The definitions and rules of interpretation in this condition apply in these terms and conditions.
Buyer means any person who has placed an Offer via the Website.
Charges means the Supplier’s charges for provision of the Services, as set out in the Order Form, or, where the Customer has purchased the Services by completing a form on the Website.
Contract means any contract formed in accordance with condition 2.2 between the Customer and the Supplier for supply of the Services, incorporating these Conditions.
Customer means the person, firm or company who purchases Services from the Supplier.
Deliverables means the goods or services offered for sale by the Customer in a Listing.
Intellectual Property Rights means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Listing means a listing on the Website which details the Deliverables available for purchase by Buyers.
Offer means an offer made by a Buyer to purchase Deliverables. An Offer is made by the Buyer: (a) completing all the details specified on the Website and required by the Customer for that Listing; and (b) making payment to the Supplier of the non-refundable booking fee in the amount and currency specified for that Offer on the Website.
Order Form means the order form for supply of the Services or the Service Supply Contract, completed by the Supplier for the Customer and provided to the Customer for approval.
Payment Terms means the payment terms specified in the Order Form or on the Website, as appropriate according to the means by which the Customer purchased the Services.
Services means the services to be provided by the Supplier under the Contract, as set out in the Order Form or the relevant form completed by the Customer on the Website when ordering the services, as appropriate according to the method by which the services are purchased, together with any other services which the Supplier provides, or agrees to provide, to the Customer.
Supplier means Clearbookings Limited, incorporated and registered in the Republic of Ireland with company number 533011 whose registered office is at Portershed, Eyre Square, Galway, H91 HY51.
Website means the Supplier’s website at www.clearbookings.com (or any alternative website operated by the Supplier from time to time and agreed by the parties).
2.0 BASIS OF CONTRACT
2.1 These Conditions shall: (a) apply to and be incorporated into the Contract; and (b) prevail over any inconsistent terms and conditions contained, or referred to, in the Customer’s purchase order, confirmation of order, acceptance of a quotation, or specification or other document supplied by the Customer, or implied by trade custom, practice or course of dealing.
2.2 The Customer’s purchase order, or the Customer’s acceptance of a quotation for Services by the Supplier, constitutes an offer by the Customer to purchase the Services on these Conditions. No offer placed by the Customer shall be accepted by the Supplier other than: (a) by a written acknowledgement issued and executed by the Supplier; or (b) if earlier, by the Supplier starting to provide the Services, or (c) if earlier, the Customer signs and returns the Order Form, when a contract for the supply and purchase of the Services on these Conditions will be established. The Customer’s standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other document shall not govern the Contract.
2.3 Quotations are given by the Supplier on the basis that no contract shall come into existence except in accordance with condition 2.2. Any quotation given is valid for a period of 30 days from its date, provided the Supplier has not previously withdrawn it.
3.0 COMMENCEMENT AND DURATION
The Services supplied under the Contract shall commence on the date specified by the Supplier (either on the Website (if the Customer has purchased the Services by completing a form on the Website) or in the Order Form) and continue thereafter, subject to any earlier termination in accordance with these Conditions, for the period specified by the Supplier on the Website or in its Order Form, as appropriate.
4.0 THE SERVICES
4.1 The Supplier shall supply and the Customer shall take and pay for the Services subject to the terms of the Contract.
4.2 The Supplier shall be entitled, on prior notice to the Customer, to make changes to the Services, provided such changes do not have a material adverse effect on the Customer’s business operations.
4.3 The Supplier shall have no obligation to provide the Services if, and to the extent that, the Customer is in breach of its obligations under this Contract.
4.4 The Supplier shall use all reasonable endeavours to meet any agreed performance SLAs, if applicable and specified in the Contract, but any such service levels shall be estimates only.
5.0 AVAILABILITY OF THE SERVICES
The Supplier will endeavour to have the Website available at all times. The Supplier is dependent on external suppliers for web hosting incl. hardware supply and support and remote back-up in providing services to customers and customers recognize that The Supplier can only rely on this service pursuant to their individual terms and conditions and service level agreements. In the event that The Supplier experiences difficulties with its suppliers it will make every effort towards rectifying any such problems within the shortest possible time frame.
6.0 BOOKING SERVICES
6.1 The Supplier will, promptly following receipt, communicate all Offers to the Customer.
6.2 Once the Customer notifies the Supplier that the Offer is accepted, the Customer acknowledges that a binding contract is established between the Buyer and the Customer upon the terms set out in the Listing.
6.3 The Customer acknowledges that, in providing the Booking Services: (a) the Supplier acts solely as an agent or intermediary for the Customer; (b) the Supplier is not party to any contract formed between a Buyer and the Customer; and (c) the Supplier accepts no liability for any such contract formed.
6.4 The Supplier is not under any obligation to accept a Listing request by a Customer. The Supplier has absolute discretion to accept or reject listings at any time or for any reason.
6.5 The Supplier provides an agency service whereby Buyers with specific needs are introduced to the Supplier and make Offers. The Customer expressly acknowledges and agrees that the Supplier has not investigated, and does not warrant the financial standing or creditworthiness of any Buyer (although the Supplier agrees, notwithstanding the foregoing, not to actively introduce Buyers whom the Supplier knows will be unable to pay for Offers).
6.6 The Supplier does not warrant or otherwise guarantee a minimum amount of Offers for any Listing.
6.7 The Customer warrants to the Supplier that: (a) it is entitled to provide the Deliverables and advertise the Listing specified on the Website, and that in so doing, it does not infringe any third party rights; (b) the Listing provides an accurate and complete description of the Deliverables and sets out all the terms and conditions applicable to purchase of the Deliverables; (c) it will not, once an Offer is accepted, agree to discount the price charged to the Buyer for the Deliverables described in that Listing below the price specified in the Listing; (d) it has good, unencumbered title to any goods specified in a Listing; (e) it will supply the Deliverables purchased by a Buyer to that Buyer in accordance with the terms of the Listing and this Contract. In the event that the Customer breaches any of its obligations under this condition then the Supplier may, without prejudice to any other rights or remedies to which it may be entitled, remove the Customer’s Listings from the Website and, at the Customer’s cost, offer Buyers a full refund of the booking fees paid by the Buyers in connection with any Offers affected by such breach.
6.8 The Customer hereby acknowledges and agrees that, to the extent that there is any conflict between a Customer’s terms and conditions of trade and this condition 6, the Customer’s terms and conditions of trade shall have no effect.
6.9 In the event that the Supplier receives a complaint from a Buyer, or any other issue arises with respect to Deliverables supplied to a Buyer (including, without limitation, as to their quality), the Customer shall be solely liable for dealing with such issues, and shall correspond directly with the Buyer.
6.10 The Customer shall indemnify the Supplier in full against any loss, damages, costs, expenses and liabilities (including all legal costs and expenses) incurred by the Supplier as a result of: (a) the Customer breaching its obligations under this condition 6; (b) incorrect, inaccurate or misleading information and/or Listings provided by the Customer; and (c) the Customer negligently transmitting defective and/or viral data.
It is the responsibility of the Customer to communicate its refund policy to Buyers and to issue refunds to Buyers via the Site or otherwise. If a Buyer desires to request a refund, Buyer must request the refund from the Customer. All communications or disputes regarding refunds are between the Customer and Buyer and ClearBookings will not be responsible or liable in any way for refunds, errors in issuing refunds, or lack of refunds in connection with the Services. All communications and disputes regarding refunds are between the Customer and Buyer. If you are a Buyer and you wish to request a refund in connection with an event utilising ClearBookings, you should contact the applicable Customer directly.
In the event that a Listing is cancelled by the Customer for any reason, and the Customer has purchased Booking Services from the Supplier, the Supplier (subject to condition 8.1) shall refund the total amount paid by any Buyer for the Deliverables specified in that Listing, including any booking or other fees.
8.1 In consideration for the Services, the Customer shall pay the Charges in accordance with the Payment Terms. In the event that the Customer has purchased Booking Services and the Customer cancels a Listing after accepting (via the Booking Service provided by the Supplier) Offers, the Customer expressly acknowledges that the Supplier shall refund all booking and other fees paid by Buyers for that Listing, and the Customer shall be liable to pay to the Supplier, upon demand, the full amount of any and all refunds of booking fees paid by Buyers to the Supplier for providing the Booking Services (which booking fees are otherwise non-refundable).
8.2 If the Customer fails to pay any amount due by it under the Contract, the Supplier shall be entitled (without prejudice to any other right to which it may be entitled): (a) but not obliged, to charge the Customer interest on the overdue amount, payable by the Customer forthwith on demand, from the due date up to the date of actual payment, after as well as before judgment, at the rate of 3% above the base rate for the time being of Bank of Ireland Limited per annum. Such interest shall accrue on a daily basis and be compounded quarterly; and/or (b) to suspend provision of the Services until payment of all overdue amounts has been received by it. Time for payment shall be of the essence of the Contract.
8.3 All amounts payable under this Contract shall be exclusive of value added tax or other sales or supply taxes (if any) which shall be paid at the rate and in the manner for the time being prescribed by law.
8.4 The Supplier shall be entitled to increase the Charges (where the Supplier determines it necessary or appropriate) by providing advance notice thereof to the Customer.
8.5 Transactions accepted through the website using International Debit or Credit cards are subject to an additional 1% surcharge payable by the Customer who obtained the Services.
9.0 THE SUPPLIER’S WARRANTIES AND LIMITS OF LIABILITY
9.1 The Supplier represents and warrants to the Customer that the Services will be performed with all reasonable skill and care.
9.2 If, during the term of the Contract, the Supplier receives written notice from the Customer of any breach by the Supplier of condition 9.2, the Supplier shall, at its own option and expense, remedy that breach within a reasonable period following receipt of such notice, or, if such breach cannot be remedied, terminate this Contract immediately on written notice to the Customer. The Customer shall provide all information reasonably necessary to enable the Supplier to comply with its obligations under this condition 9.1. This condition sets out the Customer’s sole remedy and the Supplier’s entire liability for any breach of condition 9.1.
9.3 All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into the Contract or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including, without limitation, the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose and the use of reasonable skill and care.
9.4 Except as expressly stated in condition 9.5: (a) the Supplier shall have no liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories; (i) special damage, even though the Supplier was aware of the circumstances in which such special damage could arise; (ii) loss of profits; (iii) loss of anticipated savings; (iv) loss of business opportunity; (v) loss of goodwill; (vi) loss of, or damage to, data; (b) the Customer agrees that, in entering into the Contract, either it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in the Contract or (if it did rely on any representations, whether written or oral, not expressly set out in the Contract) that it shall have no remedy in respect of such representations and (in either case) the Supplier shall have no liability otherwise than pursuant to the express terms of the Contract; and (c) the total liability of the Supplier, whether in contract, tort (including negligence) or otherwise and whether in connection with the Contract or any collateral contract, shall in no circumstances exceed a sum equal to the amount payable to the Supplier under the Contract under which the liability arose.
9.5 The exclusions and limitations in conditions 9.3 and 9.4 shall apply to the fullest extent permissible at law but the Supplier does not exclude liability for: (a) death or personal injury caused by the negligence of the Supplier, its officers, employees, contractors or agents; or (b) fraud or fraudulent misrepresentation; or (c) any other liability which cannot be excluded by law.
9.6 The Supplier shall not be liable for damages occurring either directly or indirectly as a result of any party’s accessing the Website that could have been prevented through the use of reasonable security measures.
10.0 INTELLECTUAL PROPERTY RIGHTS
10.1 The Customer warrants that it owns all Intellectual Property Rights in the logos, trademarks, designs and other information provided to the Supplier in connection with the Supplier’s provision of the Services.
10.2 The Customer accepts full legal responsibility in respect of any Listing or advertising approved by it for publication on the Website and will indemnify the Supplier in respect of any loss, claims, expenses, damages or other liability incurred by the Supplier as a result of use or publication of such Listing or advertisement (including, without limitation, any claim by a third party that its Intellectual Property Rights have been infringed).
10.3 Subject to the foregoing, the Supplier owns or is validly licensed to use all Intellectual Property Rights in the Services and the Website, and the Customer has no right to use such Intellectual Property Rights save as provided in these Conditions.
11.0 THE CUSTOMER’S RESPONSIBILITIES
11.1 The Customer shall co-operate with the Supplier in performing the Services and provide any assistance or information as may reasonably be required by the Supplier.
11.2 The Customer shall comply with all terms and conditions specified in the Supplier’s Terms of Website Use (available at www.clearbookings.com. Where the Terms of Website Use and/or guidance conflicts with the terms of this Contract, this Contract shall prevail.
11.3 The Customer shall indemnify the Supplier against any losses, damages, costs (including legal fees) and expenses incurred by or awarded against the Supplier as a result of the Customer’s breach of this Contract or any negligent or wrongful act of the Customer, its officers, employees, contractors or agents.
11.4 If the Supplier’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, sub-contractors, consultants or employees, the Supplier shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay.
The Customer shall not, for the duration of the Contract, and for a period of six months following termination, directly or indirectly induce or attempt to induce any employee of the Supplier who has been engaged in the provision, receipt, review or management of the Services or otherwise in connection with the Contract to leave the employment of the Supplier.
13.0 FORCE MAJEURE
13.1 Subject to due compliance with condition 13.2, neither party shall be liable to the other for any delay or non-performance of its obligations under the Contract arising from any cause beyond its reasonable control including, without limitation, act of God, governmental act, war, fire, flood, explosion or civil commotion.
13.2 In the event of either party being so delayed or prevented from performing its obligations, such party shall: (a) give notice in writing of such delay or prevention to the other party as soon as reasonably possible, stating the commencement date and extent of such delay or prevention, the cause thereof and its estimated duration; (b) use all reasonable endeavours to mitigate the effects of such delay or prevention on the performance of its obligations under the Contract; and (c) resume performance of its obligations as soon as reasonably possible after the removal of the cause of the delay or prevention.
13.3 In the event that such delay or prevention continues for more than eight weeks, the party whose performance is not delayed or prevented may terminate the Contract on 30 days’ written notice to the other party, in which case the provisions of condition 14 shall apply.
14.1 Each party shall have the right, without prejudice to its other rights or remedies, to terminate the Contract immediately by notice to the other if the other: (a) is in material or persistent breach of any of its obligations under the Contract and either that breach is incapable of remedy, or that other party has failed to remedy that breach within 30 days after receiving written notice requiring it to do so; or (b) is unable to pay its debts, or becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction.
14.2 The Supplier shall have the right, without prejudice to its other rights or remedies, to terminate the Contract immediately by notice to the Customer if the nature of the Services and/or any work requested by the Customer could, in the Supplier’s reasonable opinion, potentially compromise the Supplier’s position, integrity or reputation.
15.0 CONSEQUENCES OF TERMINATION
15.1 On expiry or termination of the Contract: (a) the Customer’s right to receive the Services shall cease automatically; (b) each party shall immediately return to the other all property and materials containing Confidential Information (as defined in condition 17) belonging to the other; and (c) all amounts due from the Customer under the Contract shall be paid immediately by the Customer.
15.2 Any termination of the Contract (howsoever occasioned) shall not affect any accrued rights or liabilities of either party, nor shall it affect the coming into force or the continuance in force of any provision of the Contract which is expressly, or by implication, intended to come into force or continue in force on or after that termination.
16.0 ASSIGNMENT AND SUB-CONTRACTING
16.1 Subject to the remaining terms of this condition 16, neither party may assign, sub-license, sub-contract, mortgage or otherwise transfer any of its rights or obligations under the Contract without the prior written consent of the other, such consent not to be unreasonably withheld or delayed.
16.2 The Supplier may sub-contract any of its obligations under the Contract on notice to the Customer provided that it shall remain liable to the Customer for the performance of all such obligations.
17.0 CONFIDENTIALITY AND PUBLICITY
17.1 Each party shall, during the term of the Contract and thereafter, keep confidential, and shall not use for its own purposes, nor without the prior written consent of the other disclose to any third party, any and all information of a confidential nature (including trade secrets and information of commercial value) that may become known to such party from the other party, and which relates to the other party (“Confidential Information”), unless such information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of the Contract, or subsequently comes lawfully into the possession of such party from a third party.
17.2 The terms of the Contract may not be disclosed by the Customer (other than to its legal advisers) without the prior written consent of the Supplier.
17.3 The provisions of this condition 17 shall remain in full force and effect notwithstanding any termination of the Contract.
If any provision of the Contract is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions will not be prejudiced.
Any amendment, waiver or variation of the Contract shall not be binding on the parties unless set out in writing, expressed to amend the Contract and signed by or on behalf of each of the parties.
20.0 THIRD PARTY RIGHTS
No term of the Contract is intended to confer a benefit upon or to be enforceable by any person who is not a party to the Contract.
Any notice required to be given pursuant to the Contract shall be in writing, and shall be sent to the other party marked for the attention of the person at the address set out for such party in the Contract. Notices may be sent by first-class mail or fax, provided that faxes are confirmed within 24 hours by first-class mailed confirmation of a copy. Correctly addressed notices sent by first-class mail shall be deemed to have been delivered 72 hours after posting and correctly directed faxes shall be deemed to have been received instantaneously on transmission, provided that they are confirmed as set out in the Contract.
22.0 GOVERNING LAW AND JURISDICTION
The Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with Irish law and submitted to the exclusive jurisdiction of the Irish courts.