to a soft mulch following stump grinding services) is left on site, piled on (or near) stump location, unless specifically stated otherwise in the quotation.

Where ‘manageable chunks’ are specified, the timber will be cut to a size that can be moved by an average fit and healthy person, by hand. This includes movement by rolling and does not guarantee sizes which may be lifted off the ground by a single person (please note if Client requires to use this timber for fuelling purposes i.e. in a standard internal wood stove, the pieces will need to be cut significantly smaller following works, contractor have no responsibility or liability for this activity).

3.2.3 Tree or Bush Removals
Where tree or bush removals are stated, this is to near ground level, stump and buttress to remain untreated, unless otherwise specified. ‘Near ground level’ is defined as at least 5cm of the trunk remains above soil level. The stump height is dictated by surroundings, where for example, there is infrastructure / metal / rocks encroaching on the stump, or within the stump, it may be necessary to cut the stump higher to avoid damaging the machinery being used to cut the tree, and/or infrastructure encroaching upon the tree. Where severance of the stump at a lower level involves cutting through, for example, metal wire grown into the tree, the stump will be cut higher to avoid the wire instead.

3.2.4 Finished Site Presentation and Condition
The site will be left generally ‘clean, tidy and safe’ but because of the very nature of the works including the production of wood dust, chainsaw / wood chippings / twigs / leaves and needles etc. and the traversing of site personnel, it is not guaranteed to be ”spotless” or exactly in keeping prior to commencement of works. Sawdust is inevitable and while the bulk of this will be removed, some will remain on any significant works.

Where works are undertaken in adverse weather conditions, or very wet ground conditions, likelihood of damage to surroundings is significantly increased. While every care will be taken to avoid this, it cannot be guaranteed that ground damage will not occur. Any quote acceptance acknowledges this limitation and accept the possibility of some soil disturbance i.e. tracks in lawn, mud, access gateways rutted etc. Epic Tree Care Ltd accept no liability for any such damage.

Epic Tree Care Ltd will not accept liability for ground damage due to weight of machinery, ground mats will be used where practical and necessary, however we are unable to guarantee machinery will not mark or cause sinking of lawn or driveways in the case of soft, wet, old, or poorly laid surfaces.

3.2.5 Day Rate Works
Where “Day Rate” is specified in a quotation the following terms and conditions apply.

Day rate is defined a price for a maximum 7 hours onsite working time for given machinery and/or staff. Any part days are chargeable at full day rate price unless by prior written agreement. Fuelling, minor breakdowns, lunch break etc included within given day rate.

Quantity of days provided is often based on a rough estimate of most efficient machine working time based on contractor’s experience and clients stated work aims but is in no way a guarantee that all works will be completed within this timeframe. Booked dates may be constrained and should works not be completed within this timeframe, there is no guarantee that machine can remain onsite until completion. Any additional days the machine remains on site are chargeable at the same rate as quoted unless expressly agreed elsewhere.

Where major machinery breakdowns occur (defined as a breakdown or cumulative breakdown(s) resulting in a delay more than 2 hours per day) this will necessitate a discounting of day rate in %’s relevant to length of delay unless made up with additional time later in job.

3.2.6 Written Services
Any Local Planning Authority permission or other relevant license applications written on behalf of the Client by Contractor are for works required only without justification unless an accompanying tree survey has been requested. Contractor is not responsible for outcomes and cannot guarantee a specific result. Tree surveys are an unbiased and impartial overview of the trees and Contractor are not able to guarantee findings/outcomes.

4 Client responsibilities
Where works require that machinery is to be used to lift materials over buildings, buildings must be vacated at time of works.
A minimum 72 hours prior to work commencement, the Client will advise the Contractor of:

a. Whether the tree(s) are the subject of a Tree Preservation Order,
b. Whether the trees are located within a Conservation Area.
c. Any issues relating to ownership or access routes which may impact contractor.
d. Any over, or underground utility services in the vicinity of any tree works, stump grinding works, or contractor machinery access routes.

The Contractor shall not be held liable for any damage to anything that have not been declared by the Client prior to works.

The Contractor will consider whether a Felling Licence is required from Scottish Forestry (SF) or if any other permissions / consultations are required, i.e. Scottish Natural Heritage, SEPA etc.

In case of day rate, unless specific work scope has been identified within quote, particulars of works are entirely client’s responsibility. Contractor is there to perform a machinery and operator hire service only and takes no liability for errors in scope, 3rd party issues, licenses or LPA permissions, this is fully and entirely client’s responsibility as contractor is unable to verify due to lack of work scope information. No liability for any client(s) incurred costs or inconvenience due to rescheduling or breakdowns is accepted.

5 Invoices and Payment
Following completion of line works, or per agreed milestones / stages, an invoice will be provided and payment is required within 30 days.

Unsatisfactory completed jobs MUST be immediately notified, in writing / by email, to the Contractor within a maximum period of 48 hours.

Contractor has implemented a cumulative 0.5% charge per day, starting once payment has not been received over 30 days from invoice issuance, unless otherwise agreed in writing. If services go unpaid for excess of 4 months with regular updates, 2 months without any updates, or payment is refused on unreasonable grounds, legal action may be undertaken.

6 Contract Variations, Delays to Works
In the event of a change to the scope of agreed works due to:

a. Client changes to scope
b. Changes in site / ground conditions since the original visit.
c. Additional works requested / required whilst on site.
d. Limitations due to legislative or regulatory restraints, i.e. nesting birds, invasive species identification.

The quotation will be revised accordingly, either electronically, verbally or handwritten with amendments approved by the Client prior to commencement on additional scope.

The Contractor reserves the right to delay or cancel works that:

a. are deemed a potential hazard.
b. are affected by inclement/dangerous weather.
c. interfere with the safe retention of wildlife habitats and protected species.
d. are compromised by unforeseen circumstances/changes.
e. are found to be in breach of any contractor terms and conditions as defined herein.

The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement.

7 Termination of Agreement
Orders placed following receipt of quotation may be cancelled free of charge, subject to the following conditions and exceptions:

• Following works completion, cancellation of order is not possible and 100% of charge applies.
• Cancellation or delay of planned works, prior to completion but within 72 hours of scheduled works date, costs up to maximum 80% order value may be chargeable.
• Cancellation or delay of planned work lines, following work commencement but prior to completion, costs up to maximum 100% order value may be chargeable.

8 Insurance and Health and Safety
The Contractor has Public Liability Insurance, Professional Indemnity Insurance and all relevant vehicle, machinery and employee insurances and qualifications. A copy of the Public Liability certificate is available here[hyperlink]. The Contractor will operate in accordance with good industry practice, their Health & Safety Policy and Procedures and undertake Risk Assessments (the outcomes of which may place constraints on the site whilst works are in progress, i.e. the Client cannot access their shed without prior agreement from ground staff.)

9 Data Protection and Data Processing
Both parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 9 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation. In this Clause Applicable Laws means (for so long as and to the extent that they apply to the Contractor) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.

The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the data controller and the Contractor is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).

Should contractor be instructed to gain any Local Planning Authority permission or other relevant licenses, the Client agrees to the Contractor providing relevant details to the appropriate third parties to complete the application. These details may include but are not limited to:

• Name
• Contact number
• Email address
• Site address
• Photographs of site (if applicable)
• Site details i.e. tree species, quantities, maps, layout, access routes.
  

10 Limitation of Liability
Nothing in this Agreement shall limit or exclude the Contractor’s liability for:

a. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
b. fraud or fraudulent misrepresentation;
c. breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
d. defective products under the Consumer Protection Act 1987; or
e. any matter in respect of which it would be unlawful for the Contractor to exclude or restrict liability.

Following the above, Contractor shall under no circumstances whatsoever be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for:

a. loss of profits
b. loss of sales or business;
c. loss of agreements or contracts;
d. loss of anticipated savings;
e. loss of use or corruption of software,
f. data or information;
g. loss of damage to goodwill;
h. and any indirect or consequential loss,
i. and Contractor’s total liability to the Client,
j. in respect of all other losses arising under or in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Services.

This clause 10 shall survive termination of the Agreement.

11 No Employment or Partnership
The Contractor is an independent contractor and nothing in this Agreement shall render or be deemed to render the Contractor an employee, worker or agent of the Client and the Contractor shall not hold himself or herself out as such. This Agreement does not create any mutuality of obligation between the Contractor and the Client and neither party seeks to create or imply any mutuality of obligation between the parties in the course of the performance of this engagement or during any notice period. The Client is not obliged to offer work to the Contractor, nor is the Contractor obliged to accept work where it is offered.

The Contractor may choose to delegate performance of the Services to such suitably qualified and experienced personnel as he or she may from time to time deem appropriate. The Client has the right to refuse the replacement if, in the reasonable view of the Client, the replacement is not sufficiently qualified to undertake the work. The Contractor must provide details of the name of the delegate/substitute. The Contractor will be responsible for remunerating the delegate/substitute, such that there will be no further payments outside of the agreed terms to pay for any handover period between the Contractor and the delegate/substitute. When a delegate/substitute is appointed, the provisions relating to sub-processor obligations under Clause 9 will apply.

This Agreement constitutes a contract for the provision of services and not a contract of employment and accordingly the Contractor shall be fully responsible for and shall indemnify the Client for and in respect of:

Any income tax, National Insurance and social security contributions and any other liability, deduction, contribution, assessment or claim arising from or made in connection with the performance of the Services, where the recovery is not prohibited by law. The Contractor shall further indemnify the Client against all reasonable costs, expenses and any penalty, fine or interest incurred or payable by the Client in connection with or in consequence of any such liability, deduction, contribution, assessment other than where the latter arise out of the Client negligence or wilful default;

Any liability arising from any employment-related claim or any claim based on worker status (including reasonable costs and expenses) brought by the Contractor or any substitute against the Client arising out of or in connection with the provision of the Services, except where such claim is as a result of any act or omission of the Client.

The Client may at its option satisfy such indemnity (in whole or in part) by way of deduction from any payments due to the Contractor.
Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.

12 Force Majeure
If either party to this Agreement is prevented or delayed in the performance of any of its respective obligations under this Agreement by “force majeure”, then such party shall be excused the performance for so long as such cause of prevention or delay shall continue;
For the purpose of this Agreement ‘force majeure’ shall be deemed to be any cause affecting the performance of this Agreement arising from or attributable to acts, events, omissions or accidents beyond the reasonable control of such party and inter alia including, but not limited to the following:

a. Strikes, lockouts or other industrial action;
b. Terrorism, civil commotion, riot, invasion, war threat or preparation for war;
c. Fire, explosion, storm, flood, earthquake, subsidence, epidemic, pandemic, bad weather or other natural physical disaster;
d. Impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport; and
e. Political interference with the normal operations.

13 Law and Jurisdiction
This Agreement 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 Scotland.

Each party irrevocably agrees that the courts of Scotland shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

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The Contractor reserves the right to make reasonable changes to terms and conditions without the requirement to give the Client prior notice.