Terms and Conditions of License for the Use and Maintenance
of the St. Killians Candle Burning System
Capitalized 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 US Patent Application Number 12/734,075 and Canadian Patent Number: 2,701,852.
“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 licensed 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 Killians America Inc.
“St. Killians Candles” means the candles manufactured (either directly or through an authorized manufacturer), distributed (either directly or through an authorized distributor) and/or supplied by (either directly or through an authorized 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 license 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.
- 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 a petition for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, 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 United States Postal Service 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 United States Postal Service 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 Purchaser, 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 license 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.
- Subject to Paragraph 15 below, the Seller’s liability for any loss or damage direct or otherwise and howsoever caused whether in tort, contract or otherwise under this Agreement shall not exceed the Purchase Price and each of the parties acknowledges and agrees that in agreeing to this Agreement it does not do so in reliance on any representation, warranty or other provisions except as expressly provided for in this Agreement and any conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law. This limited warranty does not apply where the Glass Fittings, Votive Candle Stands or St. Killians Candles have been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling, abnormal physical stress, abnormal environmental conditions, or use contrary to any instructions issued by the Seller, or used with any third-party product. THE REMEDIES SET FORTH IN THIS SECTION 12 ARE THE PURCHASER’S SOLE AND EXCLUSIVE REMEDIES AND THE SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH HEREIN.
- THE SELLER SHALL NOT BE LIABLE TO THE PURCHASER FOR AND GIVES NO WARRANTY IN RESPECT OF ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGE INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, BUSINESS, REVENUE, DATA OR USE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT, TORT, WARRANTY, OR ANY OTHER LEGAL THEORY.
- Nothing in this Agreement shall exclude or limit the Seller’s liability for death, personal injury, or property damage caused by its negligence.
- 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, 12, 13, 14, 23, 24, 25, and 26, 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.
- All matters arising out of or relating to this Agreement shall be governed by, and shall be construed according to the laws of the State of New York, without regard to its conflicts of law provisions. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in any court of competent jurisdiction located in the County and State of New York. Each of the parties hereto hereby submits to the exclusive jurisdiction of such courts in the County and State of New York in any such suit, action, or proceeding.
- Each of the parties hereby irrevocably waives its right to a jury trial in any litigation arising out of or relating in any way to this Agreement. In the event that any party institutes any legal suit, action, or proceeding against the other party arising out of or relating to this Agreement, the prevailing party in the suit, action or proceeding shall be entitled to receive, in addition to all other damages to which it may be entitled, the costs incurred by such party in conducting the suit, action, or proceeding, including reasonable attorneys’ fees and expenses and court costs. The parties agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof and that the parties shall be entitled to equitable relief, including injunctive relief or specific performance of the terms hereof, in addition to any other remedy to which they are entitled at law or in equity.
- 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.
Version September 6, 2019.