1.1 The following definitions and rules of interpretation in this condition (i.e. condition 1) apply to all of the terms and conditions:
1.2 Headings in these Conditions will not affect their interpretation.
1.3 Words in the singular include the plural (and vice versa), and a reference to one gender includes a reference to the other genders.
1.4 Any obligation in the Contract on a person not to do something includes, without limitation, an obligation not to agree, allow, permit or acquiesce in that thing being done. Any obligation in the Contract on the Client will include, without limitation and where relevant, an obligation on the Client to ensure that the Client also complies with that obligation.
1.5 References to conditions are to the conditions of the Contract.
2 Application of conditions and cancellation of Contract
2.1 These Conditions will:
(a) apply to and be incorporated into the Contract; and
(b) prevail (where relevant, to the fullest extent permissible by law) over any inconsistent terms or conditions contained, or referred to, in any other document supplied by the Client, or implied by law, trade custom, practice or DSE assessment of dealing.
2.2 The Client's booking form constitutes an offer by the Client to purchase the Services specified in it on these Conditions. No offer placed by the Client will be accepted by the Company other than; by a written acknowledgement issued and executed by the Company; or (if earlier) by the Company starting to provide the Services, when a contract for the supply and purchase of the Services on these Conditions will be established.
2.3 After the Company has issued an Acknowledgment, the Client should carefully check that the details in the Acknowledgment are correct and accurately record the Services that the Client wants to purchase. It is the Client's responsibility to contact the Company should the Booking Confirmation not be received within 24 hours of Booking Date (date of initial payment) or should any details be inaccurate. The Company accepts no liability for losses of any kind incurred as a result of inaccuracy of information or communications not received.
2.4 After the booking has been made, the Client will have the right to, either:
Non-receipt of a confirmation does not constitute a delay in Booking Date and therefore extension to cancellation period. Changes to the DSE assessment will incur an administrative charge of £10 per change. Changes cannot be made within 1 day of the planned DSE assessment date.
2.5 Any proposal to change the Services referred to in the Acknowledgment will constitute a new offer in accordance with condition 2.2 above, and will be subject to acceptance by the Company in accordance with that condition.
If the Client fails to notify the Company within the relevant period referred to in condition 2.4 above, the Client will be deemed to have accepted the terms of the Contract as referred to in the Acceptance, and any further alterations to the terms of the Contract (whether relating to the DSE assessment to be undertaken and/or the dates of the DSE assessment can only be made with the Company’s written consent.
2.6 If the Client cancels the Contract within the relevant period referred to in condition 2.4 above, any amounts already paid by the Client, in cleared funds, under the Contract will be refunded to them. If the Client fails to cancel the Contract within the relevant period referred to in condition 2.4 above, the Client will have no further right to cancel the Contract, will remain liable to pay any outstanding amounts owing under the Contract, and no sums already paid under the Contract will be refunded by the Company. This condition will apply even if the Client is subsequently unable to attend the DSE assessment, whether as a result of injury, illness or otherwise.
3 Changes to the DSE assessment
3.1 The details of the DSE assessment booked (including the date or dates of the DSE assessment will be as referred to in the Acknowledgement. Unless changes to these details have been accepted by the Company in accordance with condition 2.4, none of these details can be changed without the Company’s prior written consent.
4 Changes to the DSE assessment booked
4.1 The Company reserves the right from time to time to make reasonable changes to the DSE assessment booked. If this becomes necessary, the Company will give the Client as much notice as possible of such changes.
5 Provision of the Services
5.1 The Company will use reasonable endeavours to provide the Services, engaging such sub- contractors to provide the Services on its behalf, as it from time to time thinks fit.
5.2 The company does not take responsibility for missed DSE assessment attendance by Clients due to any other conditions which may impact the Client.
If a DSE Assessor can’t attend a planned DSE assessment session, the company will use reasonable endeavours to provide a suitable and timely alternative training session. If this isn’t possible a credit note to allow the Client to attend a further DSE assessment will be issued.
5.3 Any issue or query that the Client has at any stage during a DSE assessment, with any aspect of the DSE assessment, should be brought at the earliest possible opportunity to the attention of the DSE assessment tutor to give them an opportunity to find a suitable resolution. No action can be taken in respect of any matter which is not notified to the DSE Assessment Tutor. As such, the Company will be unable to address, and will not be liable or responsible in respect of, any such matter.
6 Client's obligations
6.1 If the Company's performance of its obligations under the Contract is prevented or delayed by any act or omission of the Client and/or the Client, the Company will not be liable for any costs, charges or losses sustained or incurred by the Client arising directly or indirectly from such prevention or delay.
6.2 The Client will be liable to pay to the Company, on demand, all reasonable costs, charges or losses sustained or incurred by the Company (including, without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation, loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Client's negligence, failure to perform or delay in the performance of any of its obligations under the Contract.
7 Charges and payment
7.1 In consideration of the provision of the Services, the Client will pay the charges, using the payment option referred to in the Acknowledgment. Payment must be made strictly in accordance with the terms set out in the Acknowledgment. Unless stated otherwise, all charges will be inclusive of VAT. All payments must be made in Pounds Sterling.
7.2 Without prejudice to any other right or remedy that it may have, if the Client fails to pay the Company on the due date, the Company may: charge interest on such sum from the due date for payment at the annual rate of 10% above the base lending rate from time to time of HSBC Plc, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and the Client will pay the interest immediately on demand; and suspend all Services until payment has been made in full.
7.3 Time for payment will be of the essence of the Contract.
7.4 All sums payable to the Company under the Contract will become due immediately on its termination, despite any other provision. This condition 7.4 is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
7.5 The Company may, without prejudice to any other rights it may have, set off any liability of the Client to the Company against any liability of the Company to the Client.
8 Limitation of liability
8.1 This condition 8 sets out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to the Client in respect of:
(a) any breach of the Contract;
(b) any use made by the Client or any part of them; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
8.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract, provided that nothing in the Contract will affect, or is intended to affect, the Client’s statutory rights.
8.3 Nothing in these Conditions limits or excludes the liability of the Company:
(a) for death or personal injury resulting from negligence; or
(b) for any damage or liability incurred by the Client as a result of fraud or fraudulent misrepresentation by the Company; or
(c) for any liability incurred by the Client as a result of any breach by the Company of any term implied by law which it is not permissible to exclude.
8.4 Subject to condition 8.2 and condition 8.3:
(a) the Company will not be liable for:
(i) loss; or
(ii) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
(b) the Company's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or intended performance, of the Contract will be limited to the price paid for the Services.
9.1 Without prejudice to any other rights or remedies which the Company may have, the Company may terminate the Contract without liability to the Client immediately on giving notice to the Client, if:
(a) the Client fails to pay any amount due under the Contract on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment; or
(b) the Client commits a material breach of any of the terms of the Contract. For the purpose of this condition (b) any breach of conditions 6.1 or 6.2 will be deemed a material breach.
9.2 On termination of the Contract for any reason, the Company will cease to provide DSE assessment tuition.
10 Force majeure
10.1 The Company will have no liability to the Client under the Contract if it is prevented from, or delayed in performing, its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation), strikes, lock-outs or other industrial disputes (whether involving the workforce of the Company or any other party), failure of a utility service or transport network, act of God, war, terrorism, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of the Company’s, employees, agents or subcontractors.
11.1 The Company may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services.
11.2 Save as otherwise provided, no variation of the Contract or these Conditions or of any of the documents referred to in them will be valid unless it is in writing and signed by or on behalf of each of the parties.
12.1 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by the Company in exercising any right or remedy under the Contract or by law will constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy will preclude or restrict the further exercise of that (or any other) right or remedy.
12.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
13.1 If any provision of the Contract (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision will, to the extent required, be deemed not to form part of the Contract, and the validity and enforceability of the other provisions of the Contract will not be affected.
14 Entire agreement
14.1 The Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
14.2 The Client acknowledges that, in entering into the Contract, they have not relied on, and will have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) (other than for breach of contract), as expressly provided in the Contract.
14.3 Nothing in this condition will limit or exclude any liability for fraud.
15.1 The Client will not, without the prior written consent of the Company, assign, transfer, charge, mortgage, subcontract or deal in any manner with all or any of their rights or obligations under the Contract.
15.2 The Company may at any time assign, transfer, charge, mortgage, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
16 Rights of third parties
16.1 A person who is not a party to the Contract will not have any rights under or in connection with it.
17.1 Any notice required to be given under the Contract will be in writing either by email or post to the other party, in the case of the Client, to the address specified in the Acknowledgment, and in the case of the Company to the address referred to in condition 1.1 above, or as otherwise specified by the relevant party by notice in writing to the other party.
17.2 Any notice will be deemed to have been duly received, in the case of a notice sent within the UK, on the second Working Day after posting, or, in the case of a notice sent from one country to another, on the fifth Working Day after posting (where the recipient is not in the UK, a Working Day being a day generally classified as a working day in that country).
18 Governing law and jurisdiction
18.1 The Contract, and any dispute or claim arising out of or in connection with it or its subject matter, will be governed by, and construed in accordance with, the law of England and Wales.
18.2 The parties irrevocably agree that the courts of England and Wales will have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, the Contract or its subject matter.