1. INTERPRETATION
1.1 In these terms and conditions (“Conditions”), the following definitions apply:
Customer: Clarion Events Limited (Company No. 00454826) or any of its subsidiaries as set out in the Order;
Goods: the goods (or any part of them) supplied by the Supplier to the Customer as set out in the Order;
Order: The Customer's purchase order for the supply of Goods and/or Services as set out in the appended purchase order form;
Services: all services, including without limitation any Deliverables, provided by the Supplier to the Customer; and
Supplier: the supplier of the Goods and/or Services, as set out in the Order.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase the Goods and/or the Services in accordance with these Conditions.
2.2 The Order shall be deemed to be accepted on the earlier of (a) the Supplier issuing written acceptance of the Order; and (b) any act by the Supplier consistent with fulfilling the Order, at which point and on which date the Contract shall come into existence.
2.3 These Conditions apply to all contracts between the Customer and the Supplier for the supply of Goods and/or Services to the Customer by the Supplier (the “Contract(s)”) except as set forth in clause 2.4.
2.4 The Order is subject to the terms and conditions of any applicable written agreement between Supplier and Customer. In the event of any conflict between the terms of the Order and the terms of any such written agreement, the terms of the written agreement between Supplier and Customer shall govern and control.
3. SUPPLY OF GOODS
3.1 The Supplier warrants that the Goods:
(a) correspond with their description and any applicable specification provided by the Customer;
are of satisfactory quality and fit for any purpose held out by the Supplier or made known to the Supplier by the Customer, expressly or by implication;
(b) shall be free from defects in design, materials and workmanship and remain so for 24 months after delivery; and
(c) comply with all applicable statutory and regulatory laws and requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods.
3.2 The Supplier shall ensure that at all times it has and maintains all licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under the Contract in respect of the Goods.
3.3 The Customer shall have the right to inspect and test the Goods at any time before delivery and for a reasonable time after delivery of the Goods. If following such an inspection or testing the Customer considers that the Goods do not comply or are unlikely to comply with clause 3.1, the Customer shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance.
3.4 Notwithstanding any such inspection or testing, the Supplier shall remain fully responsible for the Goods prior to delivery of the Goods and any inspection or testing shall not reduce or otherwise affect the Supplier’s obligations under the Contract. The Customer shall have the right to conduct further inspections and tests after any remedial action.
4. DELIVERY OF GOODS
4.1 The Supplier shall ensure that the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition and each delivery of the Goods shall be accompanied by a delivery note which shows the date of the Order, the Order number, the type / quantity of the Goods and any special storage instructions.
4.2 The Supplier shall deliver the Goods during normal business hours on the date specified in the Order, or, if no such date is specified or agreed between the Supplier and the Customer, then within a reasonable time after the date of the Order. The Goods shall be delivered to the location set out in the Order or as instructed by the Customer before delivery. Time shall be of the essence for the delivery of the Goods.
4.3 Delivery of the Goods shall be completed on the completion of the unloading of the Goods at the agreed premises in accordance with clause 4.2. Title and risk in the Goods shall pass to the Customer upon completion of the delivery.
5. SUPPLY OF SERVICES
5.1 The Supplier shall for the duration of this Contract provide the Services to the Customer in accordance with these Conditions.
5.2 The Supplier shall meet any performance dates for the Services specified in the Contract or notified to the Supplier by the Customer. Time shall be of the essence for performance of the Services.
5.3 In providing the Services, the Supplier shall:
(a) co-operate with the Customer in all matters relating to the Services, and comply with all instructions of the Customer;
(b) perform the Services with the best care, skill and diligence in accordance with best practice;
(c) use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Supplier's obligations are fulfilled in accordance with this Contract;
(d) ensure that the Services and all documents, products and materials developed by the Supplier (or by its agents, contractors or employees) as part of the Services (“Deliverables”) conform with all descriptions and specifications set out in the Contract, and that the Deliverables are fit for any purpose expressly or impliedly made known to the Supplier by the Customer;
(e) provide all equipment, tools and vehicles and such other items as are required to provide the Services;
(f) use the best quality goods, materials, standards and techniques, and ensure that the Deliverables, and all goods and materials supplied and used in the Services or transferred to the Customer, are free from defects in workmanship, installation and design;
(g) obtain and at all times maintain all necessary licenses and consents, and comply with all applicable laws and regulations;
(h) observe all health and safety rules and regulations and any other security requirements that apply at any of the Customer's premises;
(i) hold all materials, equipment and tools, drawings, specifications and data supplied by the Customer to the Supplier (“Customer Materials”) in safe custody at its own risk, maintain Customer Materials in good condition until returned to the Customer, and not dispose or use Customer Materials other than in accordance with the Customer's written instructions or authorization; and
(j) not do or omit to do anything which may cause the Customer to lose any license, authority, consent or permission on which it relies for the purposes of conducting its business, and the Supplier acknowledges that the Customer may rely or act on the Services.
5.4 The Supplier warrants to the Customer that:
(a) the Supplier will perform the Services with reasonable care and skill and in accordance with generally recognized commercial practices and standards;
(b) the Services will conform with all descriptions and specifications provided to the Customer by the Supplier; and
(c) the Services and Deliverables will be provided in accordance with all applicable legislation from time to time in force, and the Supplier will inform the Customer as soon as it becomes aware of any changes in that legislation.
6. REMEDIES
6.1 If the Supplier fails to perform the Services and/or deliver the Goods in accordance with the terms of the Contract, the Customer shall, without limiting its other rights or remedies, have any or all of the following rights:
(a) to terminate the Contract with immediate effect by giving written notice to the Supplier;
(b) to refuse to accept any subsequent performance of the Services and/or delivery of the Goods which the Supplier attempts to make;
(c) to recover from the Supplier any costs incurred by the Customer in obtaining substitute services and/or goods from a third party;
(d) to require the Supplier, without charge to the Customer, to carry out such additional work as is necessary to correct the Supplier’s failure;
(e) to reject the Goods (in whole or in part) whether or not title has passed and to return them to the Supplier at the Supplier’s own risk and expense;
(f) to require the Supplier to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods;
(g) where the Customer has paid in advance for Services and/or Goods that have not been provided by the Supplier, the right to have such sums refunded by the Supplier; and/or
(h) in any case, the right to claim damages for any additional costs, loss or expenses incurred by the Customer which are in any way attributable to the Supplier's breach (or breaches) of the Contract.
6.2 These Conditions shall extend to any substituted or remedial services and/or any repaired or replacement goods provided by the Supplier.
6.3 The Customer's rights under this Contract are in addition to its rights and remedies implied by statute and common law.
7. CHARGES AND PAYMENT
7.1 The amount payable by the Customer to the Supplier (the “Charges”) for the Goods and/or the Services shall be set out in the Order, and shall be the full and exclusive remuneration of the Supplier in respect of the provision of the Goods and/or the performance of the Services.
7.2 The Supplier shall invoice the Customer on delivery of the Goods and/or completion of the Services. Each invoice shall include all information required by the Customer to verify the accuracy of the invoice, including but not limited to the relevant purchase order number. The Customer reserves the right to reject any invoice which does not contain the relevant purchase order number.
7.3 In consideration of the supply of the Goods and/or the Services by the Supplier, the Customer shall pay the invoiced amounts within 60 days of the date of a correctly rendered invoice to a bank account designated in writing by the Supplier.
7.4 All amounts payable by the Customer or the Supplier under the Contract are exclusive of amounts in respect of applicable sales or value added taxes.
7.5 The Customer may, without limiting its other rights or remedies, set off any amount owed to it by the Supplier under the Contract against any amount payable by the Customer to the Supplier under the Contract. The Supplier shall not be entitled to set off any amount owed to it under the Contract against any amount payable by it to the Customer.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 In respect of the Goods and any goods that are transferred to the Customer under this Contract, including without limitation the Deliverables or any part of them, the Supplier warrants that it has full, clear and unencumbered title to all such items, and that at the date of delivery of such items to the Customer, it will have full and unrestricted rights to transfer all such items to the Customer.
8.2 The Supplier assigns to the Customer, with full title guarantee and free from all third party rights, all intellectual property rights in the products of the Services, including for the avoidance of doubt the Deliverables.
8.3 The Supplier shall, promptly at the Customer's request, do (or procure to be done) all such further acts and things and the execution of all such other documents as the Customer may from time to time require for the purpose of securing for the Customer the full benefit of the Contract, including all right, title and interest in and to the intellectual property rights assigned to the Customer in accordance with clause 8.2.
8.4 All Customer Materials are the exclusive property of the Customer.
9. INDEMNITY, LIMITATION OF LIABILITY AND INSURANCE
9.1 Nothing in the Conditions shall limit or exclude a party’s liability for (a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; (b) fraud or fraudulent misrepresentation; or (c) any other liability which cannot be limited or excluded by applicable law.
9.2 Subject to clause 9.1, the Customer shall not have any liability to the Supplier, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or for any indirect or consequential loss arising under or in connection with the Contract.
9.3 Subject to clauses 9.1 and 9.2, the Customer’s total liability to the Supplier, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this Contract shall be limited to the amount of Charges paid by the Customer to the Supplier in the twelve months immediately preceding such breach or, if a shorter period of time, from the commencement of this Contract to the date of such breach.
9.4 The Supplier shall keep the Customer indemnified in full against all costs, expenses, damages and losses (whether direct or indirect), including any interest, fines, legal and other professional fees and expenses awarded against or incurred or paid by the Customer as a result of or in connection with:
(a) any claim made against the Customer by a third party arising out of, or in connection with, the supply of the Goods or Services, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Supplier, its employees, agents or subcontractors; and
(b) any claim made against the Customer for actual or alleged infringement of a third party’s intellectual property rights arising out of, or in connection with, the manufacture, supply or use of the Goods, or receipt, use or supply of the Services.
9.5 For the duration of the Contract and for a period of one year thereafter, the Supplier shall maintain in force, with a reputable insurance company, commercial general liability (including product liability and completed operations liability) in a sum no less than $2,000,000 per occurrence, automobile liability with a minimum combined single limit of $1 million per occurrence, workers’ compensation in an amount no less than the applicable statutory minimum requirement, and employer’s liability in an amount no less than $1 million per occurrence, to cover the liabilities that may arise under or in connection with the Contract. Supplier shall, on the Customer's request, produce both the insurance certificate giving details of coverage and the receipt for the current year's premium in respect of each insurance.
9.6 This clause 9 shall survive termination of the Contract.
10. CONFIDENTIALITY
The Supplier shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to, or otherwise obtained by, the Supplier by the Customer, its employees, agents or subcontractors, and any other confidential information concerning the Customer’s business or its products or its services which the Supplier may obtain. The Supplier shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Supplier's obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Supplier. This clause 9 shall survive termination of the Contract.
11. TERMINATION
11.1 Without limiting its other rights or remedies, the Customer may terminate the Contract with immediate effect by giving written notice to the Supplier if:
(a) the Supplier commits a material or persistent breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of receipt of notice in writing of the breach; or
(b) Supplier becomes or is declared insolvent or bankrupt, is the subject of any proceeding related to its liquidation or insolvency (whether voluntary or involuntary) or makes an assignment for the benefit of creditors or takes or is subject to any similar action.
11.2 On termination of the Contract for any reason:
(a) the Supplier shall immediately deliver to the Customer all Deliverables whether or not then complete, and return all Customer Materials. If the Supplier fails to do so, then the Customer may enter the Supplier's premises and take possession of them. Until they have been returned or delivered, the Supplier shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
(b) the accrued rights, remedies, obligations and liabilities of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination; and
(c) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
12. GENERAL
12.1 The Customer shall not be liable to the Customer as a result of any delay or failure to perform its obligations under the Contract if and to the extent such delay or failure is caused by an event or circumstance which is beyond the reasonable control of the Customer which by its nature could not have been foreseen by it or if it could have been foreseen was unavoidable.
12.2 The Supplier shall not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Customer. The Customer may at any time assign, transfer, charge, 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.
12.3 Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and will be deemed to have been given
(a) When delivered by hand (with written confirmation of receipt);
(b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); or
(c) on the fifth business day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at their respective addresses set forth on the first page of this Contract (or at such other address for a party as is specified in a notice given in accordance with this clause 12.3). This clause 12.3 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, “writing” shall not include e-mails and for the avoidance of doubt notice given under this Contract shall not be validly given if sent by e-mail.
12.4 A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall 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 shall preclude or restrict the further exercise of that or any other right or remedy. Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
12.5 If a court of competent jurisdiction finds that any provision (or part of any provision) of the Contract is invalid, illegal or unenforceable, that provision or (part of a provision) shall be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected. If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
12.6 Supplier is acting as an independent contractor under the Contract. Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between Supplier and the Customer, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
12.7 A person who is not a party to the Contract shall not have any rights under or in connection with it.
12.8 Except as set forth in clause 2.4, the Contract represents the entire agreement between the parties and supersedes any proposals and any other oral or written communications between the parties; Any variation, including any additional terms and conditions, to the Contract shall only be binding when agreed in writing and signed by both parties.
12.9 The Contract will be governed by and construed in accordance with the laws of the State of Delaware, excluding its principles relating to conflicts of laws. The parties consent to the exclusive jurisdiction of the federal and state courts located in the county of New Castle, Delaware.