Terms - Trans Sport Ltd

TERMS AND CONDITIONS

Definitions and Interpretation

Agreement: the contract formed by the Supplier’s acceptance of an Order for the supply of Services in connection with the Specification subject to these terms and conditions.

Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

Business Hours: the period from 9:00am to 5:00pm on any Business Day.

Client: means the company who purchases the Services from the Supplier in accordance with the Order and these terms and conditions.

Client Equipment: means the client’s equipment dealt with by the Supplier in connection with this Agreement.

Client Information: any information provided by the Client to the Supplier that the Supplier uses to form the basis of the Specification.

Deliverables: the deliverables supplied by the Supplier to the Client at the Site as set out in the Specification.

Order: a formal order form sent by the Client to the Supplier, requesting the supply of Services, which the Supplier may accept or reject.

Payment Terms: has the meaning set out in the Quotation and or Specification.

Price: the price for the supply of Services outlined in the Specification.

Quotation: any quotation provided by the Supplier to the Client for the supply of Services. Quotations shall not constitute an offer for acceptance and shall have no force or effect, and amended from time to time as agreed between the parties.

Services: the services, including the Deliverables, supplied by the Supplier to the Client as set out in the Specification.

Site: the site address outlined in the Specification.

Specification: the description of the Services which forms part of the Order, including the Deliverables provided in writing by the Supplier to the Client, and amended from time to time as agreed between the parties.

Supplier: means Trans-Sport TV Limited, registered in England and Wales with company number 09302379.

Supplier’s Materials: has the meaning set out in clause 12.2.

Survey: the survey of the Site conducted by the Supplier in accordance with clause 2.2.

Third Party Equipment: means any third party goods which the Client procures in connection with this Agreement.

In this Contract unless the context otherwise requires:

words importing persons include firms, companies and corporations and vice versa;

any obligation on any Party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;

where the word ‘including’ is used, it shall be understood as meaning ‘including without limitation’;

the term ‘in writing’ or ‘written’ includes email.

Basis of Agreement

The Client shall provide all of the required and necessary Client Information to the Supplier, to enable the Supplier to form the basis of the Quotation and or Specification and the Client shall ensure that any Client Information it provides to the Supplier is true, accurate and complete in all respects.

Subject to the Client providing Client Information that is acceptable to the Supplier, the Supplier shall rely on the Client Information and Survey (where necessary) and submit to the Client a Quotation and or Specification for the supply of Services on the date agreed by the Parties.

On receipt of the Specification, the Client will issue a formal signed Order to the Supplier to signify the Client’s acceptance of the Quotation and or Specification, including the Services, Price and Payment Terms. The Order constitutes an offer by the Client to purchase Services in accordance with this Agreement.

The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Agreement shall come into existence (“Commencement Date”). The Supplier reserves the right to accept or reject the Order.

The specification shall specify:

the Services to be supplied by the Supplier;

the estimated start date and all other relevant time estimates for the provision of the Services;

the Price payable for the Services and the associated Payment Terms;

the Site address.

The Specification shall be principally based on the Client Information but it may also be based on a Survey (where necessary from time to time). The Specification will not seek to amend or qualify the Client Information without first obtaining the Client’s written consent to such amendments or qualifications.

Client Information may be varied or added to from time to time, as agreed between the parties in writing (including by email) and signed by both Parties. The changes shall be clearly identified in writing by the Client. The Supplier reserves the right to vary the Quotation and or Specification including the Price and/or Payment Terms in the event that the Client Information is altered by the Client in accordance with this clause 2.7.

The Supplier reserves the right to amend the Specification if necessary to comply with all applicable laws and regulatory requirements or if the amendment will not materially affect the nature or quality of the Services.

These terms and conditions apply to the Agreement to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.

In the event of a conflict between this Agreement, the Order and the Specification, the terms of this Agreement shall prevail.

Performance of the Services

The Supplier shall supply the Services to the Client at the Site and they shall be provided in accordance with this Agreement. The Supplier shall use all reasonable endeavours to meet any performance dates and times specified in the Specification, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

If the Supplier’s performance of any of its obligations under the Agreement is prevented or delayed by an act or omission by the Client or the failure of the Client to comply with any of its obligations under this Agreement (“Client Default”):

the Supplier shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations; and

the Client shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Client Default.

If the Client causes a delay of more than thirty (30) days, leading to extra storage costs for the Supplier, the Client shall be liable to pay these extra storage costs.

Payment

The Client shall pay the Supplier the Price for the provision of the services.

All payments of the Price or instalments thereof or any other amounts due under the Agreement shall be made in accordance with the Payment Terms.

All payments of the Price or instalments thereof or any other amounts due under the Agreement are exclusive of VAT and/or any other applicable tax or levy, which shall be charged in addition at the rate in force at the date any payment is required from the Client.

The Supplier may by giving written notice to the Client at any time before completion of the Services, increase the Price to reflect any increase in the cost of the Services that is due to:

any factor beyond the Supplier’s control;

any request by the Client to change the delivery date, nature or quantity of the Services, Deliverables, or the Specification;

any delay or additional costs caused by any instructions of the Client or failure of the Client to give the Supplier adequate or accurate Client Information.

The Supplier reserves the right to invoice the Client before the Services are performed where indicated and set out in the Payment Terms.

The Client agrees to pay each invoice submitted by the Supplier within thirty (30) days from the date of the invoice in full and cleared funds and to make all payments of the Price and instalments thereof or any other amounts due under the Agreement in compliance with the Payment Terms. Time for payment shall be of the essence.

Without prejudice to any other right or remedy of the Supplier, if the Client fails to make any payment due to the Supplier by the due date in accordance with any Payment Terms, the Supplier reserves the right to charge interest on all overdue amounts at the rate of 4% per annum above the current Barclays plc base rate accruing on a daily basis from the due date until the date of actual payment of the full amount due.

The Deliverables

On receipt of the signed Order from the Client or written indication of the acceptance of the same, the Supplier shall order the Deliverables.

The Deliverables are made to order in accordance with drawings which are agreed and signed off by the Client and as such the Supplier shall not be liable for any losses incurred by the Client due to delayed delivery of the Deliverables.

The Supplier shall deliver the Deliverables to the Site as previously agreed with the Client.

The Client shall be responsible for unloading the Deliverables on arrival at the Site and the Deliverables shall be at the Client’s risk during unloading. The Supplier shall not be liable for any loss or damage caused as a result of any act or omission by the Client or any third party unloading or assisting with unloading of the Deliverables.

Risk

The risk in the Deliverables shall pass to the Client on delivery to the Site.

Client Equipment

The Client shall be fully responsible for maintaining up to date insurance for all Client Equipment in accordance with clause 15 under this Agreement and risk in the client equipment shall remain with the Client throughout the Agreement.

Where the Specification includes the storage of Client Equipment by the Supplier, the Supplier shall:

store such Client Equipment separately from other goods and equipment held by the Supplier so that it remains readily identifiable as the Client’s property;

maintain the Client Equipment in satisfactory condition for the period of storage outlined in the Specification or for such other time as agreed by the Client and Supplier.

The Client may access the Supplier’s premises during Business Hours for the purpose of removing any Client Equipment, subject to providing the Supplier with two months’ prior written notice.

Property

All Supplier Materials are the exclusive property of the Supplier or its lessor.

All Client Equipment shall be the property of the Client subject to the terms of clause 17.1.3.

The title of the Deliverables shall pass to the Client when the Services are paid for in full.

Until title to the Deliverables has passed to the Client, the Client shall:

hold the Deliverables on a fiduciary basis as the Supplier’s bailee;

store the Deliverables separately from all other goods held by the Client so that they remain readily identifiable as the Supplier’s property;

not remove, deface or obscure any identifying mark or packaging on or relating to the Deliverables;

maintain the Deliverables in satisfactory condition and keep them insured against all risks for their full price on the Supplier’s behalf from the date of delivery;

notify the Supplier immediately if it becomes the subject to any of the events listed in clause 16.1; and

give the Supplier upon request such information relating to the Deliverables as the Supplier may require from time to time.

If before title to the Deliverables passes to the Client, the Client becomes subject to any of the events listed in clause 16.1, or the Supplier reasonably believes that any such event is likely to happen, the Supplier reserves the right, provided the Deliverables have not been re-sold or irrevocably incorporated into another product, without limiting any other right or remedy, to require the Client to immediately deliver up the Deliverables, and if the Client fails to do so promptly, the Supplier may enter the premises of the Client or any third party where the Deliverables are stored in order to recover them, and the Client shall use all reasonable endeavours to secure such access for the Supplier as required in such circumstances.

Intellectual Property Rights

All intellectual property rights in or arising out of or in connection with the Services shall be owned by the Supplier or its licensor.
The Client shall indemnify the Supplier against all Losses incurred by the Supplier as a result of any claim that the supply, receipt or use of the Client Equipment infringes the intellectual property rights of any third party.

Confidentiality

A Party (“Receiving Party”) shall at all times 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 the Receiving Party by the other Party (“Disclosing Party”), its employees, agents or subcontractors and any other confidential information concerning the Disclosing Party’s business, its products or services which the Receiving Party may obtain.

Each Party may disclose the other Party’s confidential information:

To its employees, officers, representatives or advisers for the purposes of carrying out the Party’s obligations under this Agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 10.

As may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

Neither Party shall use the other Party’s confidential information for any other purpose than to perform its obligations under the Agreement.

This clause 10 shall survive the termination of the Agreement.

Assignment and sub-contracting

The Supplier shall not assign, transfer, charge or otherwise deal with this Agreement or any obligation under this Agreement without the prior written consent of the Client. Without prejudice to the generality of the foregoing, the Supplier shall not sub-contract the Services or any right, liability or obligation without the prior written consent of the Client except to the extent specifically permitted under this Agreement.

The Client’s obligations

The Client acknowledges and agrees that for the Supplier to be able to provide the Services the Client shall:

grant to the Supplier sufficient access (or procure the grant thereof) to the Site at any and all times required during normal working hours to allow the Supplier to safely carry out the Services. The Supplier shall not be held responsible for any delays or financial losses caused as a result of the Client’s failure to provide or procure access to the Site.

Co-operate with the Supplier as the Supplier reasonably requires, and take delivery of Deliverables within a reasonable time of them being ready.

Provide to the Supplier such information and documentation as the Supplier reasonably requires, and ensure that the same is accurate and complete.

Subject to any provisions, limitations or requirements in the Agreement, make available to the Supplier the facilities, resources, working space and staff as specified in the Specification and/or as the Supplier reasonably requires from time-to-time.

Instruct the Client’s staff and agents to co-operate with and assist the Supplier.

Obtain all necessary and required licences, consents and permits to allow the Supplier to perform the Services.

Unless and to the extent otherwise agreed in writing by the Parties the Client shall keep all materials, equipment, machinery, documents and other property of the Supplier or its lessor (“Supplier Materials”) at the Site, or on the Client’s premises, in safe custody, at its own risk, in good condition, and not use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation.

Services

The Services shall be carried out at the Site or such other place as the Parties shall agree.

Warranties

The Supplier warrants, represents and undertakes that:

It will carry out the Services with reasonable skill, care and diligence.

Subject always to clause 15.4, the Deliverables will correspond in all material respects with the Specification.

The Supplier’s employees and agents will have the necessary skills, professional qualifications and experience to perform the Services in accordance with the Specification. The Supplier shall be responsible for all costs, fees, expenses and charges for any necessary or required training for the Supplier’s employees and agents to perform the Services.

Subject always to clause 15.4, the Services and Specification shall not infringe any third party intellectual property rights.

It has full capacity and authority to enter into this Agreement.

It shall provide such collateral warranties and such level of professional indemnity insurance as it may reasonably require.

It will be responsible for the work of any sub-contractor that it chooses to use in accordance with these terms and conditions.

Liability and Insurance

Nothing in this Contract limits or excludes any liability that cannot be limited or excluded for either party including death or personal injury caused by its negligence or the negligence of its employees, agents or subcontractors, or for fraud or fraudulent misrepresentation.

If any part of the Services is performed negligently or in breach of the provisions of this Agreement then, at the request of the Client, the Supplier will re-perform the relevant part of the Services until such time as the Supplier is released from its obligations under the Agreement.

References to liability in this clause include every kind of liability that can arise in connection to the Agreement (including liability in negligence). Subject to clause 15.1:

the Supplier shall under no circumstances whatsoever be liable to the Client for any loss of profit, loss of goodwill, or any indirect or consequential loss arising under or in connection with the Agreement;

the Supplier’s total liability to the Client in respect of all other losses arising under or in connection with the Contract shall under no circumstances exceed £50,000 in the case of damage to property, and in all other cases the Supplier’s total liability shall not exceed the value of the Price under the Agreement.

The Supplier shall not be liable for any defect in the Deliverables (including breach of any of the warranties given at clause 14 or Services resulting from:

the Client’s failure to follow the Supplier’s instructions (oral or written) as to the storage, installation, use or maintenance of the Deliverables;

the Supplier following any Client Information;

the Client or a third party altering or repairing the Deliverables without the written consent of the Supplier;

fair wear and tear, wilful damage, negligence or abnormal working conditions;

changes made to the Deliverables to ensure compliance with statutory and regulatory standards resulting in them differing from the Specification.

Each of the Parties acknowledges that, in entering into this Agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this Agreement, and any conditions, warranties or other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law.

The Client shall maintain in full force and effect appropriate insurance policies with reputable and financially sound insurance providers. Such insurance shall cover all liabilities that the Client may incur under this Agreement including but not limited to (i) Client Equipment being stored by the Supplier, (ii) Client Equipment being transported or shipped to a Site, and (iii) unloading and loading Client Equipment at a Site. Upon request, the Client shall provide evidence of such insurance and confirm that the policies remain valid and adequate throughout the term of the Agreement.

Where machinery, vehicles or equipment supplied by the Supplier is used by non-Supplier personnel at the Site, the Client is liable for any damage, injury, costs and losses incurred by the Client, the Supplier, or any third party, caused by such use. The Supplier shall not be liable for the same. The Client shall indemnify the Supplier, and keep it indemnified, against all such damage, injury, costs, expenses (including reasonable legal expenses) and losses.

Where the Agreement is solely for the hire of equipment without any services (dry hire), the Client shall insure the equipment whilst on the Site, and shall keep the equipment in accordance with clause 12.

Where the Supplier transports or ships Third Party Equipment without charge and with the knowledge of the third party, the Supplier shall not be liable for any damage to or loss of the Third Party Equipment. The Client shall indemnify the Supplier against any claims made by the third party in this regard.

Should the Client supply any artwork or text for use by the Supplier, the Client is fully responsible for any claims of intellectual property rights infringement, and indemnifies the Supplier against all such claims.

Termination

Without prejudice to clause 19.1 and any other remedies or rights, either Party may terminate this Agreement at any time by written notice to the other Party if:

the other Party is in material breach of its obligations under this Agreement, and, where the breach is capable of remedy, the breach is not remedied within thirty (30) days of receipt of the notice which specifies the breach and requires it to be remedied; or

if the other Party becomes insolvent or if an order is made or a resolution is passed for the winding up of the other Party (other than voluntarily for the purpose of solvent amalgamation or re-construction), or if an administrator, administrative receiver or receiver is appointed in respect of the whole or any part of the other Party’s assets or business, or if the other party makes any composition with its creditors or takes or suffers any similar or analogous action in consequence of debt.

The Supplier may terminate this Agreement without notice if the Client fails to pay all payments of the Price or instalments thereof or any other amounts due under the Agreement in compliance with the Payment Terms on the due date for payment.

The Supplier may terminate the Agreement at any time without limiting its other rights and remedies by giving the Client two (2) months’ written notice.

Consequences of Termination

On termination of the Agreement for any reason:

the Client shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest, and in respect of the Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Client immediately upon receipt;

the Client shall return to the Supplier all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Client fails to do so, then the Supplier may enter the Client’s premises and take possession of them. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Agreement;

the Client may enter the Supplier’s premises, subject to providing prior notice, to recover any Client Equipment within two months’ of the termination date, and the Client’s right to access the Supplier’s premises afterwards shall terminate.

If the Client fails to remove any of the Client Equipment as required, the Supplier, may without prejudice to its other rights and remedies, give notice in writing to the Client of its intention to sell or otherwise dispose of such Client Equipment if the Client Equipment is not removed within 14 days. On the expiry of such period, the Supplier shall be entitled to sell or otherwise dispose of all or some of the Client Equipment which have not been removed, as agent of the Client and at the Client’s expense and risk. The Supplier shall not be liable for the price obtained for the sale or disposal of the Client Equipment.

The Supplier shall have the right to retain the Client Equipment in its possession pending settlement by the Client of all amounts due under this Agreement. In the event of non-payment by the Supplier in accordance with the Payment Terms of all outstanding invoices, the Supplier shall have the right to seize the Client Equipment to the value of the sums outstanding and legal ownership of the Client Equipment including the full benefit of any warranties/guarantees for the Client Equipment shall pass to the Supplier who shall be entitled to exercise all legal rights associated with legal ownership such as resale.

On termination of the Agreement by the Supplier due to the Client’s breach of Contract or due to any of the events listed in clause 16.1:

the Supplier shall be entitled to retain any deposit paid by the Client under this Contract;

the Supplier shall be entitled to submit an invoice for any Deliverables which have been made or ordered to satisfy the Agreement, which shall be payable by the Client immediately upon receipt.

The accrued rights, remedies, obligations and liabilities of the Parties as at the expiry or termination of this Agreement shall not be affected, including the right to claim damages in respect of any breach of Agreement which existed at or before the date of termination or expiry.

Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Agreement shall remain in full force and effect.

General

Notices

Any notice or other communication required to be given to a Party under or in connection with this Agreement shall be in writing and shall be delivered to the other Party either by pre-paid first-class post, recorded delivery or commercial courier to its registered office or by email to director or senior manager to such email address as is notified to the Party under this clause 18.1.1 for such purposes. Any notice or other communication shall be deemed to have been received (a) if sent by email, at 9am the following Business Day, or (b) if sent by pre-paid first class or recorded delivery, at 9am on the second Business Day after posting, or (c) if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.

Force majeure

Neither Party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in the performance of any of its obligations under this Agreement which result from circumstances beyond the reasonable control of that Party. The Party affected by such circumstances shall promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than 6 months, either Party may terminate this Agreement by written notice to the other Party.

Variation

Except as set out in these Conditions, no variation of the Agreement shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).

Entire Agreement

This Agreement constitutes the whole Agreement between the Parties in connection with the Quotation and or Specification and supersedes and replaces any and all prior written or oral Quotation, agreements, promises, assurances, warranties, representations or understandings between them.

The Parties acknowledge and agree that they have not entered into this Agreement on the basis of any statement or representation that is not expressly incorporated into this Agreement.

Nothing in this Contract excludes liability for fraud.

Waiver

No failure or delay by the Supplier in exercising any right or remedy under this Contract shall operate as a waiver of the same nor shall any single or partial exercise of any right or remedy, power or privilege preclude any further exercise of the same or the exercise of any other right or remedy. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies provided by law.

Severability

If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement. If any provision or part-provision of this Agreement is deleted under this clause 18.6 the Parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

Quote Validity

All prices set out in the Quotation are valid for up to thirty (30) days after the date stated on the Quotation.

If a new Quotation is issued it shall replace and supersede any previous quotations.

Disputes

If any dispute or difference arises in respect of this Contract, the Supplier and the Client shall attempt in good faith to resolve such dispute or difference promptly through negotiations between their respective senior executives having authority to settle the same.

The Client or Supplier may at any time refer a dispute or difference to mediation or arbitration.

Subject to clause 19.1 the Parties agree that all disputes or differences of whatever nature arising out of or in connection with this Agreement shall be referred to the Technology and Construction Court (the “Court”).

If and insofar as this Agreement leaves any matter or thing to the decision or opinion of any person (including any account, requirement or notice) the same shall not prevent the Court, in determining the rights and liabilities of the Parties, from making any finding necessary to establish that such decision or opinion was correctly made or expressed on the facts found by the Court or to establish what or what other decision or opinion should have been made or expressed and giving effect thereto as if no decision or opinion had been made or expressed.

Proper Law and Jurisdiction

This Agreement, and all disputes or claims (including non-contractual disputes or claims) arising out of or in connection to it, are subject to the law of England and Wales and the exclusive jurisdiction of the courts of England and Wales.

Trans-Sport.tv Limited Terms and Conditions