General Terms and Conditions of Business
1. DEFINITIONS In these terms and conditions:
1.1 'The Company' means mr.smithleisure Limited or any of its subsidiary companies.
1.2 'The Customer' means any person, firm, company or other legal entity which places an order, or buys any Products from the Company and includes the employees, servants, agents, principals (whether disclosed or undisclosed) or sub-contractors of any such person, firm, company or other legal entity.
1.3 'Customer Nominated Product' means a Product that is not sourced by the Company but which at the request of the Customer the Company has agreed to purchase from the supplier thereof and supply to the customer.
1.4 'Food' means any food or beverage.
1.5 'Non-Food' means any goods which are not Food.
1.6 'Contract' means a contract between the Company and the Customer for the sale and purchase of the Products.
1.7 'Products' means any Food and/or Equipment and/or Non-Food agreed in the contract to be supplied by the Company to the Customer.
1.8 'Statutory Interest' means statutory interest as defined in the Late Payment of Commercial Debts (Interest) Act 1998.
1.9 'Terms and Conditions' means these terms and conditions of sale.
2. APPLICABILITY OF TERMS AND CONDITIONS These terms and conditions shall be incorporated into the contract and shall apply in place of and prevail over any terms and conditions contained or referred to in any communication from the Customer or implied by custom or practice. Other purported terms and conditions are expressly rejected by the Company.
3. ORDERS AND CONTRACTS By placing an order with the Company either via the Company's telesales department, Electronic Data Interchange the Customer is offering to contract with the Company on these Terms and Conditions. The contract shall be formed when the Company acknowledges acceptance of the Customer's order or delivers the Products to the Customer whichever occurs earlier. The Contract is subject to availability of stock. The Company may amend its published prices at any time prior to the formation of the Contract in accordance with this Condition. Any current price list replaces all previous price lists. Prices are quoted exclusive of VAT which shall be applied if applicable.
4. VARIATIONS AND DISCOUNTS
4.1 Unless otherwise agreed in writing the Company reserves the right to make such amendments to the Contract as it thinks fit or to terminate the Contract should any information or data supplied by the Customer to the Company prove to be incomplete or inaccurate in any respect.
4.2 The Company reserves the right to vary or alter the specification of Products without notice unless otherwise agreed in writing with the customer.
4.3 Any discount which may be agreed between the Customer and the Company will only be binding on the Company if such an agreement is evidenced in writing and these Terms and Conditions are strictly complied with.
4.4 Any discount deducted by the Customer from payment to the Company for Products supplied must be evidenced by a debit note and supporting calculation of discount. In the absence of such documentation the discount will not be accepted by the Company and the sum will be deemed to remain due to the Company by the Customer.
4.5 Any forbearance by the Company in continuing to allow discounts in the event of breach by the Customer of any of these Terms and Conditions shall not be deemed to be a waiver of the Company's rights and the Company shall be entitled to claim the undiscounted price of all Products supplied under the Contract.
5. TITLE in the Products shall not pass to the Customer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of the Products and all other sums which are or which become due to the Company from the Customer on any account. Payments by credit card are subject to a surcharge of 4% for American Express and 2% for all other credit cards. This is to cover the cost of the commission charges we have to pay to our credit card providers for payments made by credit card. Customers are not charged for making payment by debit card.
6. SETTLEMENT TERMS
6.1 A 50% prepayment of the expected catering spend must be paid before the event. The Company are entitled to cancel all pre-booked catering if payment is not received.
6.2 Where credit is granted, unless otherwise agreed in writing all sums payable in respect of Food and Non-Food must be paid without deductions within 30 days from the end of the calendar month in which the invoice was raised.
6.3 Failure to pay by the due date shall entitle the Company to suspend delivery of all unexecuted orders. The time for payment of the price of the Products shall be of the essence.
6.4 The Company reserves the right at any time in its absolute discretion to demand immediate payment of any account whether due or not and to take legal action to recover the debt and costs. 6.5 If payment is not made in accordance with this Condition, the Company reserves the right to charge Statutory Interest on the overdue balances for the period from the date upon which the payment became due until the date on which payment is made including any period after the date of any judgement or decree against the Customer.
6.6 In the event of any cheques, standing orders or direct debits due from a Customer to the Company being dishonoured, a charge of £45 (or such other sum as the Company may from time to time advise the Customer) will be made on the Customer's account to cover bank and administrative costs.
6.7 The Company reserves the right in its absolute discretion to refuse to grant credit.
7. CANCELLATION OF CONTRACT The Contract may not be cancelled by the Customer without the written consent of the Company. The Company reserves the right upon consent being given to levy a cancellation charge of not less than 20% of the standard list price of the Products which are the subject of the Contract to cover the Company's losses arising from the cancellation. Non-stock Products ordered on behalf of the Customer cannot be returned, unless the manufacturer agrees to accept them.
8. FORCE MAJEURE The Company reserves the right to defer the date of delivery or reduce the volume of Products ordered by the Customer or to cancel the contract without liability to the Customer if it is prevented from or delayed in the carrying out of its obligations under the Contract due to circumstances beyond its reasonable control including without limitation any failure or delay on the part of the manufacturer of any of the Products to supply the Products to the Company, any strike, lock-out or other industrial action, fire, explosion, flood, closure of motorways or other roads leaving no alternative route, unusually severe weather conditions or unusually severe traffic congestion which could not reasonably have been anticipated leaving no alternative route, loss of power or telecommunications systems or computer failure or breakdown.
9. ADDITIONAL TERMS
9.1 Failure or delay on the part of the Company in enforcing any provision of the Contract shall not be construed as a waiver of any of the Company's rights under the Contract. Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Customer shall not be deemed to be a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
9.2 If any provision of the Contract is found by any Court, tribunal or other administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability, or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
9.3 The Company, but not the Customer, may assign its rights and obligations under the Contract. 8.4 Any written communication given pursuant to the Contract must be sent by pre-paid first class post to the registered office of the addressee or such other address as may have been notified in writing and shall be deemed to have been received by the addressee two days after the date of posting.
9.4 The parties to the Contract do not intend that any term of the Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.
9.5 The Contract shall be governed by the laws of England and the Company and the Customer agree to submit to the non-exclusive jurisdiction of the English Courts.
9.6 If the Customer is a partnership the liability of the individual partners to the Company shall be joint and several.
9.7 The signature on behalf of a Customer who is a limited company by any person purporting to sign with the Customer's authority shall bind the Customer and the Customer shall be liable to comply with the terms of the Contract.
9.8 The Customer shall be liable to comply with the terms of the Contract and pay for any Products which are ordered using its Customer account number.
9.9 The Company reserves the right to amend these Terms and Conditions from time to time on giving not less than 7 days prior notice to the Customer.
9.10 All damages and broken equipment will be charged at the full replacement value.
10. INDEMNITY AND LIABILITY
10.1 Except to the extent caused directly by the negligent acts or omissions of the Company, its employees or agents, the Customer shall indemnify and keep indemnified the Company from and against all actions, proceedings, costs, claims, liabilities, and expenses arising out if or in connection with all or any of the following:-
10.1.1 Injury of or death of any person within the Licensed Premises during the Contract Period;
10.1.2 Loss or destruction of or damage to the goods of any person within the Licensed Premises during the Contract Period;
10.1.3 Failure by the Customer upon the determination of this Agreement to promptly and properly vacate the Licensed Premises
10.1.4 Any act, omission, negligence or other thing done or omitted to be done by the Customer or any other person coming or being upon the Licensed Premises by the direction, invitation or permission of the Customer;
10.1.5 All damage to the Licensed Premises which arises during the Contract Period;
10.1.6 Any claim made by any person participating in the Event or employed for the purposes of the Event by the Customer;
10.2 The Company will not be liable for any loss or damage whatsoever which the Customer, its exhibitors, sub-licensees, staff, visitors or workmen may incur or sustain by reason or on account of any statutory or other authority preventing or restricting a user of the Licensed Premises or the approaches or entrances thereto or exits therefrom in any particular manner and this Agreement shall not be annulled or affected nor shall any abatement be made in the consideration payable hereunder by reason or on account of any such interference as aforesaid.
10.3 The Company does not accept liability for loss or damage to any object, equipment, furniture, stock or other property brought onto the Licensed Premises by the Customer or hired by the Company on the Customer’s behalf howsoever such loss or damage may occur unless as a direct result of the Company’s negligence. All such property will remain under the care, custody and control of the Customer and is entirely at the Customer’s own risk.
10.4 The Company shall have no liability to the Customer for any consequential loss to the Cusomer arising out of or in connection with the provision of the Services pursuant to this Agreement and (except in respect of death or personal injury resulting from negligence of the Company) the total liability of the Company for any other loss of the Customer shall not exceed the price payable by the Customer for the Services.
10.5 The Customer shall be responsible for, and shall release and indemnify the Company at all times, on demand from and against all liabilities for:
10.5.1 death and/or personal injury of any third party and/or employees of the Company and its partners
10.5.2 any physical loss of or damage to property (including property belonging to the Company or for which the Company is responsible);
10.5.3 actions, claims, demands, costs, charges and expenses (including legal expenses on an indemnity basis), which may arise out of, or in consequence of, the event or anyone attending the Event promoted or organised by the Customer or non-performance by the Customer of its obligations under this Agreement.
11.1 The Customer shall, at its expense, take out and maintain throughout the Contract Period insurance in respect of its liabilities under this Agreement with an insurer approved by the Company and for an amount of cover not less than five million pounds sterling in respect of public liability for any one or series of occurrences, such policy to be endorsed to record the interest of the Company and held on file with the Company.
11.2 The Customer shall, at the request of the Company, produce before the Event a certificate of such insurance for inspection by the Company.
11.3 Insurance taken out by the Customer pursuant to this Clause 10 shall in no way relieve the Customer of any obligation on the part of the Customer under this Agreement.
12.1 All Charges to be paid hereunder are exclusive of VAT which will, where relevant, be charged to the Customer at the rate or rates from time to time applicable.
13. NUMBERS ATTENDING AND CONFIRMATION OF BOOKING
13.1 At the time of confirmation of the booking, the customer shall provide details of the guaranteed minimum numbers, and shall receive a deposit invoice on these numbers based on average spend.
13.2 The Customer shall confirm the Expected Final Numbers attending not less than 5 working days prior to the Event and any small increase to final catering numbers 72 hours (excludes Saturday and Sunday) before the Event. Charges for the Services will be based on that number or the number actually attending, if greater. If the Company provides the Services for any number less than the Guaranteed Minimum Number previously advised on the contract, the Company’s charge to the Customer based on the number previously advised, will nevertheless apply in full.
14.1 The Customer may not transfer, assign or sub-contract any of its rights or obligations under this Agreement.
14.2 The Company does not permit the use of any outside caterers by the Customer and the Customer shall not (nor permit any attendees at the Event to) bring any items of food or beverage into the event save with written consent of the Company.
14.3 No variation of this Agreement shall be effective unless agreed in writing and signed on behalf of the Company and the Customer.
14.4 This Agreement shall prevail over any terms and conditions offered by the Customer.
14.5 If any provision of this Agreement is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of this Agreement and the remainder of the provision in question shall not be affected.