1.1 Unless the context otherwise states or requires: (i) the terms defined in the Order shall have the meaning given to them when used in these Terms and Conditions; and (ii) all other capitalised words used in these Terms and Conditions shall have the meanings set out below:
“Supplier” means Colchester Mercury Theatre Ltd.
“Agreement” means the contract formed between the Customer and the Supplier comprising the Order, the Terms and Conditions, the Schedule and any other documents attached or expressly incorporated by reference;
“Customer” means the person making a purchase from Colchester Mercury Theatre Ltd;
“Intellectual Property Rights” means all patents, trade marks, trade names and domain names, service marks, rights to inventions, copyright and related rights, rights in get-up, rights in goodwill, unfair competition rights, rights in designs (whether held in physical or electronic format or otherwise howsoever), database rights, rights in confidential information (including know how and trade secrets) and any other intellectual property rights (both existing and future), in each case whether registered or unregistered and including all applications (and rights to apply) for, and renewal or extensions of, such rights and similar or equivalent rights or forms of protection in any part of the world;
“Tickets” and “Materials” means the products of the Services due to be delivered to the Customer under this Agreement (if any) and in any ticket purchasing transaction means the tickets purchased, not the performed work.
“Price” means the charge for the supply of Tickets and/or the provision of Services as set out in the Order; and
1.2 In these Terms and Conditions unless the context otherwise requires: (i) words importing the singular include the plural and vice versa; (ii) any words following the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; (iii) reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time; (iv) reference to one gender includes a reference to the other gender; and (v) condition headings do not affect the interpretation of these Terms and Conditions.
1.3 Where there is any inconsistency between the terms set out in the Order Form and the Terms and Conditions, the terms in the Order Form shall to the extent of such inconsistency prevail.
2. COMMENCEMENT AND APPLICATION OF TERMS
2.1 The Order constitutes an offer by the Customer to purchase the Tickets and/or Services subject to these Terms and Conditions. Subject to Clause 2.4 and any change made in accordance with the provisions of Clause 8, these Terms and Conditions are the only terms and conditions upon which the Customer is prepared to deal with the Supplier.
2.2 No terms or conditions endorsed upon, delivered with or contained in the Supplier’s quotation, acknowledgement or acceptance of the supply by the Supplier (or otherwise) shall form part of the Agreement and the Supplier waives any right which it otherwise might have to rely on such terms and conditions.
2.3 An Order shall be accepted when the Supplier either expressly gives notice of acceptance or by implication when the Supplier takes steps to fulfil the Order in whole or in part.
2.4 If the Supplier has submitted a Tender for the supply of Tickets and/or Services, the Supplier acknowledges that the Customer will be entering into the Agreement on the basis of that Tender and warrants that any tender (and any declarations made by the Supplier in connection with it) shall be accurate and complete in all material aspects and not misleading.
2.5 In certain circumstances, the Customer and the Supplier will enter into an Agreement setting out the specifications and prices of Tickets and/or Services that the Customer anticipates that it may wish to order in the future (“a Call-off Agreement”). If this Agreement is a Call-off Agreement, the Customer will be under no obligation to order Tickets and/or Services but in the event that it does so, the Supplier shall accept the individual order(s) (each which shall comprise an “Order” for the purpose of these Terms and Conditions) and the specifications and price as set out in the Call-off Agreement shall apply to those Orders.
2.6 The Supplier shall not, without the prior written consent of the Customer at any time during and for [12 months] after the end of the Term, solicit or entice away from the Customer or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or sub-contractor of the Customer during the Term.
3. QUALITY OF TICKETS
3.1 The Tickets shall:
(a) be of the quantity, quality and description as specified in the Order and the Schedule (if applicable) and comply with the standards presented in any Tender and any pattern, sample or specification given by the Customer;
(b) be free from default, be of satisfactory quality (within the meaning of the Sale of Tickets Act 1979) and fit for their intended purpose;
c) be supplied in accordance with the Environmental and Ethical Policy;
(d) be supplied (if applicable) in accordance with any Special Conditions.
3.2 If any of the Tickets fail to comply with the provisions set out in Clause 3, the Customer shall be entitled to any one or more of the remedies listed in Clause 10.
4.1 The Tickets shall be delivered, carriage paid, to the Delivery Point or such other place of delivery as notified to the Supplier by the Customer in writing prior to delivery of the Tickets. The Supplier shall unload the Tickets at its own risk as directed by the Customer.
4.2 The Tickets shall be delivered on the Delivery Date. If no Delivery Date is specified then delivery shall take place when requested by the Customer or within 14 calendar days from the date of the performance (whichever is later).
4.3 The Supplier shall ensure that:
(a) each package is marked with the Order number
(b) the Tickets are appropriately packaged
4.4 “Delivery” shall take place at the Delivery Point (or such other place of delivery as notified to the Supplier by the Customer) when all of the Tickets have been unloaded safely and correctly from the vehicle of the Supplier or any carrier appointed by the Supplier.
4.5 Notwithstanding the provisions of Clause 4.4, the Customer shall not be deemed to have accepted any of the Tickets until it has had a reasonable time to inspect them following Delivery or, if later, within a reasonable time after any latent defect in the Tickets has become apparent.
4.6 If the Tickets are delivered to the Customer in excess of the quantities set out in the Order, the Customer shall not be bound to pay for the excess and any excess shall be and shall remain at the Supplier’s risk and shall be returnable at the Supplier’s expense.
4.7 If the Tickets are not Delivered in accordance with the provisions of this Clause 4, the Customer shall be entitled to any one or more of the remedies detailed in Clause 10.
4.8 The Customer shall not be obliged to safeguard or return to the Supplier any packaging or packing materials for the Tickets, whether or not any of the Tickets are accepted by the Customer.
4.9 The Supplier shall not deliver the Tickets by instalments except with the prior written consent of the Customer.
5. RISK IN THE TICKETS
5.1 Risk in the Tickets shall remain with the Supplier until they are delivered from the Supplier’s premises or systems, upon which risk shall pass to the Customer.
6. QUALITY OF SERVICES
6.1 The Supplier shall provide the Services:
(a) with all due care, skill, efficiency, economy and diligence and in accordance with good industry practice;
(b) truthfully, accurately, loyally and in good faith towards the Customer, ensuring fitness for any purpose expressly or impliedly made known to the Supplier by the Customer and compliance with the standards presented in the Tender;
c) such that the Materials are of a good quality, conform with the descriptions and specifications set out in this Agreement and any Tender, and are fit for any purpose expressly or impliedly made known to the Supplier by the Customer;
(d) in compliance with the requirements of all applicable legislation, rules and regulations (including, where relevant, any World Trade Organisation agreements and European Community directives governing tendering and contractual procedures, and any derivative and implementing UK laws) and such that any necessary licences and consents required to enable the Supplier to provide the Services are in place before the performance of the Services commences;
(e) in compliance with the Environmental and Equalities Policy;
(f) using suitably skilled and experienced personnel, in sufficient number to ensure that the Supplier’s obligations are fulfilled;
(g) in accordance with the requirements of the Health and Safety at Work etc Act 1974 (“HSWA”) and any other acts, orders, regulations and codes of practice relating to health and
(h) (if applicable) in accordance with any Special Conditions.
6.2 The Supplier shall commence performance of the Services on the Commencement Date and shall complete performance of the Services on the date stated in the Order or continue performance of the Services for the period stated in the Order (as applicable) .
6.3 The Supplier shall keep, for 2 years after this Agreement has been completed or terminated, full and accurate records of all employees involved in this Agreement and all expenses claimed, hours worked and costs incurred by such employees in relation to this Agreement. The Supplier shall allow the Customer or the Customer’s Representative access to the same at all reasonable times.
7. PRICE AND PAYMENT
7.1 The Price shall be inclusive of VAT where applicable and inclusive of all other charges, unless stated otherwise in the Order.
7.2 Where invoicing, the Supplier shall submit an invoice to the Customer’s Representative in respect of and along with each consignment of delivered Tickets and/or within 30 days after satisfactory completion of the Services or as otherwise set out in the Order (as applicable). Provided the Tickets and/or Services have been supplied in accordance with the provisions of this Agreement and subject to Clause 7.5, the Customer shall pay the Price within 28 days of the date of receipt of a valid invoice, and before the relevant performance.
7.3 In the event that the Customer disputes an invoice, then the date for payment of the invoice shall be calculated from the date on which the dispute is resolved.
7.4 If any sum under this Agreement is not paid by the final date for payment then, without prejudice to the parties’ other rights under this Agreement, that sum shall bear interest from the due date until payment is made in full at 3% per annum above the base rate of Barclay’s Bank from time to time.
7.5 The Supplier can exchange your tickets up to five days prior to the date on your ticket, or alternatively give you credit to use on another show of your choosing. Tickets must be returned to the Ticket Sales desk. Ticket exchanges incur a standard £1 fee, and all credits expire two years after issue.
7.6 Tickets can be reserved by the Customer without payment for five working days.
7.7 The Supplier does not issue refunds.
8.1 No change to this Agreement or the Tickets and/or Services supplied under it shall be valid unless made in writing and signed by the parties.
8.2 The Supplier shall not unreasonably withhold or delay agreement of any change required by the Customer, or the implementation thereof; nor shall the Supplier impose unreasonable conditions (having regard to the other terms of this Agreement) in implementing the change. All revision to the Price for any Tickets and/or Services to be provided under this Agreement as a result of such a request shall (to the extent possible) be calculated using the same or equivalent method to that which was used to calculate the Price. No variation to the Price shall apply without the prior written approval of the Customer.
9. INTELLECTUAL PROPERTY
9.1 The Supplier warrants that the supply by it of the Tickets and/or the provision of the Services (including all Materials) will not infringe any Intellectual Property Rights of any person, nor be libellous or in breach of a person’s right to privacy.
9.2 The provisions of this Clause 9 shall survive termination of this Agreement.
10.1 Without prejudice to any other right or remedy which the Customer may have, if any of the Tickets and/or Services are not supplied in accordance with, or the Supplier fails to comply with, any of the terms of this Agreement, the Customer shall be entitled to any one or more of the following remedies (as applicable) at its discretion, whether or not any part of the Tickets have been accepted by the Customer or any of the Services have been provided by the Supplier:
(a) to rescind this Agreement (namely, treat the Agreement as if it is not and has never been in force) and a full refund of the Price shall be credited to the customer’s account within thirty days by the Supplier;
(b) to give the Supplier the opportunity at the Supplier’s expense either to remedy any defect in the Tickets and/or Services or to supply replacement Tickets and/or Services and carry out any other necessary work to ensure that the terms of this Agreement are fulfilled;
c) the Supplier, entirely at its discretion, can exchange tickets or give credit to use on another show of the Customer’s choosing. Conditions may be attached to this exchange, and the exchange will incur a standard £1 fee.
11.1 Without prejudice to the generality of Clause 12.2, either party shall have the right at any time by giving notice in writing to the other to terminate the Agreement (in whole or in part) immediately if:
(a) the other party commits a material or persistent breach of this Agreement which in the case of a breach capable of remedy shall not have been remedied within 30 days of receipt of a notice from the complaining party identifying the breach and requiring its remedy; or
(b) an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to that party; or
c) an order is made for the appointment of an administrator to manage the affairs, business and/or property of the other party, or documents are filed for the appointment of an administrator for such purposes, or notice of intention to appoint an administrator for such purposes is given; or
(d) a receiver is appointed over any of the other party’s assets or undertaking, or if circumstances arise which entitle a court or a creditor to appoint a receiver or manager in respect of any part of that party’s undertaking or assets; or
(e) the other party makes any arrangement or composition with its creditors, or makes an application to a court for the protection of its creditors in any way, or becomes bankrupt, or if that party ceases to trade or threatens to cease to trade; or
(f) the other party takes or suffers any similar or analogous action to those referred to in sub-clauses (b) to (e) (inclusive) in any jurisdiction; or
(g) there is a change of control of the other party. “Control” for these purposes shall be as defined in section 1124 of the Corporation Tax Act 2010.
11.2 Termination of this Agreement, for whatever reason, shall not affect or prejudice the accrued rights of the parties as at termination or the continuation of any provisions impliedly or expressly stated to survive termination.
11.3 On termination or expiry of this Agreement, for whatever reason, the Supplier shall as soon as is reasonably practicable, if and as the Customer elects:
(a) destroy, delete or deliver to the Customer all copies of all information, materials and data provided by the Customer to the Supplier for the purposes of this Agreement;
(b) destroy, delete or deliver to the Customer all Materials existing at the date of termination (whether or not completed). Title to such Materials shall (where and to the extent it has not previously transferred) automatically pass to the Customer upon termination of this Agreement. The Customer shall be entitled to enter the premises of the Supplier to take possession of such Materials if the Customer deems it necessary; and
c) cease all use of the Intellectual Property Rights of the Customer.
12.1 Everyone entering a Mercury Theatre auditorium must be issued with a ticket, regardless of age.
12.2 Relationship between the Parties. Nothing in this Agreement shall be construed as creating a partnership, a contract of employment or a relationship of principal and agent between the Customer and the Supplier.
12.3 Data Protection. The Supplier shall (and shall ensure that all of its employees, agents and sub-contractors shall) comply with the requirements of the Data Protection Act 2018 (and related legislation) arising in respect of data processed in relation to performing the Services and/or supplying the Tickets or otherwise in connection with this Agreement.
12.4 Non-Discrimination. The Supplier shall not discriminate either directly or indirectly on such grounds as race, colour, ethnic or national origin, disability, sex or sexual orientation, religion or belief or age and without prejudice to the generality of the foregoing the Supplier shall not discriminate within the meaning and scope of the Sex Discrimination Act 1975, the Race Relations Act 1976, the Disability Discrimination Act 1995 and 2005, the Equality Act 2010, the Human Rights Act 1998 or other relevant or equivalent legislation, or any statutory modification or re-enactment of the same.
12.5 Anti-Bribery. The Supplier shall not, in the performance of its obligations under this Agreement, act in a manner that constitutes a breach of applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption including the Bribery Act 2010. The Supplier shall comply with any policy or procedure governing anti-bribery imposed by the Customer and warrants that in providing the Tickets and/or Services it will not induce or improperly reward any third party, including any public official, to act improperly. For the purposes of this clause, to act improperly shall be interpreted in accordance with the Bribery Act 2010.
12.6 Notices. Any notice required or permitted to be given by either party to the other under this Agreement shall be in writing addressed to the other party at the address stated on the Order or such other address as may be notified in accordance with this Clause.
12.7 Assignment. The Supplier shall not, without the prior written consent of the Customer, assign, sub-license, sub-contract or otherwise transfer to any third party any of its rights or obligations under this Agreement. The Customer shall be entitled to assign its rights and/or obligations under this Agreement.
12.8 Third party rights. The parties agree no term of the Agreement will be enforceable by any third party by virtue of the Contracts (Rights of Third Parties) Act 1999.
12.9 Severance. In the event that any provision (including any distinct sub-clause) of this Agreement is held to be illegal, invalid, void or unenforceable, it shall be severed from the remaining provisions of this Agreement, which shall continue in full force and effect.
12.10 Waiver. Failure or neglect by either party to enforce any provision of this Agreement shall not be construed nor shall be deemed to be a waiver of that party’s rights under this Agreement and shall not prejudice that party’s rights to take subsequent action.
12.11 Entire agreement. This Agreement contains the entire agreement between the parties in relation to the purchase by the Customer of the Tickets and/or Services. Subject only to Clause 2.4, it supersedes any prior agreements, representations, arrangements or undertakings in relation to such subject matter, provided that nothing in this clause shall exclude or limit liability for fraudulent misrepresentation.
12.12 Dispute Resolution. If a dispute arises out of or in connection with this Agreement the parties will, following a written request from one to the other, attempt in good faith to resolve the dispute: (a) through discussions between the Customer’s Representative and the Supplier’s Authorised Representative failing which the Customer may avail themselves of statutory routes of recourse.
12.13 Law. The Agreement shall be governed by and interpreted in accordance with English law and the parties submit to the exclusive jurisdiction of the English courts.
12.14 Counterparts. This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute and original of this Agreement, but all the counterparts shall together constitute the same agreement. No counterpart shall be effective until each party has executed at least one counterpart.
13. SPECIAL CONDITIONS
13.1 Refunds and exchanges for tickets sold on behalf of Colchester Borough Council will be entirely at the discretion of Colchester Borough Council and the Mercury Theatre Colchester accept no liability for refunds in the event of a cancellation or other failure to deliver.
13.2 Refunds and exchanges for tickets sold on behalf of other third parties will be entirely at the discretion of the third party and the Mercury Theatre Colchester accept no liability for refunds in the event of a cancellation or other failure to deliver.