Terms and Conditions of Membership
1. APPLICATION
1.1 These
terms and conditions shall apply to the provision of Membership services by
TGG to the Member. By registering to receive or by using the
Membership services the Member confirms that they have read, understood and
agreed to these Terms and Conditions.
1.2 In
the event of conflict between these Terms and Conditions and any other terms
and conditions (of the Member or otherwise), the former shall prevail unless
expressly otherwise agreed by TGG in writing.
1.3 Any
terms (whether conditions, warranties or other terms) which would otherwise
be implied by statute, common law, custom, course of dealings, or the
circumstances of the Member’s use are, to the maximum amount permissible by
law, excluded.
1.4 TGG reserves the right to
alter or amend these Terms and Conditions at their discretion. The client
will be notified in writing of any significant changes as soon as is
reasonably practicable.
2. DEFINITIONS AND
INTERPRETATION
In these Terms and Conditions, unless the context otherwise requires, the
following expressions have the following meanings:
“Business Day”
means a day (excluding Saturdays) on which banks generally are open for the
transaction of normal banking business (other than solely for trading or
settlement in Euros);
“Member”
means any individual, firm or corporate body (which expression shall, where
the context so admits, include its successors and assigns) which purchase
Membership services from TGG;
“Commencement Date”
means the commencement date for the agreement as set out in the Schedule;
“Fees”
means the fees payable by the Member under Clause 7
in accordance with the Terms of Payment;
“Membership”
means the services to be provided by TGG to the Member as specified by TGG;
“TGG”
means The Gardeners Guild LLP (Registered Number OC323424) whose registered
office is 34 Boulevard, Weston super Mare, BS23 1NF. Write to The Gardeners
Guild, PO Box 627, Weston Super Mare, BS23 9LP.
“The Mark”
means TGG trademarked logo.
“Subscription Period” means
the period of time that Membership services are provided to the Member as
set out in the Schedule.
“Terms of Payment”
means the terms of payment of Fees as set out in the Schedule.
2.1
Unless the context otherwise requires, each reference in these Terms and
Conditions to:
2.1.1 “writing” and any cognate
expression, includes a reference to any communication effected by electronic
or facsimile transmission or similar means;
2.1.2 a
statute or provision of a statute is a reference to that statute or
provision as amended or re-enacted at the relevant time;
2.1.3
“these Terms and Conditions” is a reference to these Terms and Conditions
and any Schedules as amended or supplemented at the relevant time;
2.1.4 a
Schedule is a schedule to these Terms and Conditions; and
2.1.5 a
Clause or paragraph is a reference to a Clause of these Terms and Conditions
(other than these Schedules) or a paragraph of the relevant Schedule.
2.1.6 a
“Party” or the “Parties” refer to the parties of these Terms and
Conditions.
2.2
The headings used in these Terms and Conditions are for convenience only and
shall have no effect upon the interpretation of these Terms and Conditions.
2.3
Words imparting the singular number shall include the plural and vice versa.
2.4
References to any gender shall include the other gender.
3.0 MEMBERSHIP, ACCEPTANCE
AND RENEWAL
3.1 Membership is
for individuals who meet the entry criteria and who are responsible for the
activities of the business they trade under.
3.2 Membership is
only available to businesses that carry out a significant proportion of
their business within the geographical boundaries of TGG, currently the UK.
3.3 An
application for Membership by a new Member must be made on the appropriate
form provided by TGG.
3.4 New
applicants must satisfy the acceptance criteria at the time of application
and submit any evidence requested by TGG.
3.5 TGG is a for
profit, privately owned commercial service provider and Members have no
voting rights or shares in TGG.
3.6 The Member
must not pass themselves off as an employee of TGG or make or publish
statements that could be taken to represent the views of TGG.
3.7 Applicants
must send evidence for all qualifications and experience they claim to have.
If you rely on references to prove experience, you must have consent from
the referee for us to contact them and you must provide us with their
contact details.
3.8 TGG
reserves the right to refuse Membership to any applicant. TGG’s decision
shall be final.
3.9
Membership of TGG is not transferable
4. DURATION
4.1 This
Agreement shall be for a fixed term specified in the Schedule (“Subscription
Period”) commencing on the Commencement Date. You are committed to the full
term of the agreement.
5.0 COLLECTIVE
TRADEMARK REGULATIONS
5.1 The persons authorised
to use the Mark;
a)
Only currently subscribed Members can use the
Mark.
b)
The Mark may also be used by TGG and third-party
partners, when given written permission by TGG to do so, for promotional and
representational purposes only.
5.2
The conditions of standard
membership
1.
Have at least one nationally
recognised
horticultural qualification equal to Level
2 Certificate or above and,
2.
Be self-employed and the proprietor of the
business they trade as or a Partner or Director of that business and,
3.
Be at least 18 years old and,
4.
Include garden maintenance as part of their
services and,
5.
Be primarily dedicated to horticulture or a trade
related to horticulture.
5.2.1 Existing
Members who do not meet these criteria but were accepted for Membership
before this entry criteria was introduced are permitted to use the Mark
provided their Subscription Period is continuous and uninterrupted.
5.3 Conditions
of use of the Mark
5.3.1 The Mark
should only be used by members to indicate membership of TGG.
5.3.2 The Mark
can be used in the following ways:
a)
On a Members business stationery (e.g.
letterheads),
b)
In a Members advertising or promotional literature
including social media,
c)
On a Members relevant commercial website,
d)
On a Members business premises and vehicles,
e)
Other ways only with written permission by TGG.
5.3.3
The Mark should not be more prominent than the Members own business logo or
trading name.
5.3.4
The Mark should not be used in isolation.
5.3.5 Use of the
Mark should not imply that the Member is working for or on behalf of TGG.
5.3.6
Use of the Mark should not imply that the member is a shareholder of TGG.
5.3.7 In the case
of approval limited to a specific location, branch or branches, the Mark
shall not be used in a way which implies approval of the whole organisation.
5.3.8 Acceptance
for Membership of TGG does not indicate in any way that all of the
businesses products or services comply fully with the law. No implication to
this effect must be made in any promotional material.
5.3.9 The Mark
should not be altered in any way as to be misleading or give undue emphasis
to any aspect.
5.3.10 The Mark must only be produced in
the official colour (or as close to it as is reasonably possible to the
satisfaction of TGG) or in greyscale (black & white) for a single colour
print.
5.3.11
The Mark must not be redrawn, reshaped or altered in any way.
5.3.12 When a
Member, permission is only given for the following statements to be used in
connection with your Membership:
a)
Gardeners Guild Member
b)
Member of The Gardeners Guild
c)
Registered Member of The Gardeners Guild
d)
Accepted member of The Gardeners Guild
e)
(If a Consultant Member) Consultant Member of The
Gardeners Guild (abbreviated to CMTGG)
f)
Other statements publicising your membership of
TGG can only be used with the express written permission of TGG.
5.3.13
Some statements are not acceptable for use. Some examples are listed below,
this is not a definitive list:
a)
Recommended by The Gardeners Guild.
b)
Approved by The Gardeners Guild.
c)
Working with or in conjunction with or in
association with The Gardeners Guild.
d)
Consultant to The Gardeners Guild
e)
The Gardeners Guild Consultant.
5.3.14
It is a condition of use that the Mark shall not be used without indicating
that it is a collective mark.
5.3.15 When
Membership ends for any reason, permission to use the Mark is revoked with
immediate effect.
5.3.16 Members are not obliged to display
the Mark.
5.4
Sanctions against misuse of
the Mark
5.4.1
Members who misuse the Mark will be given
reasonable time to rectify their mistake to the satisfaction of TGG up to a
maximum of 30 days.
5.4.2 Failure to
rectify misuse of the Mark within a reasonable time will result in
Membership being suspended until;
a)
The Member corrects their use of the Mark
according to these terms or
b)
Their annual Membership expires, whichever comes
first.
5.4.3
Unsubscribed Members will be given reasonable time to remove the Mark from
their assets (such as those listed in clause 5.3.2) up to a maximum of 30
days.
5.4.4
Non-Members and unsubscribed former Members who do not remove the Mark from
their assets within a reasonable time will be reported to trading standards
or other relevant authorities.
6. MEMBERSHIP
SERVICES
6.1
With effect from the Commencement date TGG shall in consideration of the
Fees being paid in accordance with the Terms of Payment, provide the
Membership services to the Member.
6.2
Delivery shall comprise the allocation to the Member of the permissions and
passwords necessary to enable access to Membership services.
6.3
TGG will use reasonable care and skill to perform
the Membership services.
6.4 TGG
shall use all reasonable endeavours to complete its obligations under these
Terms and Conditions, but time will not be of the essence in the performance
of these obligations.
6.5
Membership services including, without limitation, any passwords that may be
issued to access web based versions of Membership services, and any
electronic material that is thereby accessed by the Member (“The Material”)
are protected by copyright and other intellectual property rights which are
either owned by TGG, or owned by third parties and licensed to TGG. The
rights in the Membership services and Material will remain the property of
TGG and the relevant licensors, and the Member will not acquire any rights
or interests to or in part of them.
6.6 TGG grants to
the Member a non-exclusive, non-transferable license to use the Membership
services and the Material for the purposes of its own business. The
Membership services and Materials may include terms of use and copyright
notices issued by information providers who own intellectual property rights
in their Material. In using the Membership services, the Member
accepts full responsibility and liability for ensuring that they and their
employees fully comply with these terms and notices.
6.7 The
Membership services and Material is limited on the Schedule to the named
Member. The Member shall not make the Membership services or Material
available in any way or form to any other persons, unless and to the extent
that this is expressly authorised by TGG. The Member agrees that the
end user shall at all times be the employees of the Member correctly
authorised to use the Membership services, and it shall be responsible for
taking all reasonable steps to ensure that employees comply with the terms
of this license and do not at any time exceed authorised numbers. The
Member accepts full responsibility and liability for breaches of limitations
of use made by its employees, and that which results from unauthorised
access.
6.8
The Member and any authorised end users may view and print out the Material
and may copy text from the Material and paste it into the Member’s own
documents provided that:
a)
all copying, whether hard copy or electronic,
complies with the stated copyright policy of the owner of the relevant
Material, and no copies are made where this is prohibited by the owner of
the relevant Material may not be copied;
b)
documents or other texts included in the Material
are copied without changing the original meaning of the Material;
c)
The Member shall clearly acknowledge the identity
of the copyright owner(s) of the copied Material in or on any document or
other material to which they are copied and the Member may not claim any
intellectual property rights in anything contained in the Material; and
d)
each document into which sections of the Material
are pasted is for use by the Member in the course of its own business and is
not supplied (or otherwise made available) to any third party for re-use or
re-sale. The Member may store only such electronic copies of the
material as is necessary in all the circumstances to enable it to use the
Membership services in accordance with this Agreement.
6.9 The
Member may not make any use of the Membership services and Material except
as expressly authorised in this agreement. In particular, without
limitation, the Member shall not, and shall take steps to ensure that its
employees do not:
a)
modify, alter or adapt the Membership services or
the Material or any underlying software;
b)
copy, disclose or otherwise use any part of the
Material or any passwords issued to the Member otherwise than expressly
permitted in this Agreement;
c)
translate or decompile any computer program used
for Membership services or any website used for the delivery of Membership
services, nor combine or incorporate any such computer program with or in
any other;
d)
use the Membership services, facilities or the
Material in the production of anything that is, in the opinion of TGG,
defamatory, blasphemous, fraudulent, obscene, lewd or unlawful; or
e)
use the Membership services, facilities or the
Material for the communication of anything that, in the opinion of TGG,
includes personal insults, foul language, hate speech, abuse or harassment.
f)
use the Membership services, facilities or the
Material in a manner that is, in the opinion of TGG, libellous or in a way
that is otherwise threatening, abusive, violent, malicious or harmful to any
person or entity, or invasive of another's privacy; or
g)
sell, assign, transfer, mortgage, lend or pass on
to any person any of the Membership services or the Material, or purport to
do so, or provide access to any of them or any copy of any of the Material;
or
h)
use the Membership services or facilities to
advertise, sell or promote business to business services or third-party
products or other direct marketing to other users of the Membership services
without approval from TGG; or
i)
make wasteful, unreasonable or excessive demands
of a Membership service.
j)
use our websites in any way that causes, or may
cause, damage to the website or impairment of the availability or
accessibility of the website; or in any way which is unlawful, illegal,
fraudulent, or harmful, or in connection with any unlawful, illegal,
fraudulent, or harmful purpose or activity; or
k)
misuse the website or its services, such as
interfering with or accessing the website or its services using a method
other than what is explicitly provided; or
l)
use the Membership services or facilities for
political campaigning unless directly related to horticulture.
6.10
The scope of the license granted hereunder, including the number of end
users or sites that may be authorised to use the Membership services or any
of them, may be extended upon the Member’s request (and TGG agreement to
that request in writing) and subject to the payment of additional charges to
be agreed between the parties. Any extensions requested shall be
granted at TGG’s absolute discretion and may be refused without giving a
reason.
6.11 Representatives
of TGG may visit the Member’s premises at any reasonable time to verify the
Member’s compliance with this Agreement. The Member shall at all times
keep accurate and up to date details of the individual end users to whom at
any given time it has permitted access to Membership services and Material.
6.12 Where
TGG has issued permissions, membership numbers and passwords for the purpose
of accessing the Membership services, the Member shall effect and maintain
adequate security measures to restrict use of those permissions and
passwords, and shall prevent unauthorised use of Membership services through
the Member’s facilities, which it shall monitor regularly.
6.13 Where
TGG makes a referral for a third party product or service and that results
in a contractual arrangement between a Member and the third party we reserve
the right to receive a bonus or commission.
7. FEES
7.1
The Member agrees to pay the Fees in accordance with the Terms of Payment.
7.2
In addition TGG shall be entitled to recover from the Member his reasonable
incidental expenses for materials used and for third party goods and
services supplied in connection with the provision of Membership services.
7.3
The Member will pay TGG for any additional services provided by TGG that are
not specified in the Schedule and which has not been agreed in writing with
the Member in accordance with TGG’s then current, applicable daily rate in
effect at the time of the performance or such other rate as may be agreed.
Any charge for additional services will be supplemental to the amounts that
may be due for expenses.
7.4
All sums payable by either Party pursuant to these Terms and Conditions are
exclusive of any value added or other tax (except corporation tax) or other
taxes on profit, for which that Party shall be additionally liable.
7.5 No refunds,
either full, partial or pro rata will be authorised if the Member cancels
their subscription for Membership within the Subscription Period after the
statutory cooling off period.
8. PAYMENT
8.1 All
payments required to be made pursuant to these Terms and Conditions by
either Party shall be made within 30 days of the Commencement Date as set
out in the Schedule in GBP in cleared funds to such bank in the United
Kingdom as the other Party may from time to time nominate, without any
set-off, withholding or deduction except such amount (if any) of tax as that
Party is required to deduct or withhold by law.
8.2 No payment
shall be deemed to have been received until TGG has received cleared funds.
8.3 The
time of payment shall be of the essence. If the Member fails to make
any payment on the due date TGG shall, without prejudice to any right which
TGG may have pursuant to any statutory provision in force from time to time,
have the right to charge the Member interest on a daily basis at an annual
rate aggregate of 4% and the base rate of HSBC Bank from time to time on any
sum due and not paid on the due date. Such interest shall be
calculated cumulatively on a daily basis and shall run from day to day and
accrue after as well as before any judgment.
8.4 Fees paid to
TGG for Membership services are non-refundable after the statutory
cooling-off period.
9. VARIATION AND AMENDMENTS
9.1 If the Member
wishes to vary any details of the Schedule he must notify TGG in writing as
soon as possible. TGG shall endeavour to make any required changes and
any additional costs thereby incurred shall be invoiced to the Member.
9.2 If, due
to circumstances beyond TGG’s control, it has to make any change in the
arrangements relating to the provision of Membership services it shall
notify the Member as soon as is reasonably practicable. TGG shall
endeavour to keep such changes to a minimum and shall seek to offer the
Member arrangements as close to the original as is reasonably possible in
the circumstances.
9.3 TGG reserves the right to alter the
look and feel of web-based versions of the Membership services.
Where the value or functionality of
Membership services is improved and classified as an upgrade by TGG then TGG
reserves the right to increase the Fees payable in respect of affected
Membership services at any stage during the term of this Agreement.
Changes shall be notified on 30 days notice.
9.4 TGG reserves
the right to alter the design of the Mark. Replacing the Mark anywhere
displayed by the Member will be at the Members own expense.
9.5 TGG reserves
the right to edit, omit or restrict any information submitted for
publishing.
9.6
It is the Members responsibility to notify TGG immediately of any changes so
that our records are always kept up-to-date and accurate.
10. TERMINATION
10.1
TGG may terminate the agreement immediately if:
10.1.1 the
Member is in breach of any of his obligations hereunder;
10.1.2 the
other Party has entered into liquidation (other than for the purposes of a
bona fide amalgamation or reconstruction) whether compulsory or voluntarily
or compounds with his creditors generally or has an administrator,
administrative receiver or receiver appointed over all or a substantial part
of his undertakings or assets;
10.1.3 the
Member has become bankrupt or shall be deemed unable to pay his debts by
virtue of Section 123 of the Insolvency Act 1986;
10.1.4 the
Member ceases or threatens to cease to carry on business; or
10.1.5 any
circumstances whatsoever beyond the reasonable control of either Party
(including but not limited to the termination of Membership through no fault
of either Party) arise that necessitate for whatever reason the termination
of the provision of services,
10.1.6
there is a Civil court judgement against the Member,
10.1.7 the
Member is found to have unspent criminal convictions,
10.1.8
there are changes in relevant circumstances for the Member which may affect
its approval. These may include, but are not limited to; changes to senior
staff, changes of suppliers, new product or service lines or new premises,
10.1.9 the
Member knowingly and deliberately contravenes any Act of Parliament, code of
conduct, standards or guidance issued by relevant authorities,
10.1.10 the
Member has made a false or misleading statement to TGG in their application
for Membership or any subsequent amendments,
10.1.11
information is supplied by a regulatory agency (or similar) which casts
doubt upon the suitability of any particular Member,
10.1.12
there is suitably serious complaint about the Member that is likely to
damage the reputation of TGG and its members,
10.1.13 the
Member does not have suitable professional indemnity and/or public liability
business insurance appropriate for their commercial activities when a claim
is made against the Member,
10.1.14 the
Member fails to notify TGG of any of the above.
10.2
TGG may decide to suspend access to Membership services until such time as a
full investigation can be concluded. It may also suspend the supply of
Membership services in order to monitor whether a particular business
remains suitable for Membership.
10.3 As an
alternative to suspension or Termination of Membership TGG reserves the
right, where TGG considers appropriate, to implement other disciplinary
measures (for example, a written warning).
10.4 No
refund of fees paid to TGG, either full, partial or pro rata will be
authorised if this agreement is terminated within the Subscription Period by
TGG because the Member is in breach of any of his obligations in this
agreement.
10.5
When Membership is terminated for any reason, you agree to destroy all
promotional documentation indicating membership within 30 days of your
Membership ending.
This may result in your business having to amend
adverts, vehicle livery, stationary or other assets such as those listed in
clause 5.3.2.
11.
SUB-CONTRACTING
11.1 Either Party
may sub-contract the performance of any of its obligations under these Terms
and Conditions without the prior written consent of the other Party.
Where either Party sub-contracts the performance of any of its obligations
under these Terms and Conditions to any person with the prior consent of the
other Party, that Party shall be responsible for every act or omission of
the sub-contractor as if it were an act or omission of the Party itself.
12. LIABILITY AND
INDEMNITY
12.1
Except in respect of death or personal injury caused by TGGs negligence, TGG
will not by reason of any representation, implied warranty, condition or
other term, or any duty at common law or under the express terms contained
herein, be liable for any loss of profit or any indirect, special or
consequential loss, damage, costs, expenses or other claims (whether caused
by TGG’s servants or agents or otherwise) in connection with the performance
of its obligations under these Terms and Conditions or with the use by the
Member of the Membership services supplied.
12.2 The
Member shall indemnify TGG against all damages, costs, claims and expenses
suffered by TGG arising from loss or damage to any equipment (including that
of third parties) caused by the Member, or his agents or employees.
12.3 TGG
shall not be liable to the Member or be deemed to be in breach of these
terms and conditions by reason of any delay in performing, or any failure to
perform, any of TGGs obligations if the delay was due to any cause beyond
TGGs reasonable control.
12.4 The
Member shall hold harmless and indemnify TGG and its officers, employees and
subcontractors from and against all actions proceeding cost, claims,
liabilities and losses (including legal costs) including indirect or
consequential loss (including loss of revenue or profit or loss or liability
in respect of any third party claim) arising out of:
a)
Any claim or allegation that the Member or TGG (as
the case may be) is in breach of any of its obligations hereunder; and
b)
Any claim made against TGG arising out of the
publication of any advertisement; and
c)
Any dispute between the Member and their customer.
d)
The Termination of your Membership for any reason
and the subsequent withdrawal of permissions under this agreement.
12.5
The advice given as part of the Membership services is of a general nature
and is provided for general guidance and assistance and should not be relied
upon. If in doubt, seek professional advice.
12.6 Adherents of
any advice offered by TGG does not infer compliance with any legislation or
laws of the land.
13. FORCE MAJEURE
13.1 Neither the
Member nor TGG shall be liable for any failure or delay in performing their
obligations under these Terms and Conditions where such failure or delay
results from any cause that is beyond the reasonable control of that Party.
Such causes include, but are not limited to: power failure, Internet Service
Provider failure, industrial action, civil unrest, fire, flood, storms,
earthquakes, acts of terrorism, acts of war, government action or any other
event that is beyond the control of the Party in question.
14. WAIVER
14.1 No waiver by
TGG or any breach of these Terms and Conditions by the Member shall be
considered as a waiver of any subsequent breach of the same or any other
provision. A waiver of any term, provision or condition of these Terms and
Conditions shall be effective only if given in writing and signed by the
waiving Party and then only in the instance and for the purpose for which
the waiver is given.
14.2
Failure or delay of
TGG
to enforce any provision of these Terms and Conditions shall not constitute
or be construed as a waiver of such provision or the right to enforce such
provision.
15. SEVERANCE
15.1 The Parties
agree that, in the event that one or more of the provisions of these Terms
and Conditions are found to be unlawful, invalid or otherwise unenforceable,
that / those provisions shall be deemed severed from the remainder of these
Terms and Conditions. The remainder of these Terms and Conditions shall be
valid and enforceable.
16. COPYRIGHT
16.1 TGG reserves
all copyright and any other rights (if any) which may subsist in the
products of, or in connection with, the provision of the Membership services
or facilities. TGG reserves the right to take such actions as may be
appropriate to restrain or prevent infringement of such copyright.
17. NOTICES
17.1 All notices
under these Terms and Conditions shall be in writing and be deemed duly
given if signed by, or on behalf of, a duly authorised officer of the Party
giving the notice.
17.2 Notices shall be deemed to have been
duly given:
17.2.1
when delivered, if delivered by courier or other messenger (including
registered mail) during normal business hours of the recipient; or
17.2.2 when
sent, if transmitted by fax or e-mail and a successful transmission report
or return receipt is generated; or
17.2.3 on the
fifth business day following mailing, if mailed by national ordinary mail,
postage prepaid; or
17.2.4 on the tenth business day following
mailing, if mailed by airmail, postage prepaid. In each case addressed to
the most recent address, e-mail address, or facsimile number notified to the
other Party.
17.3
Service of any document for the purpose of any legal proceedings concerning
or arising out of these Terms and Conditions shall be effected by either
Party by causing such document to be delivered to the other Party at its
registered or principal office, or to such other address as may be notified
to one Party by the other Party in writing from time to time.
18.0 FREEDOM OF
INFORMATION ACT 2000 DISCLOSURE OF INFORMATION
18.1 You agree
that where reasonable, information about the status of your membership may
be disclosed to interested parties including the general public. This
information may include (but is not limited to) details of compliments
and/or complaints received. All such information will be handled sensitively
and consideration will be given to the interests of the business as well as
the integrity of TGG.
19.0 LAW AND JURISDICTION
19.1 These Terms
and Conditions shall be governed by the laws of England and Wales.
19.2 Any dispute
between the Parties relating to these Terms and Conditions shall fall within
the jurisdiction of the courts of England and Wales.