Terms and Conditions

 

Interpretation

 The following definitions and rules of interpretation apply in these terms and conditions:-

Company: Eastern Exhibition & Display Limited (Company Number: SC082988) trading as Eastern Exhibition and Display.

Conditions: these terms and conditions as amended from time to time.

Contract: the contract between the Company and the Customer for the supply of Goods and/or Services in accordance with these Conditions.

Customer: the person who purchases the Goods and/or Services from the Company.

Deliverables: the deliverables set out in the Order produced for or supplied to the Customer by the Company.

Equipment: means all equipment supplied, including but not limited to, all staging and bespoke set elements, all display elements, all lighting effects, equipment and control, all audio systems, microphones, equipment and control, all video and camera equipment, all projection and display effects and equipment and all show control machines including laptops and computers.

Goods: the goods or any part of them set out in the Order.

Goods Specification: any specification for the Goods, including any relevant plans or drawings, that is agreed in writing by the Customer and the Company.

Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Order: the Customer’s order for the supply of Goods and/or Services as set out in the Customer’s purchase order form or the Customer’s written acceptance of the Company’s quotation, as the case may be.

Services: the services, including the Deliverables, supplied by the Company to the Customer.

A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality). A reference to writing or written includes email but not fax. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

Basis of Contract

The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions. The Order shall only be deemed to be accepted when the Company issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date). Any quotation given by the Company shall not constitute an offer.

Any samples, drawings, descriptions or advertising issued by the Company and any illustrations or descriptions contained in the Company’s brochures or website are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract nor have any contractual force.

All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.

Goods

To the extent that the Goods are to be manufactured in accordance with a Goods Specification supplied by the Customer and agreed by the Company, the Customer shall indemnify the Company against all liabilities, costs, expenses, damages and losses suffered or incurred by the Company arising out of or in connection with any claim made against the Company for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Company’s use of the Goods Specification. This clause shall survive termination of the Contract.

The Company reserves the right to amend the specification if required by any applicable statutory or regulatory requirement, and the Company shall notify the Customer in any such event.

The Company shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location). Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location.

Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. If the Company fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Company shall not be liable for any delay in delivery of or failure to deliver the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

If the Customer fails to take delivery of the Goods within three Business Days of the Company notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by the Company’s failure to comply with its obligations under the Contract in respect of the Goods:

• delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day following the day on which the Company notified the Customer that the Goods were ready; and
• the Company shall store the Goods until actual delivery takes place, and charge the Customer for all related costs and expenses (including insurance).

If ten Business Days after the day on which the Company notified the Customer that the Goods were ready for delivery the Customer has not taken actual delivery of them, the Company may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.

The Company may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

Quality of Goods

The Company warrants that on delivery, the Goods shall be free from material defects in design, material and workmanship.

Subject to the paragraph immediately below, if:

• the Customer gives notice in writing to the Company within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in the paragraph immediately above;
• the Company is given a reasonable opportunity of examining such Goods; and
• the Customer (if asked to do so by the Company) returns such Goods to the Company’s place of business at the Customer’s cost,

the Company shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.

The Company shall not be liable for the Goods’ failure to comply with this warranty if:

• the defect arises because the Customer failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
• the defect arises as a result of the Company following any drawing, design or specification contained in the Goods Specification or otherwise supplied by the Customer;
• the Customer alters or repairs such Goods without the written consent of the Company;
• the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
• the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards.

Except as provided in the paragraphs above (being below the heading “Quality of Goods”, the Company shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out above.

These Conditions shall apply to any repaired or replacement Goods supplied by the Company.

Title and Risk

The risk in the Goods shall pass to the Customer on completion of delivery. The Customer may use the Goods in the ordinary course of its business (but not otherwise) before the Company receives payment for the Goods. Title to the Goods shall not pass to the Customer until the Company receives payment in full (in cash or cleared funds) for the Goods.

Until title to the Goods has passed to the Customer, the Customer shall:

• store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Company’s property;
• not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
• maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Company’s behalf from the date of delivery;
• notify the Company immediately if it becomes subject to any event that would entitle the Company to immediately terminate the Contract; and
• give the Company such information as the Company may reasonably require from time to time relating to:
• the Goods; and
• the ongoing financial position of the Customer.

At any time before title to the Goods passes to the Customer, the Company may require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.

Services

The Company shall supply the Services to the Customer in accordance in all material respects with the Order or any service specification issued by the Company (Service Specification) as the case may be. The Company reserves the right to amend any Service Specification it may issue if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Company shall notify the Customer in any such event.

The Company shall use all reasonable endeavours to meet any performance dates quoted for the Services but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services. The Company warrants to the Customer that the Services will be provided using reasonable care and skill.

The Company reserves the right to amend the Service Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Company shall notify the Customer in any such event.

Where the Services involve the supply of Equipment by the Company to the Customer, the Company undertakes to use its reasonable endeavours to ensure that the Equipment is in good working order and condition at the point of delivery to the Customer (or to a venue nominated by the Customer). The Equipment supplied is intended only to be fit for purpose for which manufacturer designed or intended. Any other use is at the Customer’s own risk and responsibility. The Customer shall be responsible for any interference with or damage to needed to the Equipment caused by any third parties during the term of the Contract and shall be liable for the cost of any loss or repair. For the avoidance of doubt, the Equipment shall at all times remain the property of the Company. The Customer shall not re-hire, sub-hire, sub-contract, pledge, cause a lien to be created or otherwise deal with the Equipment or any part thereof.

Customer’s Obligations

The Customer shall:

• ensure that the terms of the Order and any information it provides in the service specification or the goods specification as the case may be are complete and accurate;
• co-operate with the Company in all matters relating to the Goods and Services;
• provide the Company, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Company to deliver the Goods and provide the Services;
• provide the Company with such information and materials as the Company may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
• obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
• comply with all applicable laws, including health and safety laws;
• insure any original materials supplied to the Company and where the Customer considers such materials to be of extremely high value, this fact must be declared to the Company in writing prior to the work being undertaken; and
• keep all materials, equipment, documents and other property of the Company (Company Materials) at the Customer’s premises in safe custody at its own risk, maintain the Company Materials in good condition until returned to the Company, and not dispose of or use the Company Materials other than in accordance with the Company’s written instructions or authorisation.

If the Company’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default), without limiting or affecting any other right or remedy available to it, the Company shall have the right to suspend performance of the Services until the Customer remedies the Customer Default and the Company shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Company’s failure or delay to perform any of its obligations as a result of the Customer Default. The Customer shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Customer Default.

Charges and Payment

The price for Goods or Services shall be the price set out in the Order and shall be exclusive of all costs and charges of packaging, insurance, transport of the Goods unless otherwise agreed in writing between the Company and the Customer. The Company reserves the right to increase the price of the Goods or Services, by giving notice to the Customer at any time before delivery in respect of Goods or completion of the Services, to reflect any increase in the cost of the Goods or Services to the Company that is due to any factor beyond the control of the Company  (including but not limited to changes to artwork or specifications by the Customer, foreign exchange fluctuations, increases in supplier costs, taxes and duties, and increases in labour, materials and other manufacturing costs) or any request by the Customer to change the delivery date(s), quantities or types of Goods or Services ordered, or the Goods or Services specification.

In respect of Goods, the Company shall invoice the Customer prior to delivery unless it is agreed in writing between the Company and the Customer that the Company shall invoice the Customer on or after delivery. In respect of Services, the Company shall invoice the Customer on completion of the Services. Notwithstanding the foregoing provision, the Company reserves the right to invoice the Customer for a proportion of the charges for Services.

Unless otherwise provided in writing by the Company, the Customer shall pay each invoice submitted by the Company within 30 days of the date of the invoice in full and in cleared funds to a bank account nominated in writing by the Company. All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Company to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Company, pay to the Company such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.

If the Customer fails to make a payment due to the Company under the Contract by the due date, then, without limiting the Company’s rights to terminate the Contract, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest will accrue each day at 4% a year above the Bank of England’s base rate from time to time.

All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law.

Intellectual Property Rights

All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Company.

The Company grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract to copy and modify the Deliverables (excluding materials provided by the Customer) for the purpose of receiving and using the Services and the Deliverables. The Customer shall not sub-license, assign or otherwise transfer the rights granted pursuant to this paragraph.

The Customer grants the Company a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Customer to the Company for the term of the Contract for the purpose of providing the Services to the Customer.

The Customer warrants that any materials provided by the Customer will not in any manner infringe or violate any Intellectual Property Rights, nor any contractual, employment or property rights, duties of non-disclosure or other rights of third parties and the Customer agrees to indemnify, keep indemnified and hold the Company harmless from and against any actions, proceedings and losses arising from any breach, or alleged breach, of this warranty. This clause shall survive termination of the Contract.

 Data Protection

The following definitions apply in this section:

Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.

Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR, the Data Protection Act 2018 (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) and the guidance and codes of practice issued by the Information Commissioner or other relevant regulatory authority and applicable to a party.

Domestic Law: the law of the United Kingdom or a part of the United Kingdom.

Both parties will comply with all applicable requirements of the Data Protection Legislation. These terms are in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.

The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller and the Company is the Processor.

Without prejudice to the generality of the above paragraphs, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Company and/or lawful collection of the Personal Data by the Company on behalf of the Customer for the duration and purposes of the Contract.

Without prejudice to the generality of the above paragraphs, the Company shall, in relation to any Personal Data processed in connection with the performance by the Company of its obligations under the Contract:

• process that Personal Data only on the documented written instructions of the Customer unless the Customer is required by Domestic Law to otherwise process that Personal Data. Where the Company is relying on Domestic Law as the basis for processing Personal Data, the Company shall promptly notify the Customer of this before performing the processing required by the Domestic Law unless the Domestic Law prohibits the Company from so notifying the Customer;
• ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
• ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
• not transfer any Personal Data outside of the UK unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
  1. the Customer or the Customer has provided appropriate safeguards in relation to the transfer;
  2. the Data Subject has enforceable rights and effective legal remedies;
  3. the Company complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
  4. the Company complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
• assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
• notify the Customer without undue delay on becoming aware of a Personal Data Breach;
• at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the Contract unless required by Domestic Law to store the Personal Data; and
• maintain complete and accurate records and information to demonstrate its compliance with the above paragraphs.

Either party may, at any time on not less than 30 days’ notice, revise the above data protection provisions by replacing it with any applicable controller to processor standard clauses or similar terms adopted by the Information Commissioner or forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).

Confidentiality

Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted under these Conditions. Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract. This clause shall survive termination of the Contract.

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

• to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract, provided that it ensures that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause; and
• as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

Limitation of Liability THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.

Nothing in these Conditions shall limit or exclude the Company’s liability for death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; fraud or fraudulent misrepresentation; breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or defective products under the Consumer Protection Act 1987.

Except as otherwise provided in these Conditions, the Company shall not be liable to the Customer, whether in contract, delict or tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for any loss of profits; loss of business, agreements or contracts; loss of or damage to goodwill; and any indirect or consequential loss. Except as provided in these Conditions, the Company’s total liability to the Customer, whether in contract, delict or tort (including negligence), breach of statutory duty or otherwise, arising under or in connection with the Contract, shall be limited to the amount of the total charges paid by the Customer under the Contract. This clause shall survive termination of the Contract.

Except as otherwise provided in these Conditions, the Company’s total liability to the Customer, whether in contract, delict or tort (including negligence), breach of statutory duty or otherwise, arising under or in connection with the Contract, shall be limited to the total charges paid under the Contract.

Termination

Without affecting any other right or remedy available to it, the Company may terminate the Contract with immediate effect by giving written notice to the Customer if:

• the Customer commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 20 Business Days after receipt of notice in writing to do so;
• the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
• the Customer suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
• the Customer’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

Without affecting any other right or remedy available to it, the Company may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and the Company if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed at (b) to (d), or the Company reasonably believes that the Customer is about to become subject to any of them.

On termination of the Contract, the Customer shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the Customer immediately on receipt. The Customer shall also return all of the Company Materials and any Deliverables or Goods which have not been fully paid for. If the Customer fails to do so, then the Company may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.

Termination of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination. Any provision of the Contract that expressly or by implication is intended to have effect after termination shall continue in full force and effect.

Force Majeure

The Company shall not be in breach of the Contract nor liable for delay in performing or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.

General

If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.

The Company may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.

The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Company.

A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. This clause shall survive termination of the Contract.

Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.

Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case).

Any notice shall be deemed to have been received:

• if delivered by hand, at the time the notice is left at the proper address;
• if sent by pre-paid first class post or other next working day delivery service, at 9:00 a.m. on the second Business Day after posting.

The above notice provisions do not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

The Contract constitutes the entire agreement between the Company and the Customer and supersedes and extinguishes all previous agreements, assurances, warranties and representations between them, whether written or oral, relating to its subject matter. This clause shall survive termination of the Contract.

Any variation of these terms, which cancel all previous terms of business, must be agreed in writing and signed by a director of the Company.

The Contract between the Company and the Customer will be subject to Scots Law and the Scottish courts shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract. This clause shall survive termination of the Contract.

For the avoidance of doubt, it shall be assumed that in the absence of the Customer returning a signed copy of these Conditions to the Company, the Customer’s continuing instructions will confirm acceptance of them.

 

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Customer Signature

 

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