Terms and Conditions of Business
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Introduction
These terms and conditions of business set out the general terms under which we undertake our business. The specific conditions relating to particular assignments will be covered in separate letters of engagement.
Please read these terms carefully before you submit you order to us. These terms tell you who we are, how we will provide services to you, how you and we may change or end the contract, what to do if there is a problem and other important information. If you think that there is a mistake in these terms, please contact us to discuss.
You can contact us by telephoning at +44 (0)330 001 0680 / +353 (0)1 270 9863 or by writing to us at 47 — 49 Church Street, Malvern WR14 2AA, UK, at 13 Adelaide Road, Dublin D02 P950, Ireland, or by email at info@davismethod.co.uk
If we have to contact you we will do so by telephone or by writing to you at the email address or postal address you provided to us.
1.1 In these terms and conditions of business the following definitions apply:
Business Day
a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Conditions
means the terms and conditions set out in this document;
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Contract
means the contract between us and you for the supply by us of the Services, which incorporates these Conditions;
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Fee(s):
the amount payable by you for the Services as set out in Schedule 1 Client Services;
Order
means your order for the Services from us, as set out in your written acceptance of our Engagement Letter and Schedule 1 Client Services;
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Specification
means the description or specification of the Services to be provided as set out in Schedule 1 Client Services;
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Value Added Tax or VAT
means value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the sale of the Ancillary Goods;
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we, us or our
means Create-A-Word trading as Davis UK & Ireland, a company incorporated in England and Wales under number 04803526 whose registered office is at 47 – 49 Church Street, Malvern WR14 2AA, UK.
1.2 Paragraph and Schedule headings shall not affect the interpretation of these Conditions.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns.
1.4 The Schedules form part of these Conditions and shall have effect as if set out in full in the body of these Conditions. Any reference to these Conditions includes the Schedules.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 This appointment shall be binding on, and ensure to the benefit of, the parties to this appointment and their respective personal representatives, successors and assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns.
1.8 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.9 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.10 A reference to writing or written includes email.
1.11 References to paragraphs and Schedules are to the paragraphs and Schedules of these Conditions.
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2. Basis of Contract
2.1 When you place an Order for the supply of Services from us, you make a binding offer to purchase those Services in accordance with these Conditions.
2.2 Orders are not binding until accepted by us in writing. Our acceptance of your Order will take place when we issue acceptance in writing, at which point a Contract will come into existence between you and us (“Commencement Date”).
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2.3 We reserve the right at all times to reject any Order, in whole or in part, at our sole discretion. If we are unable to accept your Order, we will inform you of this in writing.
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2.4 We will not accept any variation to these Conditions or an Order unless the variation is expressly agreed by us in writing and signed by a duly authorised signatory on our behalf as confirmed by us by email.
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2.5 If you wish to make a change to the Services ordered please contact us. We will let you know if the change is possible.
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2.6 We may change the Services to reflect changes in relevant laws and regulatory requirements and will notify you in advance of such changes.
3. Provision of Services
3.1 We will provide the Services in accordance with the Specification set out in the Schedule 1 in all material respects.
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3.2 The Services will begin on the Commencement Date and be performed until provision is complete or earlier termination of the Contract.
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3.3 Whilst we will use all reasonable endeavours to meet any dates set out in the Schedule 1 Client Services, such dates are approximate only, and time of performance is not of the essence.
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3.4 We shall not be liable for any delay in or failure of performance of the Services (including any failure to achieve any milestone or other date) so far as caused by an event outside our control (“Force Majeure”) or your failure to perform your obligations under the Contract.
3.5 If our performance of the Services is affected by a Force Majeure event then we will contact you as soon as possible to let you know and we will take steps to minimise the effect of the delay.
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3.6 If we are prevented or delayed in performing the Services by any cause attributable to you, we:
3.6.1 may suspend performance of the Services until you remedy the default;
3.6.2 will not be liable for any costs or losses sustained by you as a result of such suspension;
3.6.3 will be entitled to payment of the Fees despite any such prevention or delay; and
3.6.4 may charge you costs or losses incurred by us arising from your default.
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3.7 We will need certain information from you so that we can provide the Services to you. We will contact you in writing to ask for this information. If you do not, within a reasonable time of us asking for it, provide us with this information, or you provide us with incomplete or incorrect information, we may either end the Contract or make an additional charge of a reasonable sum to compensate us for any extra work that is required as a result. We will not be responsible for providing the Services late or not providing any part of them if this is caused by you not giving us the information we need within a reasonable time of us asking for it.
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3.8 We may have to suspend the Services to:
a) deal with technical problems or make minor technical changes;
b) update the Services to reflect changes in relevant laws and regulatory requirements;
c) make changes to the Services as requested by you or notified by us to you.
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3.9 We will contact you in advance to tell you we will be suspending the Services, unless the problem is urgent. You may contact us to end the Contract if we suspend the Services, or tell you we are going to suspend them, in each case for a period of more than sixty (60) days and we will refund any sums you have paid in advance for Services not provided to you.
3.10 You agree to :
a) co-operate with us in all matters relating to the Services;
b) provide us with such information and materials as we may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects.
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3.11 We warrant that:
a) the Services will be provided with all reasonable skill and care;
b) the Services will comply with the Specifications set out in Schedule 1 Client Services;
c) we have in place all licences, permits and other consents required for the performance of the Services;
d) we comply with all applicable laws and regulations.
4. Fees
4.1 Our Fees are either charged on fixed fees basis or are computed on the basis of time spent on your work, depending on the Services ordered. The Fees for the Services will be as set out in Schedule 1 Client Services or in default of such provision will be calculated on a time and materials basis in accordance with our rates in force on the date of your Order.
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4.2 We may vary our rates and/or prices for Services from time to time, we will notify in you in writing before such variations. Orders accepted by us at the time of notification of fee variations will be fulfilled at the original fees quoted.
4.3 If it is necessary to carry out work outside the responsibilities outlined in the Letter of Engagement and Schedule 1 Client Services it will involve additional Fees. Before carrying out additional services and incurring additional fees, and will see your consent in writing.
4.4 You can either pay for the Services in advance in full or by monthly instalments. Where you pay for the Services in advance you must pay the invoice in full, without deduction prior to commencement date for the supply of the Services. If we agree in writing to allow you to pay for the Services in instalments you must pay each monthly instalment on the agreed date via direct debit/ standing order until the end of the Contract. Time of payment is of the essence.
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4.5 If we agree in writing to allow you to pay for the Services in instalments or in arrears and you fail to make any payment by the due date for payment, then, without limiting our other rights:
a) we may charge interest to you on the overdue amount from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%. You must pay us interest together with any overdue amount;
b) we may suspend all Services until payment has been made in full.
4.6 If you think an invoice is wrong, please contact us promptly to let us know. You will not have to pay any interest until the dispute is resolved. Once the dispute is resolved we will charge you interest on correctly invoiced sums from the original due date.
5. Confidentiality
5.1 All information you share with us will be kept confidential, unless we are required to disclose the confidential information by law or as provided for in regulatory, ethical or other professional pronouncements applicable to our engagement.
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5.2 We will not use your Confidential Information except as required to perform the Services in accordance with our engagement.
6. Limitation of Liability : THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
6.1 Nothing in these Conditions is intended to exclude our liability where consumer protection legislation or contract law prevents us from doing so, including:
i. liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors; or
ii. for fraud or fraudulent misrepresentation.
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6.2 If we fail to comply with these Conditions, we are responsible for loss or damage you suffer that is a reasonable and foreseeable result of our breach of these Conditions, but we are not responsible for any loss or damage that is not foreseeable.
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6.3 Subject to clause 6.1 we will not be liable for:
i. any form of indirect, consequential or special loss; or
ii. any form of pure economic loss, whether any such loss is direct or indirect;
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6.4 Other than as set out above, we limit our total liability (however arising) in respect of or in connection with the Services, and otherwise in connection with the Contract, to the total Fees paid or payable for the Services that are the subject of the Contract.
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6.5 The restrictions on liability in this clause apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
6.6 This clause shall survive termination of the Contract.
7. Termination
7.1 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
7.1.1 the other party commits a material breach, or series of breaches resulting in a material breach, of the Contract and such breach is not remediable or is not remedied within thirty (30) days of written notice to do so;
7.1.2 the other party is subject to a Force Majeure event notified to the other party promptly upon its occurrence that renders the party giving notice of the event unable to perform its obligations under the Contract for period of more than sixty (60) days.
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7.2 Without affecting any other right or remedy available to us, we may terminate the Contract with immediate effect by giving you written notice if:
7.2.1 you fail to pay any amount due under the Contract on the due date for payment;
7.2.2 you do not, within a reasonable time of us asking for it, provide us with information that is necessary for us to provide the Services;
7.2.3 you prevent us for any reason whatsoever to perform the Services.
7.3 If we end the Contract in the situations set out in clause 7.2, we will refund any money you have paid in advance for Services we have not provided but we may deduct reasonable compensation for the net costs we will incur as a result of your breaking the Contract.
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7.4 Once we accept your Order we start performance of the Services, thus, you do not have a right to change your mind as Services will begin. If you pay by instalments and terminate the Contract before we received the full payment, we will invoice for the remainder of the Fees due to be paid immediately in full.
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7.5 You may contact us at any time to end the Contract for the Services, but in some circumstances we may charge you certain sums for doing so.
7.6 If you are ending the Contract for a reason set out below the Contract will end immediately and you will only have to pay for any Services we have performed up to the date of cancellation, we will refund you in full for any Services which have not been provided. The relevant reasons are:
a) the Services may be significantly delayed because of events outside our control; or
b) we suspend the Services or notify you are going to suspend them, in each case for a period of more than sixty (60) days.
7.7 If we are not at fault and you do not have a right to change your mind you can still end the Contract before it is completed, but you may have to pay us compensation. If you want to end a Contract before it is completed where we are not at fault, just contact us to let us know.
7.8 If you are not ending the contract for one of the reasons set out in clause 7.6, where we have started performing the Services and you wish to cancel the Contract, the Contract will end immediately but you will have to pay for any Services we have performed up to the date of cancellation and we may charge you reasonable compensation for the net costs we will incur as a result of your ending the Contract. We will refund any sums paid by you for Services not provided but we may deduct from that refund (or, if you have not made an advance payment, charge you) reasonable compensation for the net costs we will incur as a result of you ending the Contract.
7.9 Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination.
7.10 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
8. Electronic and Other Communication
8.1 Unless you instruct us otherwise, we may, where appropriate, communicate with you and with third parties via email or by other electronic means. The recipient is responsible for virus checking emails and any attachments.
8.2 With electronic communication there is a risk of nonreceipt, delayed receipt, inadvertent misdirection or interception by third parties. We use virusscanning software to reduce the risk of viruses and similar damaging items being transmitted through emails or electronic storage devices. However electronic communication is not totally secure and we cannot be held responsible for damage or loss caused by viruses nor for communications which are corrupted or altered after despatch. These are risks you must bear in return for greater efficiency and lower costs. If you do not wish to accept these risks, please let us know and we will communicate by paper mail.
9. Data Protection
9.1 We are committed to ensuring the protection of the privacy and security of any personal data which we process.
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9.2 We take your privacy and the privacy of the information we process seriously. We will only use your personal information and the personal information you give us access to under the Contract to provide the Services you have requested from us.
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9.3 We will only use your personal information as set out in our Privacy Policy.
10. Force Majeure
10.1 Force Majeure means an event or sequence of events beyond a party's reasonable control preventing or delaying it from performing its obligations hereunder.
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10.2 Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from Force Majeure, provided the affected party:
a) promptly notifies the other of the Force Majeure event and its expected duration; and
b) uses reasonable endeavours to minimise the effects of that event.
11 Assignment and other Dealings
11.1 We may transfer our rights and obligations under these Conditions to another organisation.
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11.2 You may only transfer your rights or your obligations under these Conditions to another person with our prior written consent.
12. Notices
12.1 Notices under the Contract will be in writing or email and sent to the persons and addresses set out in the Order. They may be given, and will be deemed received:
12.1.1 by first-class post: two Business Days after posting;
12.1.2 by airmail: seven Business Days after posting;
12.1.3 by hand: on delivery;
12.1.4 by email: on receipt of a delivery or read receipt mail from the correct address.
13. Rights of Third Parties
13.1 The Contract is between you and us. No other person shall have any rights to enforce any of its terms. The Contract is not enforceable by any third party under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
14. Severability
14.1 Each of the paragraphs of these Conditions operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.
15. Waiver
15.1 No delay, act or omission by either you or us in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
16. Variation
16.1 Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
17. Entire Agreement
17.1 These Conditions, together with the Engagement Letter and attached schedules, constitute the entire agreement between us and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between us, whether written or oral, relating to its subject matter. No other terms apply.
18. Governing Law & Jurisdiction
18.1 The 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. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.