TERMS AND CONDITIONS OF LICENSE FOR THE USE AND MAINTENANCE OF THE ST. KILLIANS CANDLE BURNING SYSTEM
Capitalised terms used but not otherwise defined herein have the meaning set forth below:
“Confidential Information” means any information and data however recorded and preserved of a confidential and proprietary nature and including but not limited to trade secrets, Know-How, inventions, technology, passwords, software, formulae, techniques, processes, operations, customer lists, financial information, forecasts, analyses, compilations, sales and marketing plans, reports, interpretations, studies, drawings, patents, patent applications, designs, configurations and experiments communicated by either party to the other party and whether furnished orally or in writing or gathered by inspection, learned through observation or disclosed at any presentation and regardless of whether specifically identified as confidential.
“Effective Date” means the date this Agreement is executed by the Purchaser.
“Glass Fittings” means the glass holders which sit on the Votive Candle Stand and which house the St. Killians Candles which are the subject of a European Patent Number 2210038 and Irish Patent Number S85204.
“Intellectual Property Rights” means copyright, design rights (whether registered or unregistered); all rights in inventions (whether patentable or not), patent applications, patents; Know How, Confidential Information; trademarks, trade names, business names, domain names and all goodwill acquired in relation to same and all rights of an equivalent nature whether registered or registerable and which exist now or in the future anywhere in the world and which is owned by or licenced to Seller and/or which otherwise subsists in the Votive Candle Stand and/or Glass Holders and/or St. Killians Candles.
“Know-How” means the processes, techniques and methods of working all of a secret, confidential or proprietary nature which have been or are being developed and includes all scientific, engineering, information, expertise and manufacturing design.
“Purchase Price” means the amounts paid for the St. Killians Candles by the Purchaser.
“Purchaser” means the Parish where the church in which the St. Killians Candle Burning System is to be installed is located as represented by the Parish Priest for the time being and from time to time.
“Seller” means St Killian Candle Company Limited having its registered office at Cahir Business Park, Cahir, County Tipperary.
“St. Killians Candles” means the candles manufactured (either directly or through an authorised manufacturer), distributed (either directly or through an authorised distributor) and/or supplied by (either directly or through an authorised supplier) the Seller.
“St. Killians Candle Burning System” means the Votive Candle Stand, the Glass Fittings and the St. Killians Candles.
“Votive Candle Stand” means the unit provided by the Seller to the Purchaser which holds the Glass Fittings.
- Upon the Purchaser’s initial payment of any part of the Purchase Price to the Seller, the Purchaser shall acquire the limited right and non-exclusive, limited licence to use the Votive Candle Stand and/or the Glass Fittings separately identified on the Purchaser’s purchase order free of charge, in accordance with and subject to the terms of this Agreement. All right, title and interest in and to the Votive Candle Stand and the Glass Fittings shall at all times remain with the Seller and under no circumstances shall the title to the Votive Candle Stand or the Glass Fittings transfer to the Purchaser or to any other third party. If the Purchaser has previously purchased and acquired an ownership interest in and to Votive Candle Stands from the Seller, this Agreement shall not affect such ownership interest. For the avoidance of doubt under no circumstances shall the Purchaser transfer the Votive Candle Stand or the Glass Fittings to third parties or otherwise deal in the Votive Candle Stand or the Glass Fittings other than as permitted by this Agreement.
- Nothing in this Agreement shall have the effect of assigning any Intellectual Property Rights to the Purchaser or its employees, contractors and/or agents and/or the Purchaser’s congregation or any third parties.
- During the term of this Agreement, the Seller will repair, replace and assist with cleaning the Glass Fittings, and will repair, replace and provide spare parts for the Votive Candle Stands, in each case when required in the Seller’s reasonable discretion, free of charge; provided, however, that the Purchaser is responsible for all shipping costs associated with sending the Glass Fittings and/or the Votive Candle Stands to the Seller in a manner reasonable to secure and protect same from breakage. During the term of this Agreement, the Purchaser is responsible for regular cleaning and maintenance of the Glass Fittings and the Votive Candle Stands in accordance with maintenance guides, cleaning videos, and other instructional material made available by the Seller to the Purchaser from time to time.
- The Purchaser hereby grants the Seller a licence during the term of this Agreement to enter into the church where the Votive Candle Stands or the Glass Fittings are situated or any other premises owned, occupied or controlled by the Purchaser where the Glass Fittings or the Votive Candle Stands are situate to enable the Seller to maintain, clean, repair, remove or replace the Glass Fittings and the Votive Candle Stands, pursuant to this Agreement. The Purchaser shall further permit the Seller (through any of its officers, employees, or agents) at any time and from time to time, on reasonable notice, to inspect the Votive Candle Stand and/or the Glass Fittings during regular business hours.
- The Seller will supply the St. Killians Candles to the Purchaser from the Effective Date at the Seller’s prevailing retail price at the time of each order. The Purchaser’s payment of the Seller’s invoices shall constitute the Purchaser’s continuing acknowledgement and acceptance of this Agreement.
- During the term of this Agreement the Purchaser acknowledges and agrees that: (i) the Purchaser shall use only the St. Killians Candles supplied by the Seller in the Glass Fittings and the Votive Candle Stands; (ii) to use any other candle in the Glass Fittings and/or the Votive Candle Stands would compromise the safe use of the Glass Fittings and the Votive Candle Stands; (iii) the use of the St. Killians Candles in any holder or fitting other than the Glass Fittings would compromise the safe use of the St. Killians Candles and the burning of the St. Killians Candles without emitting smoke; and (iv) the Purchaser may use candles from other suppliers for burning in candle stands and/or glass fittings other than the Glass Fittings and/or the Votive Candle Stands.
- The Purchaser shall not in any way alter the Votive Candle Stand or the Glass Fittings whether to the intent of using candles sourced from another supplier other than the Seller or for any other purpose. If the Purchaser does so, it waives any right or entitlement it may have against the Seller including any costs, claims, liabilities, loss or damage.
- The Purchaser covenants and agrees that it shall not copy, alter and/or modify the Glass Fitting, the Votive Candle Stand, or any part thereof in any manner whatsoever.
- The term of this Agreement shall be one year commencing on the date this Agreement is executed by the Purchaser (the “Effective Date”), and shall automatically renew unless written notice of termination is provide by one party to the other within thirty (30) days of end of the then-current term, or unless it is otherwise terminated in accordance with Section 10.
- This Agreement may be terminated at any time by either the Seller or the Purchaser upon the giving of thirty (30) days’ prior notice in writing to the other of its intention to terminate this Agreement; provided, however, that this Agreement may be terminated immediately by the Seller if the Purchaser: (i) is found to be using candles for the Votive Candle Stand and/or the Glass Fittings other than the St. Killians Candles; (ii) fails to pay any amount due to the Seller under this Agreement or under any other contracts, agreements, purchase orders or invoices between the parties; (iii) has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or (iv) becomes insolvent, files for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, examinership, or assignment for the benefit of creditors.
- On termination of this Agreement for any reason:
- The Seller shall, within seven (7) days, invoice the Purchaser for all goods delivered or provided to the Purchaser but which have not yet been invoiced and the Purchaser will pay such invoices and all outstanding invoices in full (minus any credit notes which have been issued by the Seller to the Purchaser) within a further period of thirty (30) days (except for amounts that are disputed in good faith).
- The Purchaser shall, within fifteen (15) days, send at its cost and expense, via An Post or nationally recognized courier service (in either case with tracking information promptly forwarded to the Seller), send any St. Killians Candles in its possession but which have not been used to the Seller and the Seller shall, within a reasonable time following receipt thereof, issue a credit to the Purchaser for such returned St. Killians Candles.
- The Purchaser shall, within fifteen (15) days send at its cost and expense, via An Post or nationally recognized courier service (in either case with tracking information promptly forwarded to the Seller), send to the Seller the Glass Fittings and the Votive Candle Stands in its possession.
- If the Purchaser shall fail to ship any of the St. Killians Candles, Glass Fittings or Votive Candle Stands to the Seller, the Seller may, in its sole and absolute discretion, (i) take possession of the Glass Fittings, Votive Candle Stands and/or unused St. Killians Candles wherever it may be located, without demand or notice, without any court order or other process of law, and without liability to the Purchaser for any damages occasioned by such action; (ii) proceed by court action to enforce performance by the Purchaser of this Agreement and/or to recover all damages and expenses incurred by the Seller; or (iii) exercise any other right or remedy available to the Seller at law or in equity.
- The licence granted pursuant to Section 1 shall immediately terminate and the Purchaser shall immediately cease its use of the Glass Fittings and the Votive Candle Stands.
- Warranties. The Seller warrants that:
- at the time of sale, it will have title to sell the St. Killians Candles, Glass Fittings or Votive Candle Stands to the Purchaser; and
- the St. Killians Candles, Glass Fittings or Votive Candle Stands sold to the Purchaser will conform with the specification for them published by the Supplier or their manufacturer.
- Remedy. Subject to Clause 16, if the Seller is in breach of the warranties given by it under Clause 12, its liability shall be limited to:
- replacement of the St. Killians Candles, Glass Fittings or Votive Candle Stands concerned; or
- at the option of the Seller, reimbursement of the Purchase Price.
- No Other Liability. Subject to Clause 16, the Seller shall have no further liability to the Purchaser other than as described in Clause 13, whether under these conditions of sale or on any other basis including liability in tort as a result of the sale of the St. Killians Candles, Glass Fittings or Votive Candle Stands
- Consequential Loss Etc. Subject to Clause 16, the Seller shall not under any circumstances be liable to the Purchaser by reason of any representation or warranty, condition or other term or any duty of common law, or under the express terms of these conditions of sale, for any consequential, special, incidental or punitive loss or damage (whether for loss of current or future profits, loss of enterprise value or otherwise) and whether occasioned by the negligence of the Seller, its employees or agents or otherwise, even if advised of the possibility of such damages.
- Non-Excludable Liability. Nothing in this these conditions of sale shall exclude or limit the liability of the Seller for death or personal injury resulting from the negligence of the Seller or any of its employees or agents, nor shall they operate to exclude or limit any statutory rights which cannot be legally excluded or limited, including the statutory rights of a consumer.
- The parties acknowledge and agree that some of the provisions of this Agreement shall survive the termination of this Agreement including without limitation the provisions of clauses 4, 7, 8, 11, 13, 15, 16, 21, as well as any other provision that, in order to give proper effect to its intent, should survive such termination, shall survive the termination of this Agreement.
- The Purchaser shall not assign, transfer, delegate, or subcontract any of its rights or obligations under this Agreement without the prior written consent of the Seller. Notwithstanding the foregoing, transitions by individual priests in and from the parish in which the units are housed shall not affect the validity and continuance in force and effect of this Agreement. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Purchaser of any of its obligations hereunder. The Seller may at any time assign, transfer, or subcontract any or all of its rights or obligations under this Agreement without the Purchaser’s prior written consent. This Agreement is binding on and inures to the benefit of the parties to this Agreement and their respective permitted successors and permitted assigns.
- Nothing herein creates a joint venture or partnership between the parties to this Agreement or an employee/employer relationship. Neither party to this Agreement has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, agreement, or undertaking with any third party.
- This Agreement may be executed in any number of counterparts, and by the parties on separate counterparts, each of which so executed and delivered shall constitute an original, but all the counterparts shall together constitute one and the same instrument.
- If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction, unless the substantive purpose of this Agreement is then frustrated, in which case either party may terminate this Agreement on written notice.
- This Agreement, together with any documents referred to in this Agreement, constitutes the entire agreement between the parties relating to the subject matter of this Agreement and supersedes all prior communications, drafts, agreements, offers, representations, warranties, stipulations, undertakings and agreements of whatsoever nature, whether oral or written, between the parties. Notwithstanding the forgoing, this Agreement does not supersede any prior purchase orders, outstanding invoices or similar arrangements between the parties unless otherwise agreed.
- This Agreement may be amended from time to time solely by the Seller posting updated terms and conditions on its website, http://saintkillians.ie/.
- The failure to exercise or delay in exercising a right or remedy under this Agreement shall not constitute a waiver of the right or remedy or a waiver of any other rights or remedies, and no single or partial exercise of any right or remedy under this Agreement shall prevent any further exercise of the right or remedy or the exercise of any other right or remedy.
- Each of the parties hereto shall execute and deliver such additional documents, instruments, conveyances, and assurances and take such further actions as may be required to carry out the provisions hereof and give effect to the transactions contemplated hereby.
- All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the first page of the most recent invoice containing such information (or to such other address that may be designated by the receiving party from time to time in accordance with this Section). All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt by the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
- For purposes of this Agreement, whenever the singular is used herein, the same shall include the plural, and whenever the plural is used herein, the same shall include the singular, where appropriate. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
- Governing Law. These conditions of sale shall be governed by the exclusive jurisdiction of Irish law.