These are the Concession Standard Terms and Conditions of Promotional Space Limited (“PS”) which may be updated from time to time by notification in writing. Where there is any inconsistency between the provisions set out here and the Order Form (defined below), the provisions of these Terms and Conditions will apply. These Conditions and the Order Form shall apply to the Agreement to the exclusion of any other terms and conditions, agreements, arrangements, understandings, purchase orders and order forms.
1.Definitions In this Agreement, unless the context otherwise requires, the following expressions have the following meanings: “Agreement” means the contract for, amongst other things, hire of the Retail Space described in the Order Form and incorporating these Conditions; “Basic Facilities” means the hire of the Retail Space together with those goods, services or other facilities specified in the Order Form; “Concession” means the Concessionaire’s business activity referred to in the Order Form; “Concession Period” means the dates and times specified in the Order Form. Such times are all inclusive and include all installation, build, operational and removal times; “Concessionaire” means the person who, in the course of their business, has agreed to hire the Retail Space from PS; “Order Form” means a provisional “Order Form” of PS, signed having filled the form on the PS website, or email, fax, by the Concessionaire and returned and received by PS, and which is subject to these Conditions; “Business Activity” means the type of goods and/or services that the Concessionaire is permitted to promote and sell as set out in the Order Form; “Retail Space” means the part or parts of the Venue as agreed between the Venue and the Concessionaire but must not exceed (subject to availability) an internal area of 3m x 3m (or as alternatively indicated in the order form); or an external area of 5m x 5m, and not exceeding 2.5m in height no more than 2 car parking spaces (or as alternatively indicated in the order form); “Venue” means the Venue at the address set out in the Order Form; “Venue Owner” means the owner of the Venue set out in the Order Form; “Total Concession Charge” means the amount set out in the Order Form (which is the anticipated final amount payable by the Concessionaire to PS for the Basic Facilities) together with any other sums set out in the Order Form; and “working day” means any day except a Saturday, Sunday or bank holiday.
2. Hire of the Retail Space and Provision of the Basic Facilities 2.1 Subject to Condition 3, PS agrees to hire the Retail Space on behalf of the Venue Owner and on a non exclusive basis to the Concessionaire for the Concession Period for the Business Activity and supply to the Concessionaire the Basic Facilities, subject to the terms of the Agreement. 2.2 The Agreement is subject to the Order Form being signed or agreed online or over email, fax by the Concessionaire and returned and received by PS together with payment of all sums due under Condition 3.1 30 days prior to the start of the concession period, whichever comes earlier. Failure to meet this request may result in PS at its discretion withdrawing the offer contained in such Order Form. PS reserves the right to change its terms or refuse to enter into future agreements. 2.3 PS, as agent on behalf of the Venue Owner, licences and authorises the Concessionaire, its servants and agents and all persons reasonably authorised by the Concessionaire to use the Retail Space during the Concession Period for the purpose of the Concession to access such parts of the Venue as PS may from time to time in its discretion permit, provided that the Concessionaire shall procure that such persons comply with the terms of the Agreement. 2.4 During the Concession Period, the Concessionaire shall: (a) only promote and sell goods and/or services that fall within the agreed Business Activity; (b) ensure that the Retail Space is used in a proper and prudent manner by itself and persons under its immediate supervision; (c) be responsible for the control, planning, organisation (including the allocation of space) and conduct of the Concession; (d) take all reasonable care of the Retail Space, the Basic Facilities and any other property (fair wear and tear excepted); (e) manage the Retail Space at all times with a view to retaining the goodwill of PS, the Venue Owner and the Venue Owner’s customers; (f) ensure that the Retail Space is kept in a clean and orderly condition. If the Concessionaire fails to comply with its obligations contained in this sub-condition PS shall be entitled to perform the same and charge the Concessionaire for any costs incurred; and (g) ensure that the Concession is open for trading and staffed throughout the Venue’s trading hours. 2.5 It may be necessary from time to time for PS to relocate the Retail Space to an alternative location within the Venue. If the Concessionaire does not wish to accept the new location offered, the Concessionaire may terminate this Agreement by giving not less than 21 days’ notice to PS. 2.6 The Concessionaire may only erect or construct stands, structures and other objects required for the Short-Term Concession provided that they have received written approval by PS all such stands, structures and objects shall be erected or constructed and maintained to a reasonable and proper standard having regard to planning, fire and other regulations and shall be removed without damage before the end of the Concession Period. 2.7 The Concessionaire shall ensure that all stands, structures and objects erected or brought into the Retail Space during the Concession Period and all residual rubbish and debris are removed from the Retail Space and the Venue by the end of the Concession Period. If the Concessionaire does not comply with its obligations under this Condition, PS shall be entitled to perform the same and charge the Concessionaire for any costs incurred. 2.8 The Concessionaire acknowledges and understands that the Venue is a site at which the operation of the Concession and other similar concessions is supplemental to the other activities undertaken at the Venue. Accordingly, the Agreement may be terminated without penalty by PS or the Venue Owner at any time and that decision shall be final. If PS or the Venue Owner has to so terminate, PS agrees to use its reasonable endeavours to notify the Concessionaire as soon as practical and to offer a pro rata refund in respect of any unexpired part of the Concession Period. However, no such refund will be issued if the Concessionaire’s occupation is terminated for its breach of the Agreement.
3. Payment 3.3 Cancellation of any booking for Retail Space at a Venue by the Concessionaire will be subject to the following terms: 3.3(a) Cancellations made 21 days or less from the start date of the promotion are non-refundable. 3.3(b) Cancellations made 21 days or more from the start of the promotion will be subject to a refund of 80% of the Total Concession Charge minus a £20 administration charge. 3.3(c) Cancellations must be made known to PS even if the concessionaire is unable to attend the event
3.4 Amendments of any booking for Retail Space at a Venue by the Concessionaire will be subject to the following terms: 3.4(a) Amendments cannot be made 21 days or less from the start date of the promotion. 3.4(b) Amendments made 21 days or more from the start date of the promotion will be subject to an amendment fee of £20, payable on the Concessionaire's next booking. 3.4(c) The concessionaire can only make one amendment per booking 3.4(d) The dates of the new booking must be within 1 working month of the start date of the booking that was amended.3.5 Without prejudice to any other rights of PS, if the Concessionaire fails to pay any amount in cleared funds by its due date, PS may immediately suspend provision of the Basic Facilities, the hire of the Retail Space and/or the performance of its other obligations under the Agreement (without PS or the Venue Owner incurring any liability whatsoever). 3.6 PS reserves the right to change the Retail Space for that of a similar size should the Retail Space be unavailable during the Concession Period for any reason.
4. Operation of the Concession 4.1 The Concessionaire agrees:- (a) not to publicise the Concession by the display of advertising material in contravention of the Venue Owner Town & Country Planning Acts (Control of Advertisement) Regulations 1989 (Flyposting) or permit any other person, firm, company or organisation to do so; (b) to comply with all relevant legislation, regulations and codes of practice relating to the Concession and the sale and promotion of goods and/or services falling within the Business Activity; and (c) that any materials displayed by or on behalf of the Concessionaire within the Venue are done so subject to the sole discretion of PS. 4.2 The Concessionaire is responsible for its personnel complying with: (i) statutory employment legislation; (ii) prevailing Venue rules and regulations (where applicable) in relation to security and safety; and (iii) the Venue Owner’s own in-house rules.
5. Public Order and Safety 5.1The Concessionaire acknowledges its responsibilities under the Health and Safety at Work Act 1974 and agrees:- (a) not to obstruct any exit from or passage or gangway in the Venue or the Retail Space nor to remove or otherwise interfere with any fire fighting apparatus; (b) to notify the Venue and PS immediately on becoming aware of any accident or injury occurring in the Venue or the Retail Space; and (c) not in any circumstances to exceed the number of two attendees operating the Concession at any time or as defined in the order form. 5.2 The Concessionaire shall use its best endeavours to ensure that all arrangements and activities arising at, or in connection with, the Short-Term Concession are consistent with the terms of any licences granted to PS for the Concession and that all such arrangements and activities comply with the health and safety requirements of PS and the Venue Owner. 5.3 The Concessionaire confirms that it will comply with all relevant UK Health & Safety regulations (further information on UK Health & Safety legislation can be found at http://www.hse.gov.uk/guidance/index.htm).
6. Warranties 6.1 PS warrants and undertakes to the Concessionaire that it has the right, power and authority to enter into the Agreement. 6.2The Concessionaire warrants and undertakes to PS that it is has the right, power and authority to enter into the Agreement and shall remain throughout the Concession Period free and entitled to enter into the Agreement. 6.3Subject to Condition 6.1, the Concessionaire acknowledges and accepts that PS gives no warranties of any kind in relation to the Retail Space and the Basic Facilities and that any conditions, warranties, terms and undertakings which would otherwise be implied into the Agreement (whether by statute or otherwise) relating to the Retail Space and the Basic Facilities, or the provision of any other goods or services by PS to the Concessionaire under the terms of the Agreement are hereby excluded to the fullest extent permitted by law.
7. Limitation of Liability 7.1 Nothing in the Agreement shall impose any liability on either PS or the Venue Owner in respect of any action or liability incurred by the Concessionaire in respect of the Concession. 7.2 Neither PS nor the Venue Owner shall be liable to the Concessionaire for any loss of, damage to or costs in respect of: (a) loss of profit, anticipated profits, revenues, anticipated savings; (b) goodwill, enjoyment, business opportunity or publicity; or (c) indirect or consequential loss or damage whether foreseeable, known, foreseen or otherwise. 7.3 PS’s and the Venue Owner’s maximum liability in respect of all actions, proceedings, claims arising out of or in connection with the Agreement or any collateral contract, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall in no circumstances exceed an amount equal to 80% of the Total Concession Charge. 7.4 The Concessionaire warrants that it has taken out all necessary insurances in relation to the Concession, including public liability insurance to a value of no less than £5,000,000 and employer's liability insurance to a value of not less than £10,000,000, with a reputable insurance company and that it shall maintain such insurance for the duration of the Agreement. The Concessionaire shall produce a copy of its Public Liability Insurance policy to PS prior to occupying the Venue or on request. 7.5 The Concessionaire shall indemnify PS and the Venue Owner against all actions, proceedings, demands, claims, damages, fines and reasonable legal fees incurred brought, threatened or awarded against PS or the Venue Owner by any third party (including without limitation any local authority) to the extent that any such action, proceedings, demand, claim, damages, fine or legal fees result (whether directly or indirectly) from any breach by the Concessionaire of any term of the Agreement. 7.6 The Concessionaire shall be responsible for all and any damage caused to the Retail Space or any property there (including any goods, fixtures, fittings, equipment, whether or not owned by PS or the Venue Owner) by the Concessionaire or any of its servants, agents, guests or other persons at the Retail Space with the Concessionaire’s permission. 7.7Neither PS nor the Venue Owner shall be held responsible for any views/opinions of the Concessionaire and/or its staff nor held liable for any unacceptable behaviour exhibited by the Concessionaire and/or its staff which is considered to fall foul of the Public Order Act 1986 and the Race Relations Act 1976. 7.8 Neither PS nor the Venue Owner shall be liable in any way for its failure or inability to make space available as a result of conditions outside its control.
8.Terms and Termination 8.1 Without prejudice to any other remedies available, either party shall be entitled to terminate the Agreement with immediate effect by giving written notice of termination to the other if: (a)the other commits a material breach of the Agreement which, in the case of a breach capable of remedy, shall not have been remedied within 21 days of the receipt by the other of a notice identifying the breach and requiring its remedy or 21 days prior to the start of the concession period. Upon remedy, the party in breach shall provide proof of remedy within 10 days thereof; or (b)if the other party passes a resolution for winding up (other than for the purpose of a solvent amalgamation or reconstruction) or if it shall cease or threaten to cease to carry on its business or substantially the whole of its business or it becomes or is declared insolvent, bankrupt or convenes a meeting of or proposes to make any arrangement or composition with its creditors or if a liquidator, receiver, administrator or trustee or similar officer is appointed over the assets of it or any analogous step is taken in connection with insolvency or dissolution, c) the Company Credit scores falls below 25 8.2 Without prejudice to any other remedies available, PS may terminate the Agreement with immediate effect: (a) if any payment due by the Concessionaire shall be outstanding for more than 5 days; or (b) if it has reasonable grounds for believing that the Concession may endanger public order or the safety of any person, or encourage behaviour which is obscene, immoral, likely to incite racial hatred or damage the reputation of PS or that of the Venue Owner. 8.3 Either PS or the Concessionaire has the right to terminate any agreement by serving a minimum of 21 days notice in writing. 8.4 Any termination of the Agreement shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law. 8.5 On termination or expiry of the Agreement for any reason, the Concessionaire shall not have the right to occupy the Venue for a period of 6 months from the termination date without negotiations and agreement taking place via PS
9.Force Majeure and Frustration of Purpose: In addition to the provisions of Conditions 2.6 and 3.6, PS shall not be liable for any delay or failure in performing any of its obligations hereunder if such delay or failure is caused by circumstances beyond PS’s reasonable control (including, without limitation, any act of God, fire, flood, strike, lock-out or other form of industrial action)
10. Notices: Any notice or other document to be given under the Agreement shall be in writing and delivered or sent by hand-delivery, e-mail or fax to the address or e-mail or fax number of the other party set out in the Order Form and any such notice or other document shall be deemed to have been served and/or delivered (if hand-delivered) at the time of delivery or (if sent by e-mail or fax) upon the expiration of 12 hours after despatch.
11.Dealings in Rights and Obligations: The Concessionaire shall not assign, delegate, sub-contract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this Agreement. PS may assign and/or transfer the Agreement or any of its rights and obligations hereunder to any other party including the Venue Owner.
12. Data Protection: Any data collected must be processed in accordance with the UK Data Protection Act 1998.
13. General: 13.1 Subject to any variation under Condition 13.3, the terms and conditions of the Agreement shall apply as between the parties in respect of the subject matter hereof to the exclusion of all other terms and conditions (including any terms and conditions that the Concessionaire purports to apply). 13.2 The Agreement contains the entire understanding of the parties with respect of the subject matter hereof, supersedes all prior agreements and may not be modified or amended by the parties unless by a written instrument signed by both parties. 13.3 PS shall not be liable to the Concessionaire for loss arising from or in connection with any representations (except any made fraudulently), agreements, statements or undertakings made prior to the date of execution of the Agreement. 13.4 Subject to the Venue Owner being able to enforce the terms of the Agreement and the licence granted under it, for the purposes of the Contracts (Rights of Third Parties) Act 1999 and notwithstanding any other provision of the Agreement, the Agreement is not intended to, and does not, give any person who is not a party to it any right to enforce any of its provisions. 13.5No failure of either party to exercise, and no delay in exercising, any right or remedy in respect of any condition herein contained shall operate as a waiver of such right or remedy. 13.6 PS and the Concessionaire are each independent contractors with respect to each other and nothing in the Agreement shall create any association, partnership or joint venture relationship between them or grant the Concessionaire any proprietary, tenancy or other property interest other than the right to occupy the Venue as a bare licensee. 13.7
The Agreement shall be subject to English Law and the exclusive jurisdiction of the English Courts. ©Promotional Space Limited – Version: Aug 2016