THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 8 (LIMITATION OF LIABILITY).
THE FOLLOWING DEFINITIONS AND RULES OF INTERPRETATION APPLY IN THESE CONDITIONS.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 5 (Charges and payment).
Commencement Date: has the meaning given in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 11.5.
Contract: the contract between DAVE CREED & SONS LTD and the Customer for the supply of Services in accordance with these Conditions.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical measures: as defined in the Data Protection Legislation.
Customer: the person or firm who purchases Services from DAVE CREED & SONS LTD.
Customer Default: has the meaning set out in clause 4.2.
Data Controller: has the meaning set out in section 1(1) of the Data Protection Act 1998.
Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.
Deliverables: the design, labour and materials produced by DAVE CREED & SONS LTD for the Customer.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order: the Customer’s order for Services as set out in the appended Specification.
Services: the services, including the Deliverables, supplied by DAVE CREED & SONS LTD to the Customer as set out in the Specification.
Specification: the description or specification of the Services provided in writing by DAVE CREED & SONS LTD to the Customer.
Supplier: DAVE CREED & SONS LTD registered in England and Wales with company number 07357125.
Supplier Materials: has the meaning set out in clause 4.1(h).
UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
(a) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
(b) Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(c) A reference to writing or written includes faxes and emails.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when DAVE CREED & SONS LTD issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 Any samples, drawings, descriptive matter or advertising issued by DAVE CREED & SONS LTD, and any descriptions or illustrations contained in the DAVE CREED & SONS LTD’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.5 Any quotation given by DAVE CREED & SONS LTD shall not constitute an offer, and is only valid for a period of 30 Business Days from its date of issue.
3. SUPPLY OF SERVICES
3.1 DAVE CREED & SONS LTD shall supply the Services to the Customer in accordance with the Specification in all material respects.
3.2 DAVE CREED & SONS LTD shall use all reasonable endeavours to meet any performance dates specified in the Specification, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 DAVE CREED & SONS LTD reserves the right to amend the specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and DAVE CREED & SONS LTD shall notify the Customer in any such event.
3.4 DAVE CREED & SONS LTD warrants to the Customer that the Services will be provided using reasonable care and skill.
4. CUSTOMER’S OBLIGATIONS
4.1 The Customer shall:
(a) ensure that the terms of the Order and any information it provides in the Specification are complete and accurate;
(b) co-operate with DAVE CREED & SONS LTD in all matters relating to the Services;
(c) provide DAVE CREED & SONS LTD, its employees, agents, consultants and subcontractors, with access to the Customer’s property as reasonably required by DAVE CREED & SONS LTD;
(d) provide DAVE CREED & SONS LTD with such information and materials as DAVE CREED & SONS LTD may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
(e) prepare the Customer’s property for the supply of the Services;
(f) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
(g) comply with all applicable laws, including health and safety laws;
(h) keep all materials, equipment, documents and other property of DAVE CREED & SONS LTD (Supplier Materials) at the Customer’s property in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to DAVE CREED & SONS LTD, and not dispose of or use DAVE CREED & SONS LTD Materials other than in accordance with DAVE CREED & SONS LTD’s written instructions or authorisation;
(i) comply with any additional obligations as set out in the Specification;
(j) to notify those with access to the works area set out in the Specifications of the scheduled operations of Dave Creed & Sons Limited.;
(k) to restrict the access of those with a right to pass and re-pass over the works area for the duration of the works ;
(l) indemnify Dave Creed & Sons Limited against all and any costs flowing from third parties with rights of access to the works area doing so where this results in damage or delay to the works.; and
4.2 If DAVE CREED & SONS LTD’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) without limiting or affecting any other right or remedy available to it, DAVE CREED & SONS LTD shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays DAVE CREED & SONS LTD’s performance of any of its obligations;
(b) DAVE CREED & SONS LTD shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from DAVE CREED & SONS LTD’s failure or delay to perform any of its obligations as set out in this clause 4.2; and
(c) the Customer shall reimburse DAVE CREED & SONS LTD on written demand for any costs or losses sustained or incurred by DAVE CREED & SONS LTD arising directly or indirectly from the Customer Default.
5. CHARGES AND PAYMENT
5.1 The Charges for the Services shall be calculated on a time and materials basis:
(a) the Charges shall be calculated in accordance with DAVE CREED & SONS LTD’s fee rates, as set out in the Price Schedule incorporated or appended to the Specifications;
(b) DAVE CREED & SONS LTD’s fee rates are calculated on the basis of an eight-hour day from 8.00 am to 5.00 pm worked on Business Days;
(c) DAVE CREED & SONS LTD shall be entitled to, but cannot be obliged to work longer hours than that stated above at 5.1.(b), including travel time from DAVE CREED & SONS LTD premises to the works area; and
(d) DAVE CREED & SONS LTD shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom DAVE CREED & SONS LTD engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by DAVE CREED & SONS LTD for the performance of the Services, and for the cost of any materials.
5.2 DAVE CREED & SONS LTD shall invoice a deposit payment upon agreement to Contract for 25% of the Contract price.
5.3 DAVE CREED & SONS LTD shall invoice the Customer on completion of the Services.
5.4 The Customer shall pay each invoice submitted by DAVE CREED & SONS LTD:
(a) within 7 days of the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by DAVE CREED & SONS LTD, and time for payment shall be of the essence of the Contract.
5.5 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by DAVE CREED & SONS LTD to the Customer, the Customer shall, on receipt of a valid VAT invoice from DAVE CREED & SONS LTD, pay to DAVE CREED & SONS LTD such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.6 If the Customer fails to make a payment due to DAVE CREED & SONS LTD under the Contract by the due date, then, without limiting DAVE CREED & SONS LTD’s remedies under Clause 9, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this Clause 5.6 will accrue each day at the monthly rate of 4% above the Bank of England’s base rate from time to time, but at 4% a month for any period when that base rate is below 0%.
5.7 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
6. INTELLECTUAL PROPERTY RIGHTS
6.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by DAVE CREED & SONS LTD.
6.2 The Customer grants DAVE CREED & SONS LTD an unrestricted right to make use of images or descriptions created in the provision of the Specifications in advertising materials.
7. DATA PROTECTION
7.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 7 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation. In this Clause 7, Applicable Laws means (for so long as and to the extent that they apply to the Supplier) 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.
7.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the controller and the Supplier is the processor.
7.3 Without prejudice to the generality of Clause 7.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Supplier for the duration and purposes of the Contract.
7.4 The Customer does not consent to the Supplier appointing any third party processor of personal data under the Contract.
7.5 Either party may, at any time on not less than 30 days’ notice, revise this Clause 7 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).
8. LIMITATION OF LIABILITY: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
8.1 DAVE CREED & SONS LTD has obtained insurance cover in respect of its own legal liability for individual claims not exceeding £10,000,000 per claim. The limits and exclusions in this clause reflect the insurance cover the Supplier has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess loss.
8.2 The restrictions on liability in this Clause 8 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
8.3 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
8.4 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
8.5 Subject to clause 8.4, DAVE CREED & SONS LTD total liability to the Customer shall not exceed £15,000.
8.6 This Clause 8.6 sets out specific heads of excluded loss and exceptions from them:
(a) Subject to Clause 8.2, the types of loss listed in Clause 8.8(c) are wholly excluded by the parties, but the types of loss and specific losses listed in Clause 8.8(d) are not excluded.
(b) If any loss falls into one or more of the categories in Clause 8.8(c) and also falls into a category, or is specified, in Clause 8.8(d), then it is not excluded.
(c) The following types of loss are wholly excluded:
(i) loss of profits
(ii) loss of sales or business.
(iii) loss of agreements or contracts.
(iv) loss of anticipated savings.
(v) loss of or damage to goodwill; and
(vi) Indirect or consequential loss.
(d) The following types of loss and specific loss are not excluded:
(i) sums paid by the Customer to the Supplier pursuant to the Contract, in respect of any Services not provided in accordance with the Contract.;
(ii) wasted expenditure;
(iii) additional costs of procuring and implementing replacements for, or alternatives to, Services not provided in accordance with the Contract. These include but are not limited to consultancy costs, additional costs of management time and other personnel costs, and costs of equipment and materials;
(iv) losses incurred by the Customer arising out of or in connection with any third party claim against the Customer which has been caused by the act or omission of the Supplier. For these purposes, third party claims shall include but not be limited to demands, fines, penalties, actions, investigations or proceedings, including but not limited to those made or commenced by subcontractors, the Supplier’s personnel, regulators and customers of the Customer; and
8.7 The Supplier has given commitments as to compliance of the Services with relevant specifications in Clause 3. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
8.8 Unless the Customer notifies the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire 76 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
8.9 This Clause 8 shall survive termination of the Contract.
9.1 Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party one month’s written notice.
9.2 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:
(a) the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
9.3 Without affecting any other right or remedy available to it, DAVE CREED & SONS LTD may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
9.4 Without affecting any other right or remedy available to it, DAVE CREED & SONS LTD may suspend the supply of Services under the Contract or any other contract between the Customer and DAVE CREED & SONS LTD if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 9.2(b) to clause 9.2(d) or DAVE CREED & SONS LTD reasonably believes that the Customer is about to become subject to any of them.
10. CONSEQUENCES OF TERMINATION
On termination of the Contract:
(a) the Customer shall immediately pay to DAVE CREED & SONS LTD all of DAVE CREED & SONS LTD’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, DAVE CREED & SONS LTD shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the Customer shall return all of DAVE CREED & SONS LTD Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then DAVE CREED & SONS LTD may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
10.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
10.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
11.1 The cancellation rights detailed by the Consumer Contract (Information, Cancellation and Additional Charges) Regulations 2013 apply to this Contract.
11.2 The Customer may cancel the Contract by giving written notice to DAVE CREED & SONS LTD at any point during the period of 14 days after the date of the Contract being formed.
11.3 In the event that the Customer requests the Contract be commenced or completed within the 14 day cancellation period the Customer is obliged to pay for such proportion of the Deliverables as have been provided to the Customer at the date of the cancellation notice being served.
12.1 Force majeure. 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 events, circumstances or causes beyond its reasonable control.
12.2 Assignment and other dealings.
(a) DAVE CREED & SONS LTD may at any time assign, subcontract, delegate, or deal in any other manner with any or all of its rights and obligations under the Contract.
(b) The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract.
(a) Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 11.3(b).
(b) Each party may disclose the other party’s confidential information:
(i) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 11.3; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
12.4 Entire agreement.
(a) The Contract 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.
(b) Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
(c) Nothing in this clause shall limit or exclude any liability for fraud.
12.5 Variation. 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).
12.6 Waiver. 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 default. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
12.7 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
(b) Any notice or other communication shall be deemed to have been received:
(i) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(ii) if sent by pre-paid first class post or other next working day delivery service, at 12.00 pm on the second Business Day after posting or at the time recorded by the delivery service; or
(iii) if sent by fax or email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this Clause 11.8(b)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
12.9 Third party rights.
(a) Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
(b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
12.10 Governing law. 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.
12.11 Jurisdiction. 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.