1 DEFINITIONS AND INTERPRETATION
1.1 In these Conditions, unless the context otherwise requires:
“Booking Confirmation” means the document prepared by ESEM and signed by both parties which specifies the particulars of the Event;
“Budget” means the document agreed between the parties which specifies the Fees (as amended from time to time by agreement between the parties);
“Business Day means any day other than a Saturday, Sunday or public holiday in England;
“Client” means the person or persons identified as the client in the Booking Confirmation;
“Conditions” means these written conditions;
“Confidential Information” means as defined in Clause 14.1;
“Delegates” means the delegates participating in the Event as notified by the Client to ESEM pursuant to Clause 7.2;
“Deliverables” means any equipment, document or other deliverable item that ESEM may agree to supply to the Client as part of the Event;
“Effective Date” means either the date of signature by the Client of the Booking Confirmation or the date of acceptance by the Client of the Agreement under Clause 2;
“ESEM ” means Euro Sport & Event Management SLU whose principal place of work is: Avda. Andalucia 5, 29679 Benahavís, Málaga, Spain (NIF B93010171);
“Event” means the event to be organised by ESEM (including the delivery of any Deliverables) pursuant to Clause 2, as more fully described in the Booking Confirmation, Budget and the Itinerary;
“Fees” means amount charged by ESEM for organising the Event as described in Clause 8 and set out in the Budget, including amounts payable to any third party;
“Force Majeure Event” means as defined in Clause 22;
“Itinerary” means the document providing a detailed description of the Event including but not limited to transport, accommodation, meals and activities;
1.2 Clause headings are purely for ease of reference and do not form part of or affect the interpretation of these Conditions.
1.3 References in these Conditions to:
1.3.1 the parties include references to their respective successors in title, permitted assigns and novatees;
1.3.2 any statute or statutory provision include references to that statute or statutory provision as from time to time amended, extended or re-enacted and to any rules, orders, regulations and delegated legislation made thereunder; and
1.3.3 “person(s)” shall include any individual, firm, company, association, corporation or other organisation or entity; and
1.4 Where the context so admits or requires words in these Conditions denoting the singular include the plural and vice versa and words denoting any gender include all genders.
These Conditions together with the Budget, the Itinerary and the Booking Confirmation constitute a valid agreement between the parties (“Agreement”) which may be formed either by the parties signing the Booking Confirmation or by the Client indicating its acceptance of these Conditions and agreement to the Budget, the Itinerary and any additional terms and conditions set out in the Booking Confirmation in writing. In the event of any conflict between these Conditions on the one hand and one or more of the Budget, the Itinerary or the Booking Confirmation on the other, the provisions of these Conditions shall prevail, unless expressly stated to the contrary.
3.1 Subject to the provisions of these Conditions, ESEM shall organise the Event in accordance with the Booking Confirmation and the Itinerary including, where applicable, all appropriate hotel and ground services, programme creation, management and implementation, airline ticketing as appropriate, tax and itinerary.
3.2 Any bookings made by ESEM on behalf of the Client in relation to the Event (including travel, accommodation, entertainment and food and drink) are subject to the standard terms and conditions of ESEM’s third party suppliers (copies of which are available on request).
3.3 ESEM shall apply such time, attention, resources, personnel and skill as may be necessary or appropriate for the performance of its obligations hereunder.
4 SPECIAL REQUESTS
The Client shall inform ESEM in writing of any special requests (including but not limited to special facilities for disabled people, dietary requirements, and the like) which the Client or any of the Delegates may have. ESEM will use all reasonable endeavours to ensure that the special request is met but ESEM shall not be liable for any failure of itself, its representatives, agents or independent third party contractors to meet any special request.
5 PASSPORT, VISA AND HEALTH FORMALITIES
5.1 In relation to overseas events, the Client shall ensure that all Delegates hold a valid passport (not close to expiry), obtain the necessary visas well in advance of the intended journey and comply with the relevant country’s health formalities before entry.
5.2 ESEM accepts no responsibility for any Delegate not holding a valid passport or visa, or failing to meet the criteria for entry to the relevant country.
6 HIGH RISK ACTIVITY
6.1 In the event of any high risk activity ESEM will use all reasonable endeavours to minimise the risk for Delegates. The Client acknowledges and accepts any inherent risk and subject to clause 16.2 accepts that ESEM shall not be liable or responsible in the event of any unforeseen, unfortunate circumstances.
6.2 The Client shall, and shall ensure that Delegates shall, respect all preventative and safeguarding measures notified to them by ESEM or any of ESEM’s representatives, agents or sub-contractors. The Client shall ensure that Delegates attend any necessary training courses, wear protective clothing and gear as advised and are in a fit condition for the relevant activity.
6.3 ESEM reserves the right to prevent participation of any Delegate in high risk activity if ESEM or any of its agents, representatives or sub-contractors believes that a Delegate may cause danger or distress to himself or others, the Client agrees to accept any such decision made, and will assist ESEM in implementing such a decision.
6.4 ESEM reserves the right, at any time, to request a Delegate to sign any document confirming that they are aware of any potential risk and that they accept that ESEM has taken all reasonable precautions in order to minimise the risk and that ESEM shall not be liable or responsible for any loss, damage or other expenses arising from the activity.
7 CLIENT’S OBLIGATIONS
7.1 The Client shall be responsible for specifying fully and clearly its requirements in relation to the Event. The Client agrees to provide to ESEM promptly upon request all information, data, reports and other materials that ESEM may reasonably require from time to time to facilitate the organisation of the Event. The Client warrants that all such information, representations, data, reports and other materials is/are accurate and complete and that the Client is entitled to provide the same to ESEM for ESEM’s use without recourse to any third party.
7.2 The Client shall deliver to ESEM complete Delegate/rooming lists and scheduled transportation requirements, if applicable, at the time specified in the Booking Confirmation.
7.3 If the performance of any services hereunder requires the use, storage or transportation of any equipment or valuables belonging to the Client and/or any Delegate:
7.3.1 the Client shall ensure that ESEM’s personnel are given such access to the equipment as is reasonably necessary to facilitate the performance of the relevant services;
7.3.2 such equipment and/or valuables shall remain at the Client’s and/or the Delegate’s risk and ESEM shall not assume any responsibility or liability for the safety or security of the same;
7.3.3 the Client recognises that any such equipment provided to, or stored by, any third party will be subject to that third party’s terms and conditions; and
7.3.4 the Client shall take all reasonable precautions to safeguard the health and safety of ESEM’s personnel whilst working with, transporting or storing such equipment and shall ensure that such equipment at all times complies with all relevant laws, regulations and codes of practice.
7.4 The Client shall be responsible for and shall ensure that each and every Delegate has full and adequate insurance including cancellation, medical, extreme sports (if applicable), third party cover and general travel insurance and any other form of insurance that may be necessary for the Delegate. Alternatively, the Client shall have in place a full and adequate group insurance policy that covers each and every Delegate for the whole trip including the Event and activities they undertake. The policy must cover cancellation, medical, extreme sports (if applicable), third party cover and general travel insurance as well as any other form of insurance that may be necessary for the individual Delegate within the group.
8 FEES AND EXPENSES
8.1 In consideration of the organisation of the Event by ESEM hereunder, the Client shall pay to ESEM the Fees specified in the Budget and/or the Booking Confirmation. The Client acknowledges that the amounts set out therein in respect of third party expenses are estimates only. However, unless otherwise agreed with the Client, ESEM will not charge the Client in excess of the Fee should any expenses exceed the estimates set out in the Budget. ESEM shall be entitled to retain the benefit of any bulk, volume or similar discounts received by it in respect of any such expenses.
8.2 ESEM shall invoice the Client at the times and dates set out in the Booking Confirmation in respect of the Fees.
8.3 The Client shall pay ESEM’s invoices by the dates specified in the Booking Confirmation into a bank account nominated by ESEM, as identified in the Booking Confirmation and any Invoice. All invoices and all payments hereunder shall be in the currency contained within the Booking Confirmation.
8.4 The Fees are payable in full without deduction, withholding or set-off for any reason whatsoever and are inclusive of Value Added Tax at the rate specified on the date of the Booking Confirmation and any other duty or tax, which shall (if and to the extent applicable) be payable by the Client. If Value Added Tax or any other duty or tax increases, then the Fees will increase accordingly.
8.5 If the Client is overdue with any payment hereunder, then without prejudice to ESEM’s other rights or remedies:
8.5.1 the Client shall be liable to pay interest on any overdue amount in accordance with the Act 3/2004; and/or
8.5.2 ESEM shall have the right to suspend performance of its obligations hereunder until ESEM has received payment of the overdue amount(s) together with any accrued interest; and/or
8.5.3 if payment is not made within 14 days of the due date, ESEM shall have the right to terminate any Agreement immediately upon written notice to the Client and charge the Customer the Fees.
8.6 ESEM reserves the right to increase the Fees if the cost to ESEM of performing its obligations hereunder increases as a result of:
8.6.1 any change to the Event or number of attendees for the Event, in each case, from as set out in the Booking Confirmation;
8.6.2 any change to the law or any other reason beyond ESEM’s reasonable control;
8.6.3 any breach of these Conditions by the Client;
8.6.4 any breach of the terms and conditions of a third party supplier of ESEM by any Delegate or the Client;
8.6.5 the supply of incorrect, incomplete or misleading information by the Client; or
8.6.6 any other request or amendment by the Client which causes ESEM to incur any additional time or expense in relation to the Event.
9.1 ESEM has insurance cover in place in respect of its activities and the levels of cover it has are available on request. If the Client would prefer ESEM to have a higher level of cover in place in respect of any Event, ESEM is willing to organise this at the Client’s cost.
9.2 It is a condition of booking that all Delegates of a party must have full insurance in accordance with clause 7.4.
10 PROJECT MANAGEMENT
10.1 The parties shall each appoint a project manager who will be responsible for regular day to day liaison between the parties and for supervising and managing the performance of their respective obligations under the Agreement.The Client recognises that the ESEM Project Manager may not be with the Delegates at all times unless specifically requested, but will provide details of availability and contact details.
10.2 The parties’ initial project managers are named in the Booking Confirmation. Any replacement of either party’s project manager shall be subject to that party giving prior written notice to the other party. ESEM reserves the right to use persons other than its employees to perform such obligations.
10.3 The parties’ respective project managers shall use all reasonable endeavours to resolve issues arising in relation to the Event but shall refer all problems the resolution of which is outside their ordinary authority to appropriate members of the parties’ respective senior management.
11.1 ESEM shall use all reasonable endeavours to deliver Deliverables by any agreed date(s) but time of delivery shall not be of the essence.
11.2 ESEM shall despatch the Deliverables, by such method(s) as ESEM may deem suitable, to such address as may be notified to ESEM by the Client in writing from time to time. The cost of despatching the Deliverables is not included within the Fee and will be charged to the Client separately.
11.3 Risk in the Deliverables shall pass to the Client at the time the Deliverables are despatched to the Client.
12 ALTERATIONS AND CANCELLATIONS
12.1 ESEM shall have no obligation to perform any work or undertake any activity that does not relate to or comprise part of the Event.
12.2 At any time prior to or during the Event either party may by written notice to the other party recommend or request changes of or additions to the Event by describing the proposed change, setting out details of any additional work to be performed and/or any changes to the obligations of either party under any Agreement.
12.3 ESEM cannot guarantee to fulfil any request for changes to the Event but will use its reasonable endeavours to comply with the Client’s request, or provide a reasonably similar alternative, within a reasonable time scale. Any change made to the Event (including but not limited to a change in the number of Delegates) is likely to incur additional fees as detailed in Clause 8 which shall be notified to the Client by ESEM within 14 days of receipt by ESEM of the Client’s request. The Client shall notify ESEM within 3 days of receipt by it of the revised Fees estimate if the Client wishes to proceed with the proposed change to the Event. If the Client wishes to proceed then the Fees shall be revised accordingly. Pending agreement of any change between the parties, ESEM shall continue to perform and be paid for the provision of its obligations under these Conditions as if such change had not been requested.
12.4 If the Client insists on a change after having been notified by ESEM that either ESEM is unable to make such change, or the Client refuses to accept a reasonably similar alternative within a reasonable time scale offered by ESEM, or, in ESEM’s reasonable opinion, such change would materially affect the success of the Event and so ESEM is unwilling to accommodate such a change, then the Client shall be deemed to have cancelled the Event and the Fees shall become payable.
12.5 Any bookings relating to travel (including air and overland travel) are based on current schedules of the relevant carrier and may have to be amended to reflect any schedule or tax changes. ESEM will notify the Client as soon as reasonably practical of any changes before departure. However the Client acknowledges that schedule changes are outside ESEM’s control and that any cancellation by the Client as a result of such schedule changes shall result in the Fees becoming payable.
12.6 Notwithstanding paragraph 12.2, ESEM reserves the right to make changes to any of the arrangements relating to the Event at any time provided that ESEM notifies the Client of any such change as soon as is reasonably practicable. Subject always to Clause 22 (“Force Majeure Event”), ESEM will source a reasonably satisfactory alternative of a comparable standard (“Alternative”) to that part of the arrangements affected by the change, and will notify the Client of all relevant details relating to the Alternative (including any additional costs arising from such change). Should the Client refuse to accept the Alternative, it will be deemed to have terminated the Event and will be liable to pay the Fees, less any amount recovered by ESEM from any third party responsible for the change occurring.
12.7 For the avoidance of doubt, a “material change” as in Clause 12.6 includes a change of hotel or a change of venue for an important part of the Event, but, for the avoidance of doubt, shall exclude a change of aircraft type and configuration or a change to the Event, or part of the Event, which is due to circumstances beyond the reasonable control of ESEM.
Any complaints about the Event and any related services provided by ESEM or any third party supplier must be communicated ESEM (if possible, through the ESEM project manager), at the earliest opportunity in writing or in any other appropriate form, specifying any failure which the Client perceives at the place where the services concerned are supplied. The Client shall ensure that Delegates comply with the complaints procedure set out in this Clause. If ESEM or the relevant supplier is unable to deal with the problem or complaint at the time of the complaint, the Client shall confirm such complaint to ESEM in writing within 7 days of return. ESEM reserves the right to reject any complaint received after expiry of such 7 day period.
14.1 Each of the parties acknowledges that, whether by virtue of and in the course of an Agreement or otherwise, it shall receive or otherwise become aware of information relating to the other party, its clients, customers, businesses, business plans or affairs, which information is proprietary and confidential to the other party (“Confidential Information”).
14.2 Each of the parties agrees that any Confidential Information it holds in relation to the other party shall be held to that respective party’s order.
Subject to Clause 20, each of the parties warrants that it has full power and authority to carry out the actions contemplated under these Conditions, and that its performance under these Conditions will not infringe the rights of any third party or cause it to be in breach of any obligations to a third party.
16.1 Subject to Clause 16.2, ESEM’s maximum aggregate liability under or in connection with any Agreement, whether in contract, tort (including negligence) or otherwise, shall (unless otherwise agreed with the Client in writing) in no circumstances exceed the Fees payable to ESEM in respect of the Event giving rise to the liability.
16.2 Nothing in these Conditions shall exclude or in any way limit ESEM’s liability for fraud, or for death or personal injury caused by its negligence, or any other liability to the extent the same may not be excluded or limited as a matter of law.
16.3 Subject to Clause 16.2, ESEM shall not be liable to the Client whether in contract, tort, by statute or otherwise in respect of any: special, indirect, incidental or consequential loss or damage; loss of actual or anticipated profits; loss of goodwill; loss of data; loss of business or contracts; loss of revenue or of the use of money; loss of anticipated savings, arising out of or in connection with any Agreement, whether the same is foreseeable, known or foreseen or otherwise; and/or inconvenience.
16.4 These Conditions set forth the full extent of ESEM’s obligations and liabilities in respect of the Event. In particular, there are no conditions, warranties, representations or other terms, express or implied, that are binding on ESEM except as specifically stated in these Conditions. Any condition, warranty representation or other term concerning the performance of any of ESEM’s obligations hereunder which might otherwise be implied into or incorporated in these Conditions, whether by statute, common law or otherwise, is hereby excluded.
16.5 The Client shall fully indemnify ESEM for any claim by any Delegate against ESEM as a result of anything that the Client has accepted responsibility for hereunder, and shall fully indemnify ESEM for any claim by a third party supplier arising as a result of a breach of their terms and conditions by the Client or any Delegate.
17 TERM AND TERMINATION
17.1 Any Agreement shall have effect on and from the relevant Effective Date and, subject to the terms of the Booking Confirmation and this Clause 17, shall continue in full force and effect until each party has fully discharged all of its obligations under that Agreement.
17.2 Notwithstanding the provisions of Clause 17.1 above, either party may terminate an Agreement to which these Conditions apply immediately upon written notice to the other in the event:
17.2.1 of any material breach of that Agreement by the other party if such breach is not remediable or, if remediable, is not remedied within 14 days after the service by the party not in default of a written notice on the other party, specifying the nature of the breach and requiring that the same be remedied; or
17.3 For the avoidance of doubt, proposal of an Alternative under Clause 12.6 above does not amount to a material breach under Clause 17.2.1.
18 CONSEQUENCES OF TERMINATION
18.1 The termination of any Agreement shall be without prejudice to any rights or remedies available to, or any obligations or liabilities accrued to, either party at the effective date of termination.
18.2 Upon termination of any Agreement for any reason other than termination by the Client under clause 17.2:
18.2.1 ESEM will be paid the Fees;
18.2.2 each party shall immediately deliver to, or dispose of as directed by, the other party any and all materials and property belonging or relating to the other party, including without limitation all Confidential Information, and all copies of the same, then in its possession, custody or control; and
18.2.3 provisions of these Conditions which either are expressed to survive its termination or from their nature or context it is contemplated that they are to survive such termination, shall remain in full force and effect notwithstanding such termination.
19 INTELLECTUAL PROPERTY RIGHTS
19.1 The Client acknowledges and agrees that all Intellectual Property Rights created in relation to the Event by ESEM, wherever in the world enforceable, shall immediately upon creation vest in and shall be and remain the sole and exclusive property of ESEM. If and to the extent that the Event relies upon Intellectual Property Rights belonging to a third party, ESEM shall use its reasonable endeavours procure a licence for the Client to use such work on such terms as may be agreed between ESEM and the relevant third party (where necessary).
19.2 The client hereby grants to ESEM the non-exclusive right and licence to reproduce, distribute and use in any way the Client’s Intellectual Property in any logos, trade names or trademarks of the Client.
20 CONSENTS AND LEGAL COMPLIANCE
The Client accepts that ESEM’s performance of its obligations hereunder is conditional upon ESEM obtaining any and all licences, authorisations, permits and other consents necessary under the laws and regulations applicable in Spain and/or any country in which any part of the Event is scheduled to take place. The Client agrees to reimburse ESEM for all reasonable and verifiable costs and expenses incurred by ESEM in obtaining all such consents.
21 DATA PROTECTION
21.1 Each party shall comply with the provisions of the Organic Act of Data Protection (including the Data Protection Principles set out in that Act) and any similar or analogous laws, regulatory requirements or codes of practice governing the use, storage or transmission of personal data in the country where such personal data is processed and shall not permit any thing to be done which might cause or otherwise result in a breach by either party of the same.
21.2 The Client acknowledges that for the purpose of the Organic Act of Data Protection, it is the data controller and ESEM is the data processor of any personal data provided to it by the Client or obtained by ESEM as part of its obligations hereunder. ESEM shall comply with the Client’s reasonable instructions in relation to the collection, processing and disposal of any personal data.
21.3 The Client undertakes to obtain all necessary consents from the Delegates and any other individuals to which such personal data relates to ensure that ESEM has the right to process the personal data (including the right to transfer and to process the personal data in a country outside the European Economic Area) in accordance with the provisions of these Conditions.
22 FORCE MAJEURE
22.1 Neither party shall be liable for any delay in performing or failure to perform its obligations hereunder to the extent that and for so long as the delay or failure results from any act, event, non-happening, omission or accident beyond its reasonable control (a “Force Majeure Event”).
22.2 Force Majeure Events shall include but not be limited to strikes, lock-outs or other industrial action (other than strikes, lock-outs or other industrial action of any employees of the party seeking to rely on the Force Majeure Event), civil commotion, riot, invasion, war (whether declared or not) or threat of or preparation for war, fire, explosion, storm, flood, earthquake, volcanic eruption, subsidence, epidemic or other natural disaster, impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport, impossibility of the use of telecommunications networks or infrastructure, compliance with any law or governmental order, rule, regulation or direction, and/or breakdown of plant or machinery.
22.3 The party whose performance is affected by a Force Majeure Event shall, within two working days of becoming aware of the Force Majeure Event, provide a written notice to the other party, giving details of the Force Majeure Event, its likely duration and the manner and extent to which the performance of its obligations are likely to be prevented or delayed.
22.4 The occurrence of a Force Majeure Event shall not have the effect of discharging or postponing the affected party’s payment obligations to the other party.
23.1 Unless otherwise expressly stated in these Conditions, all notices and other communications required or permitted to be given under these Conditions shall be in writing and shall be deemed duly served if delivered by hand or sent by fax or pre-paid registered post (or, in the case of an address for service outside the United Kingdom, by registered air-mail) to the intended recipient at the address set out in the Booking Confirmation.
23.2 Any notice shall be deemed to have been duly served if delivered by hand, on delivery; if sent by pre-paid registered post, two Business Days after posting; if sent by registered air-mail, five Business Days after posting; if sent by fax or email, during normal business hours (meaning 9.00am to 5.00pm London time on a Business Day), immediately on transmission, or if outside normal business hours, on the following Business Day, provided that, in each case a confirmatory transaction report or read receipt is obtained and retained by the sender.
24 ASSIGNMENT AND SUB-CONTRACTING
25.1 ESEM may assign or sub-contract any Agreement in whole or in part to any third party without recourse to the Client, provided that if ESEM sub-contracts any of its obligations under this Agreement it shall remain responsible for Works produced by its sub-contractors. If ESEM sub-contracts any of its obligations under this Agreement it does so as principal and not the agent of the Client.
24.2 The Client may not assign, transfer, charge, sub-contract or otherwise dispose of any Agreement or any of its rights or obligations arising under this Agreement without the prior written consent of ESEM.
25 THIRD PARTY RIGHTS
25.1 A person who is not a party to an Agreement has no right under the Spanish Civil Code to enforce any term of such Agreement.
26.1 The failure of either party to enforce or to exercise at any time or for any period of time any term of or any right pursuant to these Conditions does not constitute, and shall not be construed as, a waiver of such term or right and shall in no way affect that party’s right later to enforce or to exercise it.
26.2 The Agreement contains all the terms agreed between the parties regarding its subject matter and supersedes any prior agreement, understanding or arrangement between the parties, whether oral or in writing. Each of the parties agrees that in entering into an Agreement it has not relied on, and shall have no remedy in respect of, any statement, representation, warranty or understanding other than the statements, representations, warranties and understandings expressly set out in the Agreement.
26.4 Subject to Clause 26.5, Both parties accept that Spanish Law will be applicable to this agreement and they accept that the settlement of any disputes relating to the interpretation of this agreement will fall under the jurisdiction of the Spanish Courts.
26.5 For the avoidance of doubt, any additional agreement relating to the role of ESEM, or its employees, as a FIFA Match Agent (a “FIFA Match Agreement”) will be subject to the provisions contained with the Regulations for FIFA Match Agents in force at the date of signature.