The following terms and conditions apply to and form part of the Contract entered into between Sodexo and a Customer making a booking for Services to be provided at a Function.
1.1 In these Conditions, unless the context otherwise requires:
(a) industrial action, strikes, lockouts, blockades, riots, acts of war, acts of terrorism, piracy, destruction of essential equipment by fire, explosion, storm, flood, earthquake;
(b) failures of, shortages in or a loss of access to equipment, power, supplies, fuel or transport facilities;
(c) failure of a third party to provide required consent, exemption or clearance unless caused by the act or omission of either party;
(d) cancellation of the Function by a third party unless caused by the act or omission of either party;
(e) failure of a third party to permit reasonable advance access to the Premises or to provide proper and reasonable food preparation amenities unless caused by the act or omission of either party; or
(f) failure of a third party to permit access to the Premises unless caused by the act or omission of either party.
1.2 The headings in these Conditions are inserted only for convenience and shall not affect their construction.
1.3 Where appropriate, words importing the male, female or neuter genders shall include the other genders and words denoting a singular number only shall include the plural and vice versa.
1.4 Any reference to a Condition shall be construed as a reference to one of these Conditions.
1.5 If there is any inconsistency between the Conditions, the Function Sheet and the Event Agreement, priority shall be given first to the Conditions, then to the Event Agreement and finally to the Function Sheet.
1.6 In these Conditions the words "other", "includes", "including" and "in particular" do not limit the generality of any preceding words and any words which follow them shall not be construed as being limited in scope to the same class as the preceding words where a wider construction is possible.
2.1 These Conditions shall apply to the Contract to the exclusion of any other terms and conditions contained or referred to in any quotation, letter or other communication between Sodexo and the Customer and the provisions of these Conditions shall prevail unless expressly varied in writing and signed by a director on Sodexo’s behalf.
2.2 No variation to the Event Agreement or the Function Sheet shall be binding unless expressly agreed to in writing by Sodexo and signed on its behalf.
2.3 The rights provided in these Conditions are cumulative and shall not be deemed exclusive of any other rights to which either party may be entitled under the Contract or pursuant to the direction (howsoever embodied) of any court of competent jurisdiction or otherwise.
2.4 Where the Contract only relates to the provision of food and beverages as part of a hospitality package at a Function, these Conditions shall apply only in so far as they are relevant to that situation.
3 Formation of Contract
3.1 The Contract is formed when Sodexo receives the signed Event Agreement and Deposit and then confirms in writing that Sodexo accepts the Booking. No Booking shall be binding on Sodexo until Sodexo issues a confirmation of acceptance. Signature by Sodexo of the Event Agreement shall be confirmation of acceptance.
3.2 A reasonable period before the date of the Function, Sodexo will send a Function Sheet to the Customer. The Function Sheet forms part of the Contract and contains further details about the Services to be provided by Sodexo at the Function, including the number of Guests and specific choice of menu.
4 Appointment of Sodexo
4.1 The Customer appoints Sodexo as the Customer's exclusive provider of the Services at the Function. Accordingly, the Customer agrees that it shall not provide the Services itself, nor shall it appoint or allow anyone other than Sodexo to provide the Services at the Function.
4.2 The Customer shall not hinder or delay or otherwise prevent Sodexo's performance of the Services and the Customer shall provide Sodexo with all reasonable assistance and cooperation for Sodexo to perform its obligations under the Contract.
4.3 The Customer shall promptly provide to Sodexo all information which Sodexo may reasonably require to enable it to perform the Services. If the Customer becomes aware that it has supplied incorrect or insufficient information to Sodexo, the Customer shall provide Sodexo forthwith with corrected and/or additional information.
5 Sodexo's Obligations
Sodexo shall perform the Services:
6 Customer’s Obligations
6.1 The Customer shall:
6.2 Any materials, goods, supplies or other items delivered, held or stored on the Premises on the Customers behalf shall be at the Customers sole risk and Sodexo shall not be liable for any loss or damage howsoever caused to such items.
7 Charges and payment
7.1 If the number of Guests specified on the Function Sheet (or that attend the Function) is less than the number of Guests specified in the Event Agreement then Sodexo will charge either the actual number of Guests attending or the number of Guests on the Event Agreement whichever is the greater.
7.2 If the number of Guests specified on the Function Sheet (or that attend the Function) is greater than the number of Guests specified in the Event Agreement then Sodexo will charge for the actual number of Guests. Sodexo's prior written approval is required for any number of Guests which is more than 125% of the Guests specified in the Event Agreement as there may restrictions on the number of Guests that can be accommodated.
7.3 The Charges for the Function will be due and payable in cleared funds (without right of set-off, counterclaim or other deduction) typically as set out below:
7.4 The time of payment shall be of the essence in the Contract. If the Customer fails to make a payment of the Charges in accordance with these payment due dates then Sodexo may cancel the Booking and this shall be construed as a Cancellation by the Customer and the provisions of clause 9.3 shall apply.
7.5 If the Booking is made less than 30 days before the date of the Function then all Charges shall be due and payable at the time the Booking is made.
7.6 If the number of Guests is greater than the number in the Event Agreement then Sodexo will charge for such additional Guests at the rate agreed in the Event Agreement per Guest in accordance with clause 7.2 (Additional Charges) and if a payment card has been used then the Customer authorises Sodexo to charge this amount to the payment card used for the Booking.
7.7 Without prejudice to any other rights and remedies that Sodexo may have, if Sodexo does not cancel the Booking in the circumstances set out in clause 7.4, Sodexo shall be entitled to charge daily interest at the rate of 3% above the HSBC plc base rate until such time as payment is made.
7.8 If the Customer pays any amount by debit or credit card, the card shall be charged at the time such payment is made.
7.9 The Customer authorises Sodexo to charge to its debit or credit card (as appropriate) any charges which the Customer incurs in respect of the Function and which remain unpaid at the conclusion of the Function.
7.10 All Charges include VAT.
7.11 If, within 20 Business Days of the date of receipt of an invoice from Sodexo for any sum due under the Contract, the Customer has not notified Sodexo that it disputes whether amounts contained in such invoice are properly due it shall be deemed to have accepted that the sums stated as payable are properly due and to have waived all its rights to subsequently dispute whether those sums are due.
8 Changes to the Charges
8.1 Sodexo publish price lists on an annual basis. The Charges for the Booking are the Charges set out in the price list that is in effect on the date of the Function not the price list that is in effect on the date the Booking was made.
8.2 Sodexo will make reasonable efforts to provide accurate information on the Charges. In some circumstances, a Booking may be made that is outside of the period covered by Sodexo's current price list. If this is the case, then Sodexo will advise the Customer when the price list that covers the Function becomes available.
9 Cancellation by the Customer
9.1 Any cancellation of a Booking must be by notice in writing and any refund (if any) of Charges and/or Deposit (if any) by Sodexo shall be in accordance with this clause 9.
9.2 The Customer may cancel its Booking within 5 Business Days of date on which it sent the Event Agreement to Sodexo. Sodexo will refund any Deposit and/or Charges that have been paid. If the Booking is made less than 30 days before the date of the Function then this clause will not apply and Sodexo will refund the Charges as set out in clause 9.3 below.
9.3 Without prejudice to any other rights and remedies Sodexo may have, if the Customer cancels the Booking then Sodexo will refund the Charges as set out below:
10 Cancellation by Sodexo
10.1 Sodexo is entitled to cancel the Booking at any time more than 91 days (inclusive) prior to the Function. Sodexo shall notify the Customer in writing as soon as is reasonably practicable of such cancellation. In the event of such cancellation by Sodexo, Sodexo shall at the Customer’s option either: (a) use its reasonable endeavours to offer an alternative date and/or venue; or, (b) refund in full all sums paid by the Customer, including any Deposit.
10.2 Sodexo may cancel a Booking forthwith by notice in writing, without prejudice to any other rights or remedies Sodexo may have, if the Customer becomes bankrupt or insolvent or enters into liquidation or receivership or is subject to an application for an administration order or suffers an administrative receiver to be appointed in relation to the whole or part of its assets or makes a composition with its creditors or suffers any judgment to be executed in relation to any of its property or assets.
10.3 Sporting venues: A sporting venue is made available to Sodexo on dates when there is not a sporting fixture. The relevant sports club advises Sodexo of scheduled fixtures but the sports club may require the sporting venue for non-scheduled short notice sporting fixtures. If a short notice sporting fixture occurs on the date of the Function then Sodexo will not be able to provide the Services and may cancel the Booking. If Sodexo cancels the Booking because of a short notice sporting fixture then Sodexo will (at Sodexo's discretion) either: (a) offer a reasonable alternative date and/or venue; or (b) reimburse any sums paid in respect of the Booking.
10.4 Race meetings: If the Booking is made in conjunction with a race meeting then if the race meeting is cancelled, Sodexo may cancel the Booking. If Sodexo cancels the Booking because of a race meeting cancellation then Sodexo will (at Sodexo's discretion) either: (a) offer a reasonable alternative date;and/or venue; or (b) will reimburse any sums paid in respect of the Booking. Please note if the race meeting cancellation occurs after Sodexo has started to provide the Services at the Function then the provisions of this clause 10.4 shall not apply.
11 Inability to Provide an Aspect of the Services
If, for any reason Sodexo is unable to supply a part of the Services specified on either the Event Agreement or the Function Sheet, Sodexo shall notify the Customer as soon as possible. Where reasonably practicable, Sodexo shall replace the particular part of the Services with one of at least equal standard and value at no additional cost to the Customer. Sodexo shall agree the details of the replacement Service with the Customer. If it is not reasonably practicable for Sodexo to replace the part of the Service then Sodexo shall refund in full all sums paid by the Customer that relate to that part of the Services.
12.1 If the Customer wishes to change the Services detailed on the Event Agreement and/or the Function Sheet after the date that the Booking is made, then the Customer must notify Sodexo in writing as soon as possible. Sodexo will notify the Customer if Sodexo is able to accommodate these changes and/or give rise to additional costs. Any changes to a Booking must be confirmed by Sodexo in writing. The Customer will have to pay for any additional costs resulting from the changes to the Booking.
12.2 Sodexo reserves the right not to vary the Contract.
13.1 Nothing in this Agreement shall be interpreted or construed as excluding or limiting the liability of either party for any matter in respect of which it would be illegal or unlawful do so, including death or personal injury caused by such party's negligence or fraudulent misrepresentation.
13.2 Subject to clause 13.1, the total aggregate liability of Sodexo under or in connection with the Contract (whether in contract, for negligence, breach of statutory duty or otherwise) for any loss or damage of whatsoever nature and howsoever caused shall be limited to and in no circumstances shall exceed the Charges.
13.3 Subject to clause 13.1, Sodexo shall not be liable to the Customer in contract, tort (including negligence and breach of statutory duty) or otherwise howsoever arising in connection with this Contract for:
13.4 In respect of any event that gives rise to a claim under this Contract or otherwise howsoever arising, the Customer agrees to notify Sodexo within 20 Business Days of the event giving rise to the claim and Sodexo shall not otherwise be liable.
13.5 The Customer agrees that before bringing a claim for the same against Sodexo, the Customer shall use its best endeavours to recover losses, claims, demands or expenses incurred by it from its insurers instead of Sodexo and to the extent that it is successful in recovering such sums from its insurers Sodexo shall not be liable to the Customer.
The Customer shall indemnify and keep indemnified Sodexo for all loss of or damage to property at the Premises including but not limited to any historical exhibits, and Sodexo's expenses, costs and claims in respect of the same suffered or incurred by Sodexo (in whole or in part) during or as a result of the Function arising from or caused by (whether directly or indirectly) the acts or omissions of the Customer, any Guest or Act.
15 Force Majeure
Neither party shall be in breach of this Contract, nor liable for any failure or delay to perform any of its obligations (save in respect any payment obligation) in relation to a Booking due to an Event of Force Majeure the party concerned shall not incur any liability to the other except as specified in clause 16.2.
16 Assignment and Subcontracting
16.1 Neither party shall be entitled to assign or transfer the Contract, whether in whole or in part, without the prior written consent of the other.
16.2 Notwithstanding clause 16.1, Sodexo shall be entitled to sub-contract the Services in whole or in part provided that:
17 Entire Agreement
17.1 Each of the parties acknowledges that it is not entering into the Contract in reliance upon any representation, warranty, collateral contract or other assurance (except those set out in these Conditions and the documents referred to in it) made by or on behalf of any other party before the execution of the Contract. Each of the parties waives all rights and remedies which, but for this clause 17, might otherwise be available to it in respect of any such representation, warranty, collateral contract or other assurance, provided that nothing in this clause 17.1 shall limit or exclude any liability for fraud.
17.2 Any conditions or warranties (whether express or implied by statute or common law or arising from conduct or a previous course of dealing or trade custom or usage or otherwise howsoever) as to the care and skill with which Sodexo shall provide the Services are expressly negatived by these Conditions to the fullest extent permitted by law.
17.3 No variation of the Contract shall be effective unless in writing and executed by or on behalf of each of the parties.
Delay in exercising, or a failure to exercise, any right or remedy in connection with the Contract shall not operate as a waiver of that right or remedy. A single or partial exercise of any right or remedy shall not preclude any other or further exercise of that right or remedy, or the exercise of any other right or remedy. A waiver of a breach of the Contract shall not constitute a waiver of any subsequent breach.
19 Intellectual Property
19.1 All content in or on Sodexo’s website and brochures (including pictures, designs, logos and text) (Content) is owned by or licensed to Sodexo. The Content is protected by copyright and other laws and the Customer shall not use nor procure the use of such content other than as permitted by Sodexo in writing.
19.2 The Customer shall not, and it procures that any third party it is connected to shall not, use on any promotional material or collateral any of Sodexo’s and/or the Imperial War Museum’s intellectual property, including but not limited to, any Content, logo’s, copyright materials, patents, advertising materials or otherwise without obtaining the prior written agreement of Sodexo and/or the Imperial War Museum (as applicable). Further the Customer may only use any Sodexo and/or Imperial War Museum’s (as applicable) intellectual property in any advertising, marketing or promotional materials or collateral that have been approved in writing and in advance of being issued or published, by Sodexo and/or the Imperial War Museum (as applicable). In order to comply with the approval process referred to herein, the Customer shall provide (at its cost) a sample of the relevant advertising, marketing or promotional materials or collateral to Sodexo and/or the Imperial War Museum (as applicable). Where a sample is approved, the Customer shall only be entitled use the advertising, marketing or promotional materials or collateral in exactly the same form as the approved sample
19.3 If the Customer creates intellectual property rights in accordance with clause 19.2, nothing shall transfer Sodexo and/or the Imperial War Museum’s rights in relation to any of its intellectual property rights included in such materials and/or collateral and such rights shall at all times remain with Sodexo and/or the Imperial War Museum (as applicable).
20 Personal Data
21.1 All notices including any request for variation of the Services by the Customer, should be made in writing and sent by post or fax to the address of the other party shown on the Event Agreement.
21.2 Any notice sent by fax shall only be valid when the sender has received a receipt confirming a satisfactory fax transmission.
21.3 A notice shall be deemed to have been received:
21.4 In proving service of a notice, it shall be sufficient to prove that delivery was made or that the envelope containing the notice was properly addressed and posted.
21.5 E-mail notice shall not be valid for the purposes of these Conditions.
22 Relationship between Parties
Nothing in these Conditions shall constitute or be deemed to constitute a partnership or other form of joint venture between the parties or constitute or be deemed to constitute either party the agent or employee of the other for any purpose whatsoever.
23 Third Party Rights
No person who is not a party to the Contract is entitled to enforce any of its terms, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
The parties intend each of these Conditions to be severable and distinct from the others. If a Condition is held to be illegal, invalid or unenforceable, in whole or in part, the parties intend that the legality, validity and enforceability of the remainder of these Conditions shall not be affected.
25 Governing Law and Jurisdiction
The Contract and these Conditions are governed by, and shall be interpreted in accordance with, English law and each party irrevocably submits to the exclusive jurisdiction of the English Courts in relation to all matters arising out of or in connection with the Contract.