Business Terms & Conditions

Version 1.1 Updated 25 March 2024.

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David & Co. Standard Terms & Conditions

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These Standard Terms and Conditions ("Terms") govern the provision of services by David & Company (Birmingham Ltd) ("David & Co.", "we", "us") to you ("Client", "you"). These Terms form part of the Agreement between David & Company and the Client and may be supplemented by a Letter of Engagement ("Letter") for specific projects or engagements.

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This Agreement and the enclosed Terms of Conditions represent the whole agreement between the parties and can only be varied by written agreement signed by each of us expressly referring to this Agreement

 

1. FEES

a) All rates and fees are exclusive of VAT, which will be charged at the prevailing rate.

b) Fee to be inflation-indexed on an annual basis.

c) All fees will be explicitly outlined in the letter of engagement.

d) The Client shall pay David & Co. the fees detailed in Annex II, exclusive of VAT and disbursements.

e) Disbursements exceeding £100.00 require prior written approval. Upon Agreement signing, David & Co. will invoice the first month’s fee and therefore, after, will be raised monthly on the 1 and are payable within 14 days of receipt.

f) Non-Fees related costs: Costs other than Fees are Non-Fees related costs and relate to all marketing activities and third-party costs, including but not limited to media, online search, production and research costs.

g) All Non-Fees related costs will be treated as pass-through costs by David & Co., ie with no mark-up, and will be invoiced to the Client at 100% of the estimated total cost upon receipt of prior written approval from the Client of the estimated total cost of marketing related activities and will be paid by the Client in sufficient time so that David & Co. has the funds in hand by the payment dates of such approved marketing related activities. David & Co. shall not be obliged to make such commitments until the relevant costs approved have been paid to David & Co.

h) In the event that actual Non-Fees related costs for any project exceed any approved estimated sum, David & Co. shall immediately notify the Client in writing and seek the prior written approval of the Client before committing to the additional spend.

i) David & Co. shall diligently monitor costs and use reasonable efforts to ensure that actual Non-Fees related costs are less than the approved estimate.

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2. STANDARD TERMS OF PAYMENT

a) You will make a punctual payment to us of all invoices and will indemnify us in full in respect of any third-party expenses suffered or incurred by us pursuant to your instructions.

b) Invoices will be paid by you (without any deduction by way of set-off or counterclaim or otherwise as follow:

i) Fees – invoiced in advance within 14 days from the date of invoice. The invoice will be raised on the 1st day of each month.

ii) Media space – 7 days from date of invoice.

iii) Television media – 7 days from date of invoice.

iv) Production and other services – 7 days from date of invoice.

v) For any services where the contractor or supplier requires payment before work commences, our invoice covering the same shall be paid before work commences.

c) For TV, film production and other services where the contractor or supplier has the right to withhold consent for publication, broadcast transmission or other display before final payment, our invoice covering the same shall be paid within 7 days from date of invoice and in any event in cleared funds before the planned date of publication, broadcast transmission or other display.

d) On receipt of your approval for any on-going production costs or finished artwork costs, we may issue invoices for stage payments of the estimated cost thereof and the invoices shall be payable within 30 days from date of invoice.

e) Out of pocket expenses will be charged at cost. These include air and rail fares, hotels and sustenance. Exceptional car travel will be charged at AA rates (but agreed with you beforehand). Normal office disbursements such as post, telephone and fax will not be charged.

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3. SERVICES AND DELIVERABLES

a) David & Co. will provide the services described in the Letter to Engagement with reasonable skill and care.

b) The scope of the services will be defined in the Letter of Engagement, which will also specify the expected deliverables (e.g., reports, plans, analyses).

c) Deliverables will be deemed accepted by the Client if no written objection is received within 7 days of their delivery.

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4. CLIENT OBLIGATIONS

a) The Client will provide David & Co. with all necessary information, materials, and instructions in a timely manner.

b) The Client will co-operate with David & Co. and provide reasonable access to its personnel and resources.

c) The Client is responsible for obtaining all necessary approvals and consents from its own stakeholders and third parties in relation to the services provided by David & Co.

d) The Client will not act in any way that would cause David & Co. to breach any applicable law or regulation.

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5. OVERDUE ACCOUNTS

a) If payment of invoices is not made when due, we reserve the right to charge interest on overdue amounts this will be subject to interest of 8% plus the Bank of England base rate. Interest will accrue from the due date until payment is made.

b) If payment of invoices is not made when due, we also reserve the right to terminate or suspend performance of the services provided under this Agreement, at our absolute discretion.

c) We reserve the right to retain all work, materials and any other items in our possession relating to any matter until all invoices are paid in full.

d) Any queries in respect of an invoice must be raised within 14 days of the date of the invoice. After this date it will be deemed that the invoice has been accepted by you (except in the case of manifest error).

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6. CHANGES AND/OR CANCELLATION OF AGREED PROJECTS

In the event of change or cancellation, we reserve the right to charge you for all costs of complying with your request, which may include our expenses, production costs, cancellation fees, and our fees and commission in respect of such plans, schedules and work-in-progress.

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7. INTELLECTUAL PROPERTY (INCLUDING COPYRIGHT)

a) The intellectual property rights (including, where appropriate, copyright and design rights) in all works created or commissioned by us and used under this agreement shall be vested in you whenever possible.

b) In circumstances where we are unable to obtain the intellectual property rights, we will whenever possible obtain a licence for the use of the work to cover your specified requirement.

c) You acknowledge that all identifiable and original ideas and concepts which we present in relation to any promotion or advertising campaign which we have invented or developed are available to you only for such promotion or campaign and shall not be used for any other purpose whatsoever without our express prior written consent. Any agreement for use of the work beyond the scope of the promotion or advertising campaign for which it was developed may be subject to additional charges.

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8. LEGAL LIABILITY

a) You shall be responsible for checking any material submitted by us to you for approval in connection with any promotion or advertising campaign and you shall approve such material or notify us if any such material is false or misleading or is in any way contrary to law or any applicable advertising regulation (which shall include any present or future code of practice, adjudication, decision, guideline, direction or rule) of any advertising regulator (which shall include the Office of Communications (Ofcom), the Broadcast Committee of Advertising Practice (BCAP), the Committee of Advertising Practice (CAP) the Advertising Standards Authority (ASA) and any other UK or EU regulator or statutory or regulatory body relevant to advertising). If no approval or notification is given by you within any required time limit (or in the absence of any time limit within a reasonable time) following submission of any material in connection with this clause that material shall be deemed to have been approved by you in connection with this clause.

b) We shall not be liable for any delay in or omission of publication, transmission or any error in any advertisement in the absence of any serious default or neglect on our part.

c) You shall indemnify us in respect of all costs, damages, or other charges falling upon us as a result of any legal action or threatened legal action brought against us arising from the publication of any promotion or advertising campaign prepared for you by us and approved or deemed approved by you before publication.

d) We shall not be liable for any costs, loss or damage arising from our failure to fulfil our obligations where failure results from circumstances wholly or in part beyond our control including, for example, inclement weather, unsuitable light for filming and photography, industrial action, power failure, failure or breakdown of plant, machinery or equipment. We recommend you to take out appropriate insurance cover when necessary.

e) We shall not be liable for any (i) loss of profit (whether direct or indirect); (ii) loss of business (iii) depletion of goodwill and/or similar losses; (iv) loss of contract (v) loss or corruption of data or information; or (vi) special, indirect consequential or pure economic loss, costs, damages, charges or expenses.

f) Nothing in this Agreement shall limit or exclude our liability for death or personal injury to the extent that it is caused by our negligence or by fraud. Subject to the forgoing, our maximum aggregate liability under or in connection with this agreement shall not exceed the fees paid by you to us in respect of the services under this agreement in the preceding 12-month period giving rise to the claim.

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9. DURATION

a) We may terminate this Agreement forthwith on written notice in any of the following circumstances:

i) You make any voluntary arrangement with or convene a meeting or make or propose to make any arrangement or composition with your creditors or become subject to an administration order or (being an individual or firm) become bankrupt or (being a company) go into liquidation or pass a resolution for winding up or a court makes an order to that effect;

ii) A receiver, administrator, administrative receiver, manager, trustee or similar officer is appointed over any of your assets;

iii) You cease or threaten to cease to carry on business;

iv) You are in material breach of any of the terms of this client Agreement and, in the case of a breach capable of remedy you fail to remedy such breach within 10 days of written notice from us requiring remedy of such breach.

b) Without prejudice to any other rights we may have, we shall on termination be entitled to turn off and take down any website which we may be hosting for you as part of the services which we supply to you.

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10. GDPR

a) The parties confirm that where Services comprise of the Agency’s processing of Client Personal Data, David & Co. shall be the Data Processor and the Client shall be the Data Controller with respect to such processing.

b) The parties hereby acknowledge and agree that the provisions of Article 28(3)(a)-(h) of the GDPR are incorporated into this Agreement, with any necessary changes to give full effect to such provisions.

c) Each party shall comply with the obligations imposed on it by applicable Data Privacy Laws with regard to Client Personal Data processed by each party in connection with Services.

d) Where, by operation of Clause 10 c, David & Co. is obliged to provide assistance to the Client, or to third parties at the request of the Client (including submission to an audit or inspection and/or the provision of information), such assistance shall be provided at the sole cost and expense of the Client, save where such assistance directly arises from David & Co.’s breach of its obligations under this Agreement, in which event the costs of such assistance shall be borne by David & Co.

e) Notwithstanding any other provision of this Agreement, David & Co. shall be entitled to sub-contract any part of the Services requiring the processing of Client Personal Data, subject to the following conditions: David & Co. shall notify the Client in writing of its intention to engage such sub-contractor. Such notice shall give details of the identity of such sub-contractor and the services to be supplied by it; The Client shall be deemed to have approved the engagement of the sub-contractor if it has not served a notice in writing on David & Co. objecting (acting reasonably) to such appointment within 7 days of the date that the notice is received by the Client.

f) Where, in accordance with the provisions Article 82 of the GDPR, both parties are responsible for the act, or omission to act, resulting in the payment of Losses by a party, or both parties, then a party shall only be liable for that part of such Losses which is in proportion to its respective responsibility.

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11. CONFIDENTIALITY

a) Each of the parties acknowledges that, whether by virtue of and in the course of this Agreement or otherwise, it may receive or otherwise become aware of information relating to the other party, its clients, customers, businesses, business plans or affairs, which information is proprietary and confidential to the other party

b) Confidential Information shall exclude information which:

i) at the time of receipt by the recipient is in the public domain;

ii) subsequently comes into the public domain through no fault of the recipient, its officers, employees or agents;

iii) is lawfully received by the recipient from a third party an unrestricted basis; and/or

iv) is already known to the recipient before receipt hereunder

c) Each of the parties undertake to maintain the confidentiality of the other party’s Confidential Information at all times and to use no less adequate measures than it uses in respect of its own confidential information to keep the other party’s Confidential Information reasonably secure. Neither party shall at any time, whether during the Term or at any time thereafter, without the prior written approval of the other party, use, disclose, exploit, copy or modify any of the other party’s Confidential Information, or authorise or permit any third party to do the same, other than for the sole purpose of the exercise of its rights and/or the performance of its obligations in connection with this Agreement.

d) Neither party shall be in breach of this clause if it discloses the other party’s Confidential Information in circumstances where such disclosure is required by law, regulation or order of a competent authority, provided that the other party is given reasonable advance notice of the intended disclosure and a reasonable opportunity to challenge the same.

e) Each party hereby indemnifies the other party from and against all Losses arising out of or in connection with the other party’s breach of this Clause, including breach by each party’s Associates.

 

12. NON-SOLICITATION

You agree that you will not either on your own account or in association with any other person, firm, company or organisation or otherwise and whether directly or indirectly solicit or entice away or attempt to solicit or entice away any employee of ours who has worked on any promotion or advertising campaign for you in the previous 12 months.

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13. FORCE MAJEURE

Neither party will be liable for any delay or failure to perform its obligations under the Agreement due to causes beyond its reasonable control, such as acts of God, war, terrorism, natural disasters

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14. TERMINATION

a) This clause only applies if an Agreement or Letter of Engagement does not specify a termination clause.

b) Either party may terminate the Agreement by giving 30 days' written notice to the other party.

c) The Agreement may be terminated immediately by either party upon written notice in the event of a material breach by the other party that is not remedied within 30 days of written notice specifying the breach.

d) Termination of the Agreement will not affect accrued rights or remedies of either party.

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15. LAW AND JURISDICTION

The construction and performance of this agreement shall be governed by the laws of England and Wales and the parties submit to the exclusive.