In these terms and conditions:
1.1 Customer: means the person or company named in the Customer Requirement Confirmation for whom the Supplier has agreed to provide the Service in accordance with these Terms. Contract: means the contract for the provision of the Service. Document: includes, in addition to a document in writing, a map, plan, design, drawing, picture or other image, or any other record of any information in any form. Customer Requirements: means any Documents or other materials, and any data or other information provided by the Customer relating to the Service. Customer Requirement Confirmation: means the communications in email or letter format (or otherwise in writing) from the Supplier confirming details of the Material and Service to be provided to the Customer. Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world. Material: means any materials including props, equipment and décor and information provided by the Supplier in relation to the Service. Service: means the events management service provided by the Supplier for the Customer as set out in the Customer Requirement Confirmation. Supplier: means WOW Table Art Limited registered in England and Wales under number 07496575 and having a registered office address at Pall-Ex House, Victoria Road, Ellistown, LE67 1FH
Supplier’s Charges: means the charges detailed in the Customer Requirement Confirmation. Terms: means these terms and conditions which are appended to or accessible from the Customer Requirement Confirmation. VAT: value added tax chargeable under English law for the time being and any similar additional tax. Venue: means the premises where the Services are to be provided.
1.2 The headings in these Terms are for convenience only and shall not affect their interpretation.
2. Supplier’s Obligations
2.1 The Supplier shall provide the Service to the Customer subject to these Terms. Any changes or additions to the Service or these Terms must be agreed in writing by the Supplier and the Customer.
2.2 The Contract will come into existence on these Terms when the Customer indicates acceptance of the details contained within the Customer Requirement Confirmation and/or continues its request for the Service.
2.3 The Supplier warrants to the Customer that the Service will be provided using reasonable care and skill and, as far as reasonably possible, in accordance with the details referred to in the Customer Requirement Confirmation. Where the Supplier supplies in connection with the provision of the Service any goods (including Material) supplied by a third party, the Supplier does not give any warranty, guarantee or other term as to their quality, fitness for purpose or otherwise, but shall, where possible, assign to the Customer the benefit of any warranty, guarantee or indemnity given by the person supplying the goods to the Supplier.
2.4 The Supplier shall use reasonable commercial endeavours to provide the Services on or by the date(s) specified in the Customer Requirement Confirmation but any such dates shall be an estimate only and time for performance by the Supplier shall not be of the essence.
3. Customer’s Obligations
3.1 The Customer shall at its own expense provide the Supplier with all necessary Documents or other materials, and all necessary data or other information relating to the Service, within sufficient time to enable the Supplier to provide the Service in accordance with the Contract. The Customer shall ensure the accuracy of all Customer Requirements communicated to the Supplier and co-operate with the Supplier in all matters relating to the Service. 3.2 The Customer shall at its own expense retain duplicate copies of all Customer Requirements and insure against their accidental loss or damage. The Supplier shall have no liability for any such loss or damage, however caused. 3.3 The Customer shall not remove any Material from the Venue and all Material remains the sole property of the Supplier.
3.4 Where the Supplier delivers and installs Material at the Venue or Material is delivered by courier or such similar delivery service all Material shall be at the sole risk of the Customer from the time of delivery or installation (as applicable) to the Venue and the Customer will be charged (at the cost incurred by the Supplier) for any missing or damaged Material.
3.5 In the event that the Customer collects Material from the Supplier all Material shall be at the sole risk of the Customer from the time of collection from the Supplier and the Customer will be charged (at the cost incurred by the Supplier) for any missing or damaged Material.
3.6 Where Material is supplied to the Customer by courier or such similar service the Customer hereby undertakes to comply with any terms of delivery imposed by the courier service provider including (without limitation) how the Material has to be packaged for return to the Supplier. The Customer shall be liable to the courier and/or the Supplier for any failure to comply with any such terms and shall indemnify the Supplier in respect of any costs incurred.
3.7 The Customer shall provide for the Supplier, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Venue and other facilities as may reasonably be required by the Supplier.
3.8 If the Supplier’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, the Supplier shall not be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay.
3.9 The Customer shall ensure that naked flames are not used in conjunction with, or close to, any of the Supplier’s products.
4.1 The Supplier’s Charges include the cost of transporting the Materials’ and Supplier’s personnel to the Venue.
4.2 The Supplier reserves the right to increase the Supplier’s Charges if there is a change or inaccuracy in the Customer’s instructions, or due to lack of instructions the Supplier has incurred extra expense.
4.3 The Supplier’s Charges are inclusive of the amount of labour initially estimated but the Supplier reserves the right to increase the Supplier’s Charges if: 4.3.1 the Customer or the Venue notifies the Supplier of a reduction in the amount of time available to set up the Service at the Venue for any reason or; 4.3.2 the Supplier’s personnel are required to be present at the Venue later than advised in the Customer Requirement Confirmation or; 4.3.3 if for any other reason, including late booking of the Service, the Supplier is required to provide extra labour in order to provide the Service.
4.4 If the Customer requires the Supplier to hire additional Material from a third party and deliver it to the Venue the Supplier will make a charge for the delivery.
4.5 The Customer shall pay the Supplier’s Charges as detailed in the Customer Requirement Confirmation in cleared funds before the date of the event at which the Service is to be provided.
4.6 The Supplier will invoice the Customer for any additional payments due under clauses 3.4, 4.2, 4.3, 4.4, 7 and 9.3 (if any arise) at any time after the date of the event at which the Service was provided.
4.7 The sums payable, as detailed in clause 4.6, shall be paid by the Customer (together with any applicable Value Added Tax, and without any set-off or other deduction) within 30 days of the date of the Supplier’s invoice.
4.8 Time for payment shall be of the essence to the Contract.
4.9 The Supplier shall be entitled to vary the Supplier’s Charges from time to time by giving not less than three months written notice to the Customer.
4.10 The Supplier’s Charges as quoted to the Customer for the provision of the Service are exclusive of any Value Added Tax, for which the Customer shall be additionally liable at the applicable rate from time to time.
4.11 If payment is not made on the due date, the Supplier shall be entitled, without limiting any other rights it may have, to charge interest on the outstanding amount (both before and after any judgment) at the rate of 4% above the base rate from time to time of Barclays Bank PLC from the due date until the outstanding amount is paid in full.
5. Intellectual Property
5.1 As between the Customer and the Supplier, all Intellectual Property Rights and all other rights in the Materials shall be owned by the Supplier subject only to the right of the Customer to use the Material for the purposes of utilising the Service.
5.2 The property and any copyright or other Intellectual Property rights in any Customer Requirements shall belong to the Customer.
5.3 The Customer warrants that any Customer Requirements and its use by the Supplier for the purpose of providing the Service will not infringe the copyright or other rights of any third party and the Customer shall indemnify the Supplier against any losses, damages, costs, expenses or other claims arising from any such infringement.
5.4 Subject to clause 5.3, the Supplier warrants that any Material and its use by the Customer for the purposes of utilising the Service will not infringe the copyright or other rights of any third party and the Supplier shall indemnify the Customer against any losses, damages, costs, expenses or other claims arising from any such infringement.
6. Limitation of Liability
6.1 The Supplier shall have no liability to the Customer for any loss, damage, costs, expenses or other claims for compensation arising from any Customer Requirements or instructions supplied by the Customer which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other fault or omission of the Customer.
6.2 Except in respect of death or personal injury caused by the Supplier’s negligence, or as expressly provided in these Terms, the Supplier shall not be liable to the Customer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the negligence of the Supplier, its servants or agents or otherwise) which arise out of or in connection with the provision of the Service or their use by the Customer, and the entire liability of the Supplier under or in connection with the Contract shall not exceed the amount of the Supplier’s Charges for the provision of the Service, except as expressly provided in these Terms.
6.3 The Supplier’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of the Services shall be limited to the value of the Supplier’s Charges.
6.4 The Service shall be provided in accordance with the Customer Requirement Confirmation but the Supplier reserves the right to make substitutions to the Material and use artistic licence in the design of the Material and the arrangement of the Venue and the provision of the Service generally. Due to manufacturing processes the Supplier cannot guarantee that any Customer Requirements will match the Material provided by the Supplier.
7. Force Majeure
7.1 The Supplier shall not be liable to the Customer or in breach of contract, nor liable for any failure or delay in performance of the Service, if at the time for performance of the obligations, there are matters arising from or attributable to acts, events, omissions or accidents beyond its reasonable control (Force Majeure Event), including but not limited to any of the following: 7.1.1 acts of God, including but not limited to fire, flood, earthquake, windstorm or other natural disaster; 7.1.2 industrial relations or similar actions; 7.1.3 terrorist attack, civil war, civil commotion or riots; 7.1.4 nuclear, chemical or biological contamination or sonic boom; 7.1.5 compliance with any law (including a failure to grant any licence or consent needed or any change in the law or interpretation of the law); 7.1.6 fire, explosion or accidental damage; 7.1.7 extreme adverse weather conditions; 7.1.8 collapse of building structures, failure of plant machinery, machinery, computers or vehicles; 7.1.9 any labour dispute, including but not limited to strikes, industrial action or lockouts; 7.1.10 non-performance by suppliers or subcontractors; 7.1.11 interruption or failure of utility service, including but not limited to electric power, gas or water; 7.1.12 Interruption to the flow of traffic on roads or motorways leading to the Venue due to any incident or cause beyond the control of the Supplier or its subcontractors.
7.2 Where the Supplier is subject to a Force Majeure Event it shall not be in breach of this Contract provided that: 7.2.1 it promptly notifies the Customer of the nature and extent of the Force Majeure Event causing its failure or delay in performance; and 7.2.2 it could not have avoided the effect of the Force Majeure Event by taking precautions which, having regard to all the matters known to it before the Force Majeure Event, it ought reasonably to have taken, but did not; and 7.2.3 it has used reasonable endeavours to mitigate the effect of the Force Majeure Event, to carry out its obligations under the Contract in any way that is reasonably practicable and to resume the performance of its obligations as soon as reasonably possible.
8. Change Control
8.1 If the Customer requests a change to the scope or execution of the Services, the Supplier shall, within a reasonable time, provide a written estimate to the Customer of: 8.1.1 the likely time required to implement the change; 8.1.2 any necessary variations to the Supplier’s Charges arising from the change; 8.1.3 the likely effect of the change on the Services provided.
8.2 If the Customer wishes the Supplier to proceed with the change, the Supplier has no obligation to do so unless and until the parties have agreed in writing the necessary variations to the Supplier’s Charges and any other relevant terms to take account of the change.
8.3 Any variations in the Supplier’s Charges agreed under this clause 8 will become payable by the Customer in accordance with clauses 4.5 and 4.6. 8.4 The Supplier may at any time, without notifying the Customer, make any changes to the Service which are necessary to comply with any applicable safety or other statutory requirements, or which do not materially affect the nature or quality of the Service.
9.1 The Customer shall be entitled to terminate the Contract at any time by giving not less than 28 days written notice to the Supplier.
9.2 Should the Customer cancel the Contract for the provision of the Service less than 28 days before the date specified in the Customer Requirement Confirmation the Supplier will charge the full Supplier’s Charges.
9.3 If a Venue is booked by the Supplier on behalf of a Customer and the Customer cancels whether in accordance with this clause or otherwise, any charges incurred by the Supplier will be set-off against any sums paid by the Customer in accordance with clause 4.5. Any excess above this amount will be invoiced to the Customer.
9.4 Either party may (without limiting any other remedy) at any time terminate the Contract by giving written notice to the other if the other commits any breach of these Terms and (if capable of remedy) fails to remedy the breach within 30 days after being required by written notice to do so, or if the other goes into liquidation, becomes bankrupt, makes a voluntary arrangement with its creditors or has a receiver or administrator appointed.
10. Public Liability
The Supplier holds public liability insurance of up to £5,000,000 and the Supplier will not be responsible for taking out a policy in excess of this sum. It is the Customer’s responsibility to assess the level of risk and if necessary arrange for the provision of public liability insurance at the Customer’s own expense to the value necessary if any liabilities are estimated to be in excess of £5,000,000.
11.1 These Terms and conditions (together with the terms and any amendment thereto, if any, as set out in the Customer Requirement Confirmation) constitute the entire Contract between the parties, and supersede any previous agreement or understanding and may not be varied except in writing between the parties. All other terms, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.
11.2 A notice required or permitted to be given by either party to the other under these Terms shall be in writing addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
11.3 No failure or delay by either party in exercising any of its rights under the Contract shall be deemed to be a waiver of that right, and no waiver by either party of any breach of the Contract by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.
11.4 If any provision of these Terms is held by any court or other competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and the remainder of the provision in question shall not be affected.
11.5 A person who is not a party to this agreement shall not have any rights under or in connection with it under the Contracts (Rights of Third Parties) Act 1999.
11.6 English law shall apply to the Contract, and the parties agree to submit to the exclusive jurisdiction of the English courts.