WALSTEAD GROUP OF COMPANIES
TERMS AND CONDITIONS OF BUSINESS – CUSTOMER Issue date: 4th April 2012
Unless expressly agreed otherwise in writing by the Walstead Group of Companies, signed by an authorised representative thereof, these are the ONLY terms and conditions on which the Walstead Group of Companies is prepared to contract with you (the “Customer”).
The Walstead Group of Companies consists of: (i) Wyndeham Press Group Limited (registered company number 00933418); (ii) Wyndeham Heron Limited (registered company number 02586277); (iii) Wyndeham Impact Limited (registered company number 02249876); (iv) Wyndeham Grange Limited (registered company number 00553857); (v) Rhapsody Limited (registered company number 01280705); (vi) Wyndeham Gait Limited (registered company number 00326819); (vii) Wyndeham Print Direct Limited (registered company number 03441143); (viii) Wyndeham Plymouth Limited (registered company number 00200363); (ix) Wyndeham Peterborough Limited (registered company number 02261988); (x) Wyndeham Roche Limited (registered company number 00720976); (xi) Wyndeham Web Limited (registered company number 0317099); (xii) Southernprint Limited (registered company number 01085192); (xiii) Walstead Investments Limited (registered company number 06750402); and (xiv) any other entity which from time to time is a group company or affiliated company of any of the above entities (including any subsidiary or holding company of that entity or any subsidiary of any direct or indirect holding company of that entity), each being a “Group Company” and collectively being referred to as the “Group” for the purposes of these terms and conditions, as updated from time to time by the Group (the “Terms”).
Where an Order is accepted by a Group Company, that Order together with these Terms (together a “Contract”) will constitute a separate binding and enforceable contract between the Customer and the relevant Group Company accepting the Order. These Terms are automatically deemed incorporated into each and every Contract, subject to any permitted variation provided for under these Terms, and shall accordingly govern the same. Where there is any manifest inconsistency between the provisions of these Terms and any Order, the provisions of the Order will apply.
PLEASE NOTE: The terms of each Contract shall apply as between the parties in respect of the matters described in the Order to the exclusion of all other terms (including any terms and conditions that the Customer purports to apply). Any attempt by you (or on your behalf) as the Customer to impose any other terms or conditions to the trading relationship with any Group Company is hereby explicitly and expressly deemed automatically rejected in advance (and any such terms and conditions are likewise deemed rejected automatically in advance) and will be (and is) wholly ineffective and non-binding upon each and every Group Company. No terms other than these Terms are or will be acceptable to the Group, save as expressly agreed and physically signed in writing by an authorised representative of the relevant Group Company agreeing to a variation to these Terms in accordance with these Terms.
PLEASE ALSO NOTE: These Terms are automatically deemed accepted by you as the Customer upon the earlier of (i) a Group Company accepting your Order; or (ii) a Group Company undertaking any work on your behalf. Save as expressly agreed and physically signed in writing by an authorised representative of the relevant Group Company, these Terms will apply to your entire relationship and all dealings with any Group Company. There is no need for any Group Company to issue you with duplicate copies of these Terms when each Contract is entered into and there is no obligation on any Group Company to do so. Failure to provide a copy of these Terms with each Contract shall not in any way prejudice the fact that these Terms shall govern each Contract as provided for herein.
In these Terms (unless context otherwise requires):
1.1 “Contract” shall mean the contract between a Group Company and the Customer for the supply of Work, and these conditions of business.
1.2 “Customer” shall mean the person, firm or company contracting the Work.
1.3 “Losses” means all costs (including legal costs and costs of enforcement), expenses, liabilities (including any tax liability), injuries, direct, indirect or consequential loss (all three of which terms include pure economic loss, loss of profits, loss of business, depletion of goodwill and loss of opportunity to deploy resources elsewhere), damages, claims, demands, proceedings and judgments;
1.4 “Order” means an order placed by the Customer for Work in accordance with (and subject to) these Terms;
1.5 “TUPE” means the Transfer of Undertakings (Protection of Employment) Regulations 2006, as amended from time to time;
1.6 “Work” shall mean the services undertaken by a Group Company for, and goods supplied to, the Customer from time to time, and shall include, but not be limited to, the production, printing and supply of material and goods, (together with all ancillary services related thereto), as agreed by the relevant Group Company when accepting an Order pursuant to these Terms.
Where the words include(s), including or in particular are used in this Agreement, they are deemed to have the words without limitation following them. Where the context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them.
2. ORDERS, ACCEPTANCE OF ESTIMATES AND CUSTOMER OBLIGATIONS
2.1 If a Customer wishes any Group Company to undertake work, it will issue a suitable specification to the Group Company. In return, the Group Company, if it wishes to undertake such work and it shall be under no obligation to do so, shall issue an estimate in such form as it sees fit. Estimates given by a Group Company shall be deemed to be withdrawn unless that Group Company receives notice of Customer’s acceptance in writing within 30 days from the date the estimate was provided.
2.2 Estimates provided by any Group Company shall constitute invitations to the Customer to tender on these Terms. If the Customer wishes to engage the Group Company to undertake Work, it shall issue an Order to the relevant Group Company in the format required by that Group Company.
2.3 Each Order from the Customer shall be deemed to be an offer by the Customer to purchase Work from the relevant Group Company receiving the Order subject to these Terms. An Order may be accepted by the relevant Group Company either expressly by it giving notice of acceptance by way of an Order acknowledgement (which may be provided in hard copy or electronic format), or impliedly by fulfilling the Order.
2.4 No terms or conditions endorsed upon, delivered with or contained in the Customer’s Order, specification or any other document shall form part of the Contract and the Customer hereby irrevocably waives in advance any right which it otherwise might have to rely on such terms and conditions.
2.5 Orders are irrevocable by the Customer once they have been sent to a Group Company and are a formal binding offer by the Customer capable of acceptance by the relevant Group Company (or any other Group Company the relevant Group Company may pass it to in its sole discretion) at its sole discretion. If the Group Company rejects an Order, it shall notify the Customer of such rejection in writing within five (5) working days of receipt of that Order. No member of the Group will have any liability to the Customer of any kind arising out of or in relation to any rejection of any Order.
2.6 To the extent that the Customer wishes to change any Work, Order or Contract, it may only do so by written agreement signed with the relevant Group Company, which may be subject to amendment of the relevant charges related thereto, as notified by the relevant Group Company when (or before) agreeing to any such changes.
2.7 The Customer shall:
2.7.1 co-operate with the Group in all matters relating to the Work and the terms of any Contract and shall appoint a key contact in relation to the Work who shall have the authority contractually to bind the Customer on any matters relating to the Work. The Group shall be entitled to rely on any statements and decisions made, or information provided, by the Customer’s key contact notified to the Group in accordance with the preceding sentence, without any requirement to query or verify the same; and
2.7.2 provide, in a timely manner, such Customer material, content, paper, inserts, onserts, envelopes, promotional items and other items (“Materials”) and information as the Group may reasonably require, and ensure that it is accurate in all material respects at all times and does not contain anything defamatory, illegal, discriminatory or offensive.
2.8 If a Group Company’s performance of its obligations under a Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants, affiliates, representatives, employees or any other third party within the Customer’s reasonable control, the Group Company shall not be liable for any Losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay and time for performance of the Work shall be deemed extended accordingly to reflect the relevant impact on timing caused by such delay.
2.9 In such circumstances referred to in clause 2.8 above, the Customer shall also be liable to pay to the relevant Group Company, on demand, all Losses sustained or incurred by the Group Company that directly arise from such prevention or delay, including but not limited to the cost to the Group Company of having to pay any of its personnel or contractors notwithstanding the delay occasioned as mentioned in clause 2.8 above, subject to the relevant Group Company confirming such Losses to the Customer in writing.
2.10 To the extent that a Customer requests a Group Company to carry out Work and the Group Company does so without any formal specification, estimate or Order being entered into or finalised, these Terms shall nevertheless govern all such Work, notwithstanding that any of the foregoing documentation may have been omitted.
3. COST VARIATION
Estimates are based on the relevant Group Company’s costs of production including costs relating to any necessary outsourcing of Work together with any exchange rates which may affect those production costs, both current at the date of any particular estimate. Any such estimates are subject to amendment by a Group Company at a Group Company’s sole discretion on or at any time after acceptance to meet any rise [or fall] in such costs. Additional charges may be made to cover any extra work involved where copy supplied is not clear or legible, all of which will be charged at rates agreed with the Customer or, if no such agreement is forthcoming within seven (7) calendar days of the Group Company commencing discussions regarding such rates, at the Group Company’s then current rates.
4. VALUE ADDED TAX
Where applicable, Value Added Tax or any other similar taxes, charges, duties or levies will be charged and will be payable by the Customer, regardless of whether or not they were included in an estimate or invoice.
5. PRELIMINARY WORK
Preliminary Work carried out at the Customer’s request whether experimentally or otherwise will be subject to an additional charge at rates agreed with the Customer or, if no such agreement is forthcoming within seven (7) calendar days of the Group Company commencing discussions regarding such rates, at the Group Company’s then current rates. The relevant Group Company, acting reasonably, shall determine what is or is not Preliminary Work within the scope of this clause 5 of these Terms.
6. PROOFS AND ELECTRONIC FILES
6.1 Author’s and Customer’s corrections, including alterations in style, and the cost of additional proofs necessitated by such corrections (including any alterations or corrections arising where style, type or layout has been left to the discretion and judgment of the Group Company) will incur an additional charge, unless specifically agreed to be included in a relevant Contract, at rates agreed with the Customer or, if no such agreement is forthcoming within seven (7) calendar days of the Group Company commencing discussions regarding such rates, at the Group Company’s then current rates.
6.2 Proofs of all work may be submitted for Customer’s and/or author’s approval, and in that event no responsibility will be accepted for any errors in them not corrected by the author or Customer as the case may be. Each Group Company accepts no responsibility for any breach of confidentiality, loss of reputation, loss of data or information, financial or any other Losses howsoever arising, related to carrying out the Customer’s instruction to transmit proofs or other material relating to the Work to the Customer or the author via any electronic means including, but not limited to, E-mail or similar medium or facsimile transmission.
6.3 The Customer undertakes to ensure that it retains original copies of all electronic files (including any text, illustration or other matter supplied to a Group Company in digitised form, whether on a disk, through a modem, by ISDN, broadband or any other medium or communication method or link) and no Group Company shall be responsible in any way for any loss of or damage or corruption to any electronic files, other than as a result of the wilful default of that Group Company.
6.4 Each Group Company shall be entitled to rely on the Customer having checked the accuracy of supplied input from an electronic file provided by or on behalf of the Customer and shall have no responsibility for the same or any liability in the event it is inaccurate.
6.5 In the event that any electronic file provided by or on behalf of the Customer in relation to Work is not, in a Group Company’s opinion, suitable for outputting on equipment normally adequate for such purposes, without adjustment or other corrective action, the Group Company may make a charge in relation to any additional cost of Work involved, at rates agreed with the Customer or, if no such agreement is forthcoming within seven (7) calendar days of the Group Company commencing discussions regarding such rates, at the Group Company’s then current rates.
6.6 If colour proofs are required, the Customer irrevocably acknowledges and accepts that, due to a number of reasons (including differences in equipment, paper, inks and other conditions between colour-proofing and production runs), a reasonable variation in colour, as determined by the relevant Group Company, between colour proofs and the completed results of the Work is acceptable and will not give rise to any liability for any Group Company or in any way entitle them to reject the same or withhold payments of any kind.
7. DELIVERY AND PAYMENT
7.1 In the absence of the express written agreement of a Group Company to the contrary and in consideration of a Group Company entering into any Contract with the Customer, such Customer will at all times be primarily liable for all sums due to a Group Company in respect of such Contract irrespective of whether or not such Customer is acting as principal or as agent and whether or not the Customer is due to receive payment in respect of the same from any third party. Any failure by any such third party to pay the Customer will not delay or otherwise reduce or inhibit the Customer’s obligations to make prompt payment under any Contract.
7.2 Due date for payment of Work shall be seven (7) calendar days from the date of any invoice issued by a Group Company.
7.3 If payment is not made on the due date a Group Company, without prejudice to its other rights hereunder, shall be entitled to charge, in addition to any monies due hereunder, interest on the overdue outstanding amount at the rate of 4% above the base rate of National Westminster Bank PLC from time to time in force from the date the monies first became due until the outstanding amount is paid, whether before or after judgment.
7.4 Risk in the Work shall pass to Customer on either (i) delivery to the Customer or (ii) on notification to the Customer that the Work has been completed and is available for collection, as agreed in writing between the relevant Group Company and the Customer.
7.5 Should expedited delivery be agreed and require overtime or other additional costs or should the Customer request delivery to be made to an address other than that originally agreed in the relevant Contract, an extra charge may be made at rates agreed with the Customer or, if no such agreement is forthcoming within seven (7) calendar days of the Group Company commencing discussions regarding such rates, at the Group Company’s then current rates.
7.6 Should Work be suspended at the request of, or delayed through any default of the Customer for a period of 30 days or more a Group Company shall be entitled to payment for the Work already carried out and materials specially ordered along with any other costs or expenses that the Group Company cannot mitigate through commercially reasonable efforts, and the Group Company may terminate the Contract in whole or in part on giving to the Customer 14 days’ prior notice in writing.
7.7 Each Group Company reserves the right to issue invoices to the Customer for Work completed pursuant to a Contract and the Customer acknowledges that such invoices shall become due for payment on the terms herein contained.
7.8 Title in any Work shall remain with the relevant Group Company until such time as the Customer has paid all amounts due and payable to all members of the Group. The Customer shall ensure that all Work is stored separately and is easily identifiable as being the property of the relevant Group Company until title in such Work passes to the Customer under this clause 7.8.
7.9 In the event that the Customer sells any Work prior to title transferring to it pursuant to clause 7.8, the Customer undertakes to hold the proceeds from such sale on trust for the relevant Group Company entitled to receive the same in a separate bank account and to transfer the same to the relevant Group Company to whom payment remains outstanding, until such time as all amounts have been paid and title would have otherwise transferred hereunder.
7.10 At any time when title has not transferred pursuant to clause 7.8 above and monies are owed to any Group Company by the Customer, such Group Company or their representatives shall be entitled to enter onto the Customer’s premises or any other premises at which Work may be stored for the purposes of removing the same and the Customer shall ensure that such Group Company and their representatives at all times have this right.
7.11 Time for payment is of the essence of each and every Contract. In the event of any failure by the Customer to make payments when due, in addition to the Group’s other rights under these Terms and any Contract, the Customer shall pay to each relevant Group Company on an indemnity basis all costs incurred by such Group Company (including legal advisor fees) in effecting recovery of such sums from the Customer.
7.12 All sums payable under a Contract shall be paid by the Customer in pounds sterling (GBP£) without any form of deduction, withholding or set off of any kind. The Customer’s common law right of set off is hereby expressly excluded.
7.13 Without limiting the foregoing, in the event of any failure by the Customer to make payment when due to any Group Company, all sums which may be payable, now or in the future, under any Contract shall immediately become due and payable on receipt by the Customer of a demand from any Group Company notifying it that all sums are now due and payable (regardless of whether or not the relevant Group Company identifies the precise sums payable in its notice). Such sums will be payable as a debt on an indemnity basis and any Group Company shall be entitled to recover the same on that basis on behalf of the other Group Companies.
7.14 Without limiting any other right of any Group Company hereunder or at law or in equity, in the event that the Customer fails to pay any amount when due to any Group Company, that Group Company and any other Group Company engaged in Work for the Customer shall be entitled to suspend Work on provision of 24 hours’ prior notice to the Customer. Such suspension shall continue until such time as all amounts due to the Group as a whole have been properly paid by the Customer.
8. VARIATION IN QUANTITIES AND DELIVERY TIMES
8.1 The relevant Group Company will endeavour to deliver the correct quantity ordered at the time agreed but the Customer irrevocably accepts, acknowledges and agrees that margins of plus or minus 5% of the number of units of Work to be delivered under a Contract in one colour only and plus or minus 10% of the number of units of Work to be delivered under a Contract for other Work are allowed for overs or shortages, the same to be charged or deducted.
8.2 In such circumstances of over or under delivery by the margins mentioned in clause 8.1 above, there will be no breach of the relevant Contract, no liability of any kind for the Group Company and the Group Company shall be entitled to amend its charges accordingly, which the Customer undertakes to pay in accordance with the Contract.
9.1 Claims arising from damage, delay or partial loss of Work in transit must be made in writing, providing full details of the relevant claim, to the relevant Group Company and the carrier so as to reach them within 3 days of delivery and any claims for non-delivery must be notified in writing to the relevant Group Company, providing full details of the relevant claim, within 7 days of despatch of Work.
9.2 The Customer shall inspect the Work forthwith on delivery and any claim against a Group Company by reason of any defect in the Work shall be made in writing, providing full details of the claim, within a reasonable time thereafter not being more than 7 days from the date of delivery of such Work.
9.3 All other claims must be made to a Group Company within 10 days of delivery.
9.4 No Group Company shall be liable for any claims mentioned above in this clause 9 to the extent that the Customer fails to comply with the requirements set out therein, unless the Customer can prove to the relevant Group Company’s reasonable satisfaction that it was not possible for the Customer to comply with the above timescales and the Customer had provided all relevant details of any claim as soon as possible thereafter.
9.5 To the extent that any claim is disputed, no Group Company shall have any liability in respect of the same to the extent that the Customer fails to issue legal proceedings in respect thereof before the first anniversary of the date of delivery or non-delivery of the relevant Work giving rise to the claim.
10.1 The Customer’s exclusive remedy for damaged or defective Work, (howsoever caused other than by or on behalf of the Customer for which no Group Company will have any liability of any kind, and including negligence) shall, at the relevant Group Company’s election, be limited either to the repair, reperformance or replacement of such Work at that Group Company’s cost.
10.2 Other than as provided in clause 10.1 and 10.3, a Group Company shall not be liable for loss or damage caused arising directly or indirectly in connection with any Contract, the Work or otherwise. Without limiting the generality of the above, a Group Company expressly excludes liability for consequential loss, third party claims occasioned by delay (howsoever arising) in completing the Work, and for any loss to the Customer from delay in delivery of the Work (howsoever arising).
10.3 Notwithstanding the provisions of this clause 10 or anything else contained in a Contract, in no event shall a Group Company’s liability exceed the value of the amount of charges payable to a Group Company by the Customer with respect to the particular Work which is the subject of the claim, provided however that nothing contained in these conditions shall have effect so as to exclude or restrict a Group Company’s liability for death or personal injury resulting from its negligence.
11. STANDING MATTER AND INTELLECTUAL PROPERTY
11.1 Materials used by a Group Company in the course of producing the Work shall remain a Group Company’s exclusive property. Notwithstanding the foregoing, such items when supplied by the Customer shall belong to the Customer.
11.2 No Group Company shall be required to download any digital data from their equipment or supply the same to the Customer on disk or any other medium or by any communication link or other data transfer unless expressly agreed by that Group Company in the applicable Contract. No Group Company shall have any obligation to preserve, maintain or store any electronic records or digital data received from the Customer or on behalf of the Customer, nor shall it have any liability in respect of any loss or damage to the same. It shall be the Customer’s sole responsibility and liability to ensure it retains adequate copies of all such records and data.
11.3 All intellectual property created in the course of the Work shall belong to the relevant Group Company carrying out the Work. Any pre-existing intellectual property used in carrying out the Work shall belong to the party providing the same for the purposes of carrying out the Work.
12. CUSTOMER’S PROPERTY
12.1 Customer’s property and all property supplied to a Group Company by or on behalf of the Customer will be held, worked on, and carried at the Customer’s sole risk and no Group Company shall be liable for any loss or damage to such property howsoever caused and the Customer should act and insure accordingly, including, but not limited to, ensuring the Customer retains adequate copies and back-ups of all digital data and electronic records provided to any Group Company.
12.2 A Group Company may make a reasonable charge for storage of any Customer’s property (including, but not limited to, any electronic records and digital data) left with a Group Company before receipt of the Work and/or after notification to the Customer of completion of the Work, at rates agreed with the Customer or, if no such agreement is forthcoming within seven (7) calendar days of the Group Company commencing discussions regarding such rates, at the Group Company’s then current rates.
13. MATERIALS AND CONTENT SUPPLIED BY THE CUSTOMER
13.1 A Group Company may reject any paper or other Materials supplied or specified by the Customer which appear to a Group Company to be unsuitable. An additional charge may be made if such Materials are found to be unsuitable during production at rates agreed with the Customer or, if no such agreement is forthcoming within seven (7) calendar days of the Group Company commencing discussions regarding such rates, at the Group Company’s then current rates.
13.2 Where such Materials are supplied or specified by the Customer, responsibility for defective Work resulting from or arising in connection with such Materials will not be accepted by a Group Company (and they shall have no liability in respect of the same) unless this is due to failure to use reasonable skill and care on the part of the relevant Group Company.
13.3 The Customer shall at all times ensure that quantities of Materials supplied by the Customer (where applicable) shall be adequate to cover normal trialling, spoilage and wastage, as determined by the relevant Group Company carrying out the Work.
The Customer expressly acknowledges, accepts and agrees that paper and Materials are not counted or checked when received unless this is made the subject of an express written requirement carrying an additional charge for the service and included in a Contract. Unless included in a Contract, no Group Company shall have any liability in any way in respect of or in relation to the same.
The Customer expressly acknowledges, accepts an agrees that no Group Company shall be obliged to provide storage accommodation for Materials or other items except by express written agreement in a Contract. When such facilities are provided a charge may be made, at rates agreed with the Customer or, if no such agreement is forthcoming within seven (7) calendar days of the Group Company commencing discussions regarding such rates, at the Group Company’s then current rates.
16. TERMINATION OF CONTRACT
16.1 In the event that in any Group Company’s opinion, the Customer’s financial position becomes unsatisfactory, or if the Customer ceases to pay its debts in the ordinary course of business or cannot pay its debts as they become due or being a company is deemed to be unable to pay its debts or has a winding-up petition against it or being an individual commits an act of bankruptcy or has a bankruptcy petition filed against him or the Customer is in breach of any of its obligations arising under the Contract (or where any of the above events appear to any Group Company to be likely to occur ), that Group Company shall, without prejudice to its other remedies, have the right to terminate any part or the whole of any Contract it may have with the Customer forthwith or not to proceed further with the Contract or any other Work for the Customer and shall be entitled to charge for Work already carried out (whether completed or not) and materials purchased for the Customer and any other costs or expenses it cannot, using commercially reasonable endeavours, mitigate in the circumstances. Such charge will be immediately payable to the Group Company as a debt on an indemnity basis.
16.2 Without limiting the foregoing, in the event that any Contract with the Customer is terminated pursuant to clause 16.1, every other Group Company which has an ongoing Contract with the Customer shall be entitled to terminate that Contract in whole or in part forthwith on provision of written notice to the Customer to that effect.
16.3 If any Contract is terminated prior to the completion of any Work, the relevant Group Company carrying out such Work may either:
16.3.1 complete any such unfinished Work and the Customer shall be required to pay the full amount for such Work accordingly; or
16.3.2 stop performing the Work with immediate effect and invoice the Customer for a pro-rated amount based on the proportion of the Work that has been carried out up to and including the termination date along with the relevant amount of costs and expenses incurred by the Group Company which are not included within the fees invoiced under this clause 16.3.2 and which the Group Company cannot reasonably avoid (including, but not limited to, materials purchased for the Customer and any other costs or expenses it cannot, using commercially reasonable endeavours, mitigate in the circumstances).
The Customer shall pay all amounts due under this clause 16.3 immediately on demand.
16.4 Upon termination of any or all Contracts, all outstanding invoices relating thereto will immediately become due and payable by the Customer to the Group and the Customer shall promptly pay the same within seven (7) calendar days of the date of termination.
Without prejudice to other remedies whether under these Terms or otherwise, a Group Company shall, in respect of all debts due from the Customer whether under a Contract or otherwise and whether or not due for payment, have a lien on all goods and property in its possession belonging to the Customer (whether worked on or not) and whether or not in the possession of a Group Company under a Contract and shall be entitled on the expiration of 14 days’ notice to dispose of such goods or property as it thinks fit (including as to manner and price of disposal) and to apply any proceeds towards such debts. No Group Company shall be liable in any way to the Customer for exercising its rights hereunder, whether in relation to any goods or property disposed of or otherwise.
18.1 Without limiting any other remedy of a Group Company, if payment is overdue in whole or in part a Group Company may recover or resell the Work and for that purpose a Group Company and persons authorised by it are irrevocably licensed to enter the Customer’s premises or any other premises where a Group Company believes Work to be.
18.2 Notwithstanding the provisions of these Terms, a Group Company shall be entitled, at its election and at any time, to transfer title in the Work to the Customer as it sees fit and, without prejudice to any other remedies a Group Company may have, sue for the full price thereof which shall be payable by the Customer as a debt on an indemnity basis.
19. ILLEGAL MATTER
19.1 A Group Company shall not be required to print any matter which in its sole opinion is or may be of an illegal, discriminatory, offensive or defamatory nature or an infringement of any third party rights of any kind, including copyright, patent, design right and trademark rights.
19.2 The Customer shall fully indemnify and hold harmless a Group Company from and against all Losses arising out of any actions, proceedings, claims or demands whatsoever suffered or incurred by a Group Company by reason of the Work containing any matter of an illegal, defamatory, discriminatory or offensive nature or being an infringement of any third party rights of any kind, including copyright, patent, design right and trademark rights. Each Group Company shall be free to settle any such action, proceeding, claim or demand as it deems fit in its sole discretion and any settlement costs shall be deemed to be Losses within the scope of the indemnity provided under this clause 19.2.
20. PERIODICAL PUBLICATION
Subject to each Group Company’s rights to terminate any Contract in accordance with the other provisions of these Terms, a Contract for the printing of periodical publications, including but not limited to magazines and supplements, may be terminated at any time by either party giving to the other written notice as follows:
Frequency of Publication Minimum Length of Notice
Daily, Weekly, Fortnightly, Monthly 13 weeks
Two Monthly, Quarterly or other 26 weeks
21. FORCE MAJEURE
Each Group Company will use reasonable endeavours to carry out any relevant Contract it enters into but its due performance is subject to postponement or cancellation by a Group Company as it may find necessary as a result of inability to secure labour, materials or supplies or as a result of any act of God, war, strike, lockout, or other industrial dispute, fire, flood drought, legislation or other cause (whether of the foregoing class or not) beyond that Group Company’s control. Any such postponement or cancellation shall be without liability to the Customer or any third party but shall not excuse or delay any payment due from the Customer, which shall be payable in any event if already due to the Group Company.
22. CONSTRUCTION OF CONTRACT
Neither any Contract nor these Terms may be modified without the written agreement of a duly authorised representative of the relevant Group Company or the Group, respectively. These Terms and all other express terms of a Contract shall constitute the entire understanding and agreement between a Group Company and the Customer, they supersede any previous arrangement, understanding or agreement between them relating to the subject matter hereof and no representations or warranties express or implied, statutory or otherwise made by or on behalf of a Group Company or the Customer to the other party, in connection with or arising out of the Work and which are not contained in these Terms or such other express terms of a Contract shall give rise to any liability on the part of the maker thereof. The Customer acknowledges, accepts and agrees that they have not been induced to enter into any Contract in reliance upon any statement, representation, agreement or understanding other than those set out in the relevant Contract.
The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by any Group Company or its agents and any other confidential information concerning any Group Company’s business or its prices or products which the Customer may obtain and the Customer shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Customer’s obligations to any Group Company and shall ensure that such employees, agents or sub-contractors are subject to like obligations of confidentiality as bind the Customer.
These conditions and all other express terms of the Contract shall be governed and construed in accordance with the laws ofEnglandandWalesand the Customer hereby irrevocably submits to the exclusive jurisdiction of the English Courts.
Any Group Company may assign any Contract or any part of it to any other Group Company on notification of such assignment to the Customer. Any Group Company may assign any or all of its rights to receive payment from the Customer (and any relevant ancillary rights) to any third party, as it sees fit, on notification of such assignment to the Customer. The Customer may not assign any Contract or any part of it to any third party without the relevant Group Company’s prior written consent.
26.1 The Parties accept and agree that TUPE is unlikely to apply in respect of the arrangements contemplated by any Contract.
26.2 Notwithstanding the above, in the event that TUPE is deemed to apply or any third party (including but not limited to any of the Customer’s personnel) claims that TUPE applies, the Customer shall indemnify every Group Company in full in relation to any Losses incurred by any Group Company as a result of the transfer or deemed transfer (or claimed transfer of claimed deemed transfer) of any Customer personnel or other third party to a Group Company pursuant to the operation of TUPE and/or the termination or deemed termination by a Group Company or pursuant to TUPE of any of the Customer personnel or other third party.
26.3 For the avoidance of doubt, if any Customer personnel or other third party is deemed to have transferred to a Group Company pursuant to TUPE or otherwise, the relevant Group Company to whom they are deemed to have transferred shall be entitled to terminate their employment and the Customer shall fully indemnify every Group Company in relation to all Losses resulting from such termination.
27.1 No forbearance, delay or indulgence by either party in enforcing the provisions of any Contract shall prejudice or restrict the rights of that party nor shall any waiver of its rights operate as a waiver of any subsequent breach and no right, power or remedy herein conferred upon or reserved for either party is exclusive of any other right, power or remedy available to that party and each such right, power or remedy shall be cumulative.
27.2 If any provision in a Contract shall in whole or in part be held to any extent to be illegal or unenforceable under any enactment or rule of law then that provision or part shall to that extent be deemed not to form part of that Contract and the enforceability of the remainder of that Contract shall not be affected.
27.3 Each Group Company and the Customer are each independent contractors with respect to each other and nothing in any Contract shall create any association, partnership, joint venture or agency relationship between them.
27.4 The Customer’s payment, confidentiality and indemnity obligations under these Terms and the limitations set out in these Terms in relation to the scope of each Group Company’s obligations and liabilities shall survive the termination of any Contract for any reason.
27.5 Any notice to be given under these Terms or a Contract must be given in writing and, for these purposes, email shall constitute writing such that notices given by email by one party to a correct email address for the other party (as notified by that party from time to time) shall be effective on the first business day after receipt of the same.
Unless expressly agreed otherwise in writing by the Walstead Group of Companies, signed by a Duly Authorised Representative thereof, these are the ONLY terms and conditions on which the Walstead Group of Companies is prepared to contract with you (the “Supplier”) in relation to the sale of goods and supply of services by the Supplier.
The Walstead Group of Companies consists of: Wyndeham Press Group Limited (registered company no. 00933418); Wyndeham Heron Limited (registered company no. 02586277); Wyndeham Impact Limited (registered company no. 02249876); Wyndeham Apple Limited (registered no. 06941721); Wyndeham Grange Limited (registered company no. 00553857); Rhapsody Limited (registered company no. 01280705); Wyndeham Gait Limited (registered company number 00326819); Wyndeham Print Direct Limited (registered company number 03441143); Wyndeham Plymouth Limited (registered company no. 00200363); Wyndeham Peterborough Limited (registered company no. 02261988); Wyndeham Roche Limited (registered company number 00720976); Wyndeham Web Limited (registered company number 0317099); Southernprint Limited (registered company no. 01085192); Walstead Investments Limited (registered company no. 06750402); and any other entity which from time to time is a group company or affiliated company of any of the above entities (including any subsidiary or holding company of that entity or any subsidiary of any direct or indirect holding company of that entity),each being a “Group Company” and collectively being referred to as the “Group” for the purposes of these terms and conditions, as updated from time to time by the Group (the “Terms”).
In these Terms (unless context requires otherwise):
1.1 “Contract” shall mean an Order placed by a Group Company with the Supplier for the supply of goods and/or services together with these Terms.
1.2 “Deliverables” shall mean all documents, products and materials developed by the Supplier or its agents, contractors and employees as part of or in relation to the Services in any form or media.
1.3 “Duly Authorised Representative” shall mean the Group Commercial Director, the Group Procurement Manager, the Group Financial Controllers and the Group Financial Director.
1.4 “Goods” shall mean the goods (or any part of them) set out in the Order.
1.5 “Group Materials” shall mean all materials, equipment, tools, drawings, specifications, computer programmes, information and data, on whatever media, supplied by any Group Company to the Supplier.
1.6 “Losses” shall mean all costs (including legal costs and costs of enforcement), expenses, liabilities (including any tax liability), injuries, direct, indirect or consequential loss (all three of which terms include pure economic loss, loss of profits, loss of business, depletion of goodwill and loss of opportunity to deploy resources elsewhere), damages, claims, demands, proceedings and judgments.
1.7 “Order” means an order placed by any Group Company for Goods or Services.
1.8 “Services” shall mean the services, including without limitation any Deliverables, to be provided by the Supplier under the Contract as set out in the Order.
1.9 “TUPE” shall mean the Transfer of Undertakings (Protection of Employment) Regulations 2006, as amended from time to time.
- CONSTRUCTION OF CONTRACT
2.1 Where an Order is placed by a Group Company that Order together with these Terms (together a Contract) will constitute a separate binding and enforceable contract between the Supplier and the relevant Group Company placing the Order. These Terms are automatically deemed incorporated into each and every Contract, subject to any permitted variation provided for under these Terms, and shall accordingly govern the same. Where there is any manifest inconsistency between the provisions of these Terms and any Order, the provisions of the Order will apply.
2.2 The terms of each Contract shall apply as between the parties in respect of the matters described in the Order to the exclusion of all other terms (including any terms and conditions that the Supplier purports to apply). Any attempt by you (or on your behalf) as the Supplier to impose any other terms or conditions to the trading relationship with any Group Company is hereby explicitly and expressly deemed automatically rejected in advance (and any such terms and conditions are likewise deemed rejected automatically in advance) and will be (and is) wholly ineffective and non-binding upon each and every Group Company. No terms other than these Terms are or will be acceptable to the Group, save as expressly agreed and physically signed in writing by a Duly Authorised Representative agreeing to a variation to these Terms in accordance with these Terms.
2.3 These Terms are automatically deemed accepted by you as the Supplier upon the earlier of (i) the Supplier accepting a Group Company’s Order; or (ii) the Supplier supplying any Goods to or commencing the provision of any Services for any Group Company. Save as expressly agreed and physically signed in writing by a Duly Authorised Representative, these Terms will apply to your entire relationship and all dealings with any Group Company. There is no need for any Group Company to issue you with duplicate copies of these Terms when each Contract is entered into and there is no obligation on any Group Company to do so. Failure to provide a copy of these Terms with each Contract shall not in any way prejudice the fact that these Terms shall govern each Contract as provided for herein.
3.1 The time of delivery and performance is of the essence of the Contract and delivery shall be strictly in accordance with the Order. The relevant Group Company may reject any Goods or Services not delivered or provided on or before the delivery date specified in the Order without prejudice to its rights against the Supplier, whether for breach of contract or otherwise.
3.2 Unless otherwise agreed delivery shall be made at the Delivery Address specified in the Order or if none is specified, at the relevant Group Company’s premises and all packing and transport costs shall be for the account of the Supplier.
3.3. Title in the Goods and any Deliverables shall pass to the relevant Group Company when payment is made, in whole or in part or upon delivery, whichever first occurs.
3.4. Risk in the Goods and any Deliverables shall pass to the relevant Group Company upon delivery.
3.5 Any partial delivery or performance shall be deemed a failure by the Supplier to deliver or perform in accordance with the Contract unless expressly agreed in advance and in writing with the relevant Group Company.
- PRICE AND PAYMENT
4.1 Unless otherwise agreed the price for the Goods and Services supplied under any Contract shall be that specified on the relevant Order issued by the relevant Group Company or if not so specified shall not be higher than the lower of the last price for the same provided to the relevant Group Company and the Supplier’s then-current standard pricing for the same based on equivalent quality and quantity standards.
4.2 The price specified, in the Order or otherwise determined as set out above or agreed in writing, is a fixed price and the Supplier shall not be entitled to increase the price for any reason whatsoever.
4.3 Payment shall be due 90 days following the end of the relevant month within which a valid invoice in respect of the Goods or Services is received.
- WARRANTY AND QUALITY
5.1 The Supplier warrants, represents and undertakes that:
(a) any Goods supplied will on delivery be new and unused and free from defects either in material or workmanship and that they will be suitable for any purpose for which they are required and which shall have been made known by the relevant Group Company to the Supplier, of merchantable quality, that they will conform strictly to any specifications, drawings or patterns supplied by the relevant Group Company to the Supplier or in relation to which they were offered for sale, that they comply with relevant EC Directives concerning Health & Safety and UK legislation, including The Provision and Machinery (Safety) Regulations 1992 and the Supply of Machinery (Safety) Regulations 1994, and that they will conform strictly to any sample which may have been submitted by or to the relevant Group Company but without any defect which such sample may have:
(b) it shall perform the Services with all due skill and care and in accordance with the best practice in the field in which the Services are supplied and any officers, agents, employees, personnel or sub-contractors which it uses to provide the Services shall be suitably skilled and experience and shall adhere to the same standards;
(c) the Services, Goods and Deliverables will conform with all descriptions and specifications set out in the Order and will be fit for any purpose expressly or impliedly made known to the Supplier by the relevant Group Company,;
(d) it shall provide all equipment, tools , vehicles and other such items as are required to perform the Contract at its own cost;
(e) it shall obtain and at all times maintain all necessary licences and consents in order to perform the Contract and comply with all applicable laws and regulations when performing the Contract;
(f) it shall observe all health and safety rules and regulations and any other security requirements that apply at any Group Company premises;
(g) it shall hold all Group Materials in safe custody at its own risk, maintain the Group Materials in good condition until returned to the relevant Group Company and not dispose of or use the Group Materials other than in accordance with the Contract or such other written instructions or authorisation provided by the relevant Group Company;
(h) it shall not do or omit to do anything which may cause the Group to lose any licence, authority, consent or permission upon which it relies for the purposes of conducting its business and the Supplier acknowledges that the Group may rely or act on the Services.
5.2 At any time prior to delivery of the Goods to the relevant Group Company, it shall have the right to inspect and test the Goods or Deliverables at all times.
5.3 If the results of such inspection or testing cause the relevant Group Company to be of the opinion that the Goods or Deliverables do not conform or are unlikely to conform with the Order, the Contract or to any specifications and/or patterns supplied or advised by the relevant Group Company to the Supplier, the relevant Group Company shall inform the Supplier and the Supplier shall immediately take such action as is necessary to ensure conformity and in addition the relevant Group Company shall have the right to require and witness further testing and inspection.
5.4 Notwithstanding any such inspection or testing, the Supplier shall remain fully responsible for all aspects of the quality of the Goods or Deliverables and any such inspection or testing shall not diminish or otherwise affect the Supplier’s obligations under any Contract.
5.5 If any of the Goods or Deliverables fail to comply with the provisions set out in this clause 5 the relevant Group Company shall be entitled to avail itself of any one or more remedies listed in clause 12.
6.1 The Supplier shall keep the Group indemnified at all times and in full against all Losses awarded against or incurred or paid by the Group as a result of or in connection with:
(a) any claim made against any Group Company by a third party for death, personal injury or damage to property arising out of, or in connection with, defects in Goods or Deliverables, to the extent that the defect in the Goods or Deliverables is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors;
(b) any claim made against any Group Company by a third party arising out of, or in connection with, the supply of the Goods or Deliverables or Services, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Supplier, its employees, agents or subcontractors; or
(c) any claim made against any Group Company for actual or alleged infringement of a third party’s intellectual property rights or other rights arising out of, or in connection with, the manufacture, supply or use of the Goods or Deliverables, or receipt, use or supply of the Services.
6.2 For the duration of the Contract and for a period of six years thereafter, the Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance, product liability insurance and public liability insurance to cover the liabilities that may arise under or in connection with each Contract and shall, on the Group’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each insurance.
6.3 This clause 6 shall survive termination of the Contract
- GROUP’S GOODS AND MATERIALS
7.1 All Group Materials supplied by or on behalf of the relevant Group Company, are and shall remain the property of the relevant Group Company, and shall not be copied, or used in any way whatsoever except in connection with supply of Goods, Deliverables and Services pursuant to this Contract. If any are damaged or destroyed while in the Supplier’s possession or control the Supplier shall on demand pay to the relevant Group Company the cost to the relevant Group Company of repairing or (at the relevant Group Company’s option) replacing them.
7.2 The Supplier must check all Group Materials supplied to it by or on behalf of the relevant Group Company and notify the relevant Group Company in writing of any defects or discrepancies forthwith.
7.3 Title to and all rights (including copyright and any other intellectual property rights) in any additions to Group Materials supplied by or on behalf of the relevant Group Company shall, in so far as the relevant Group Company shall not be entitled thereto by operation of law, forthwith vest in and are hereby assigned to the relevant Group Company.
7.4 The Supplier shall not be entitled to any lien on any such materials, documents, data and computer programmes for sums due for work done under the Contract or otherwise.
7.5 The relevant Group Company shall be entitled to enter the Supplier’s premises and remove all Goods, Deliverables, materials, documents, data and computer programmes to which the relevant Group Company is entitled.
7.6 The Supplier will redeliver such Group Materials including any copies, extracts and abstracts thereof to the relevant Group Company in good and serviceable condition.
7.7 This clause 7 shall survive termination of the Contract.
- INTELLECTUAL PROPERTY
8.1 In respect of the Goods and any goods that are transferred to any Group Company as part of the Services under a Contract, including without limitation the Deliverables or any part of them, the Supplier warrants, represents and undertakes that it has and will have full clear and unencumbered title to all such items and that at the date of delivery of such items to the relevant Group Company, it will have full unrestricted rights to sell and transfer all such items to the relevant Group Company.
8.2 The Supplier hereby assigns to the relevant Group Company, with full title guarantee and free from all third party rights, all intellectual property rights in the products of the Services, including, but not limited to the Deliverables.
8.3 The Supplier shall obtain waivers of all moral rights in the products of the Services, including for the avoidance of doubt the Deliverables, to which any individual is now or may be at any future time entitled under Chapter IV of Part I of the Copyright Designs and Patents Act 1988 or any similar provisions of law in any jurisdiction.
8.4 The Supplier shall, promptly at the relevant Group Company’s request, do (or procure to be done) all such further acts and things and execute all such other documentation as the relevant Group Company may from time to time require for the purpose of securing for the relevant Group Company the full benefit of any Contract, including all right, title and interest in and to the intellectual property rights assigned to the relevant Group Company in accordance with clause 8.2.
8.5 All Group Materials are the exclusive property of the relevant Group Company.
8.6 This clause 8 shall survive termination of the Contract.
Any notification hereunder shall be in writing and where given by the relevant Group Company by first class registered or recorded delivery to the Supplier’s address given in the Order, shall be deemed to have been received by the Supplier at the expiration of two days from posting in the case of inland and five days from posting in the case of overseas letters.
- CANCELLATION, SUSPENSION AND TERMINATION
10.1 The relevant Group Company may by notice in writing to the Supplier cancel or vary any Contract formed pursuant hereto and or suspend or postpone the manufacture and delivery of the Goods or any part thereof and all costs necessarily incurred by the Supplier as a result thereof which cannot be mitigated by the Supplier using its best endeavours to do so shall be borne by the relevant Group Company. The date of delivery shall, if necessary, be extended to such later date(s) as shall be reasonable having regard to the period of such suspension or postponement or nature of the variation.
10.2 Without limiting its other rights or remedies, the relevant Group Company may terminate any and all Contracts with immediate effect by giving written notice to the Supplier if:
(a) the Supplier commits a material or persistent breach of a Contract and (if such a breach is remediable) fails to remedy that breach within  days of receipt of notice in writing of the breach;
(b) the Supplier suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(c) the Supplier commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Supplier (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the Supplier with one or more other companies or the solvent reconstruction of the Supplier;
(e) a creditor or encumbrancer of the Supplier attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within seven days;
(f) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Supplier (being a company);
(g) a floating charge holder over the assets of the Supplier (being a company) has become entitled to appoint or has appointed an administrative receiver;
(h) any event occurs, or proceeding is taken, with respect to the Supplier in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in sub-clauses 10.2(b) to clause 10.2(g) (inclusive);
(i) the Supplier suspends or threatens to suspend, or ceases or threatens to cease to carry on, all or a substantial part of its business; or
(j) the Supplier (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
10.3 Without limiting its other rights or remedies, the relevant Group Company may terminate any Contract:
(a) in respect of the supply of Services, by giving the Supplier 14 day’s written notice; and
(b) in respect of the supply of Goods, with immediate effect by giving written notice to the Supplier, in which case the relevant Group Company shall pay the Supplier fair and reasonable compensation for any work in progress on any other Goods at the date of termination but such compensation shall not include loss of anticipated profits or any consequential loss.
10.4 In any of the circumstances in these Terms in which the relevant Group Company may terminate a Contract, where both Goods and Services are supplied, the relevant Group Company may instead terminate part of the Contract in respect of the Goods, or in respect of the Services, and the Contract shall continue in respect of the remaining supply.
- CONSEQUENCES OF TERMINATION
11.1 On termination of any Contract for any reason:
(a) the Supplier shall immediately deliver to the relevant Group Company all Goods that have been paid for but not yet delivered and where Services are terminated, all Deliverables, whether or not then complete, and return all Group Materials. If the Supplier fails to do so, then the relevant Group Company may, without limiting its other rights or remedies enter the Supplier’s premises and take possession of them. Until they have been returned or delivered, the Supplier shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the relevant Contract;
(b) the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of any Contract which existed at or before the date of termination;
(c) clauses which expressly or by implication have effect after their termination shall continue in full force.
12.1 If the Supplier fails to deliver the Goods or Deliverables and/or perform the Services by the applicable date(s) specified in the relevant Order, the relevant Group Company shall, without limiting its other rights or remedies, have one or more of the following rights:
(a) to terminate any or all Contracts with immediate effect by giving written notice to the Supplier;
(b) to refuse to accept any subsequent performance of the Services and/or delivery of the Goods or Deliverables which the Supplier attempts to make;
(c) to recover from the Supplier any costs incurred by the relevant Group Company in excess of what would have been paid to the Supplier in obtaining substitute Goods or Deliverables and/or Services from a third party;
(d) where the relevant Group Company has paid in advance for Services that have not been provided by the Supplier and/or Goods or Deliverables which have not been delivered by the Supplier, to have such sums refunded by the Supplier; and
(e) to claim damages for any additional Losses incurred by the relevant Group Company which are in any way attributable to the Supplier’s failure to meet such dates.
12.2 If the Supplier has delivered Goods or Deliverables that do not comply with the Contract, without limiting its other rights or remedies, the relevant Group Company shall have one or more of the following rights, whether or not it has accepted the Goods or Deliverables:
(a) to reject the Goods or Deliverables (in whole or in part) whether or not title has passed and to return them to the Supplier at the Supplier’s own risk and expense;
(b) to terminate any or all Contracts with immediate effect by giving written notice to the Supplier;
(c) to require the Supplier to repair or replace the rejected Goods or Deliverables, or to provide a full refund of the price of the rejected Goods or applicable Services (if paid);
(d) to refuse to accept any subsequent delivery of the Goods or Deliverables which the Supplier attempts to make;
(e) to recover from the Supplier any expenditure incurred by the relevant Group Company in obtaining substitute goods from a third party in excess of what would have been paid to the Supplier; and
(f) to claim damages for any additional Losses incurred by the relevant Group Company arising from the Supplier’s failure to supply Goods or Deliverables in accordance with the Contract.
12.3 These Terms shall extend to any substituted or remedial Services and/or repaired or replacement Goods or Deliverables supplied by the Supplier and
are in addition to (and do not in any way prejudice) any other rights or remedies any Group Company may have available to it at law, in equity or otherwise.
The Supplier shall keep in strict confidence all technical or commercial information, know-how, specifications, inventions, processes or initiatives which are of a confidential or commercially sensitive nature and have been disclosed to the Supplier by or on behalf of any Group Company or its agents and any other confidential information concerning any Group Company’s business or its prices or products which the Supplier may obtain and the Supplier shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purposes of discharging the Supplier’s obligations to any Group Company and shall ensure that such employees, agents or sub-contractors are subject to the same obligations of confidentiality as bind the Supplier. For the avoidance of doubt, this clause 13 shall survive termination of the Contract.
14.1 The parties to the Contract agree and accept that TUPE is unlikely to apply in respect of the arrangements contemplated by any Contract.
14.2 Notwithstanding the above, in the event that TUPE is deemed to apply or any third party (including but not limited to the Supplier’s personnel) claims that TUPE applies, the Supplier shall indemnify every Group Company in full in relation to any Losses incurred by any Group Company as a result of the transfer or deemed transfer (or claimed transfer) of any of the Supplier’s personnel or other third party to a Group Company pursuant to the operation of TUPE and/or the termination by a Group Company or pursuant to TUPE of any of the Supplier’s personnel or other third party.
14.3 For the avoidance of doubt, if any of the Supplier’s personnel or other third party is deemed to have transferred to a Group Company pursuant to TUPE or otherwise, the relevant Group Company to whom they are deemed to have transferred shall be entitled to terminate their employment and the Supplier shall fully indemnify every Group Company in relation to all Losses resulting from such termination.
15 NO PARTNERSHIP
The Supplier and each Group Company are independent contractors with respect to each other and nothing in any Contract shall create an association, partnership, joint venture or agency relationship between them.
16 ASSIGNMENT & SUB CONTRACTING
The Supplier shall not assign or sub contract or otherwise make over any of its rights without the prior written permission of the Group.
The failure or neglect of any Group Company to enforce at any time any of the provisions of any Contract formed pursuant hereto shall not be construed nor shall be deemed to be a waiver of the any Group Company’s rights under any Contract nor in any way shall such a failure or neglect effect the validity of the whole or any part of any Contract nor prejudice any Group Company’s right to take subsequent action.
If any provision in these Terms (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part provision, to the extent required, shall be deemed not to form part of these Terms, and the validity and enforceability of the other provisions of these Terms shall not be affected.
19 GOVERNING LAW
Each Contract shall be subject to English law and the parties hereby irrevocably submit to the exclusive jurisdiction of the English Courts.
20 OTHER RIGHTS AND REMEDIES
Nothing in these Terms shall prejudice any condition or warranty, express or implied, or any right or remedy to which the Group is entitled in relation to the Goods, Deliverables and Services by virtue of statute, common law or other.
The following terms and conditions govern access to, and use of, this website.
Use of this site constitutes your acceptance of these terms and conditions, which take effect immediately on your first use of the site. Rhapsody (which includes its group companies) reserves the right to change these terms and conditions at any time by posting changes on the site. Your continued use of the site after changes are made constitutes your acceptance of these terms and conditions as modified.
You agree to use this site solely for lawful purposes and in a manner that does not infringe the rights of, or restrict or inhibit the use of this site by, any third party.
This site is provided on an “AS IS” basis and Rhapsody disclaims and excludes all warranties or representations of any kind, express or implied, with respect to this website or its contents (including, without limit, implied warranties of satisfactory quality, fitness for a particular purpose or accuracy) to the extent permitted by applicable law. In no event will Rhapsody be liable for damages, including, without limitation, indirect or consequential damages, or any damages whatsoever arising from use or loss of use, data or profits, whether in contract, tort (including negligence) or otherwise arising out of, or in connection with, use of this site. Rhapsody does not warrant that this site or the server that it sits on are free of viruses or bugs or that the materials contained on this site will be uninterrupted or error free and Rhapsody accepts no liability in this regard. Any material downloaded, or information obtained, from the site is downloaded and used entirely at your own risk and you are responsible for any such use or the consequences of any downloading.
This website is designed to comply with English law. If any of these Terms and Conditions are held to be illegal, invalid or otherwise unenforceable by any court of competent jurisdiction, then to the extent that the terms and conditions are held to be illegal, invalid or unenforceable, such terms shall be deemed deleted from the clause and the remaining provisions shall survive and remain in full force and effect and binding on you.
The terms and conditions are governed by and construed in accordance with the laws of England. You agree that any dispute arising under the terms and conditions or from use of the site shall be exclusively subject to the jurisdiction of the courts of England.
If you do not accept these terms and conditions in full, you are not permitted to access this site and should cease any such use immediately.
The copyright and all other intellectual property in Rhapsody’s site and its contents are owned by, or licensed to the Rhapsody Limited. You are entitled to view Rhapsody’s website, download and use information on the site and print out a single hard copy of any part of the site solely for your own use. Any other use is strictly prohibited without Rhapsody’s prior written consent.
From time to time, Rhapsody Ltd may run competitions. For such events, unless superseded by new, specific terms and conditions, the following general terms and conditions apply.
Who can enter?
Only one entry per person or company as detailed in the competition.
A minor under the age of eighteen must be assisted by his/her legal guardian.
The competition is not open to employees of Rhapsody Ltd and their family members.
How to enter
Complete the online survey or form as detailed in the promotion.
All contact details must be accurately completed.
Incorrect information will automatically disqualify the entrant.
Rhapsody Ltd cannot take any responsibility for lost submissions or any damage, losses or injuries related to the draw or prize.
By entering the competition and supplying your information, you consent to receive relevant promotional material. You can unsubscribe at any time by using the unsubscribe links on email communication or by writing to: Subscribers, Rhapsody Ltd, 109-123 Clifton Street, London EC2A 4LD.
Your data will not be shared with third parties.
Rhapsody Ltd conforms to the Data Protection Act.
The prize will be detailed at each competition.
The prize is not transferable and cannot be exchanged for cash.
The duration of each competition will be detailed in the promotion.
Notification of result
The judges’ decision is final and no correspondence will be entered into.
Winners will be contacted by a Rhapsody Ltd representative to arrange dispatch of the prize.
Winners must be prepared to be photographed and such photograph could possibly be used in future marketing material.
Winners must be prepared for the result to be shared in future marketing material.
A list of winners will be available on request.
In the case of the intervention of any outside act, agent or event which prevents or significantly hinders the Promoter’s ability to proceed with the competition on the dates and in the manner described in these terms and conditions, Rhapsody Ltd may in its absolute discretion cancel the competition and recommence it from the start on the same conditions.
Rhapsody Ltd will not be liable for any misadventure, accident, injury, loss or claim that may occur:
during the draw; whilst undertaking any activity in or connected with their entry into the drawin the participation in any prize;
as a consequence of late, lost or misdirected mail; in relation to failure of an entry to be received by Rhapsody Ltd on account of technical problems or traffic congestion or any other potential issues; arising from or related to any problem or technical malfunction of any computer equipment, software, internet connection, any injury or damage to entrant’s or any other person’s computer software related to or resulting from participation in this promotion;
Rhapsody Ltd assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, entries, and reserves the right to take any action that may be available.
If for any reason this competition is not capable of running as planned, including infection by computer virus, bugs, tampering, unauthorized intervention, fraud, technical failures or any other causes beyond the control of Rhapsody Ltd which corrupt or affect the administration security, fairness, integrity or proper conduct of this competition, Rhapsody Ltd reserves the right in its sole discretion to disqualify any individual who tampers with the entry process, take any action that may be available, and to cancel, terminate, modify or suspend the competition
1. The General ePublish Licence Terms: These are the General ePublish licence terms (the “General Terms”) of Rhapsody. Together with a signed Licence Agreement, these General Terms form a contract (the “Contract”) between the parties for the provision of ePublish as a service to the Client by Rhapsody. The terms of the Licence Agreement take precedence over the terms of these General Terms. Any Special Terms in Part 4 of the Licence Agreement shall take precedence over both these General Terms and the rest of the Licence Agreement.
2. Rhapsody Obligations
2.1. Rhapsody shall make ePublish available as a service to the Client for the Term subject to the terms of the Contract.
2.2. Rhapsody shall use its reasonable endeavours to support and maintain ePublish during the Term.
2.3. Within 48 hours of the commencement of the Contract and, if applicable, the payment of any initial instalment of the Fees, Rhapsody shall send the Client e-mail confirmation of the commencement of the Contract and passwords and user names to enable Permitted Users to access and use ePublish and provide files or instructions to enable the client to download the plug-in for ePublish.
3.1. Rhapsody hereby grants to the Client a non-exclusive, revocable, non-transferrable licence to install and use ePublish as a service during the Term. For the purposes of this licence ‘use’ means use by the Client internally by Permitted Users for the Client’s own business purposes.
3.2. The licence only covers a single entity and not other companies within the Client’s group of entities operated by the same operator, management, local authority or under common ownership for which a separate licence is required (unless otherwise agreed in the Licence Agreement).
4. Use of ePublish
4.1. The Client shall, during the Term: (a) ensure it has suitable computer hardware, software and internet connection in order to use ePublish as a service including the right to use any specific software or hardware specified by Rhapsody from time to time; (b) effect and maintain adequate security measures to safeguard ePublish from access or use by any unauthorised person; (c) keep all usernames and passwords secure and immediately notify Rhapsody immediately if it becomes aware or suspects any unauthorised use of ePublish by any person or any unauthorised use or loss of usernames and passwords.
4.2. The Client agrees that in relation to ePublish the Client shall not: (a) sublicense, lease, transfer, sell, charge, assign, rent or otherwise use ePublish, other than for ePublish’s intended purpose as set out in the licence above (including not “framing” or “mirroring” ePublish on any other server or wireless or Internet-based device to offer it to third parties); (b) unless otherwise permitted by applicable law, alter, modify, adapt, translate or otherwise change the whole or any part of ePublish, nor permit the whole or any part of ePublish to be combined with or become incorporated in any other software, nor decompile, disassemble or reverse engineer ePublish nor attempt to do any such things; (c) access, transmit, create or store any virus, worm, trojan horse, bot or other destructive or contaminating program using ePublish; (d) use ePublish in the development of any derivative works; (e) use ePublish in any way which breaches applicable law; (f) work around any technical limitations or security features of ePublish to do any of the acts prohibited in Clauses 4.2(a) to 4.2(e); nor (g) instruct, assist or advise any other person to perform the acts prohibited in Clauses 4.2(a) to 4.2(e) above.
4.3. The Client acknowledges that: (a) ePublish has not been prepared to meet the Client’s individual requirements and that it is therefore the responsibility of the Client to ensure that the facilities and functions of ePublish meet its requirements. Rhapsody shall not be liable for any failure of ePublish to provide any facility or function not specified in the Licence Agreement; (b) Rhapsody gives no warranty or guarantee as to the use and uptake of ePublish by Permitted Users; (c) it has had the opportunity to evaluate and assess ePublish before entering into the Contract either through reviewing the description in the Licence Agreement, Rhapsody’s website or through a ‘live’ demonstration; (d) Rhapsody is constantly developing and refining its technology, therefore ePublish is provided to clients as a service on an ‘as is’ basis and that ePublish may be updated or upgraded from time to time and that future version of ePublish may be incompatible with previous versions, applications relating to or Client Content used in conjunction with previous versions.
4.4. The Client acknowledges that it is liable for all content which it sends, uploads, publishes or otherwise uses ePublish including all text, fonts (including all relevant font licences) images or video content (“Client Content”). This includes liability for defamation, liability under data protection legislation, infringement of third party intellectual property rights, compliance with the Advertising Standards Agency guidance and liability for any other act or omission which otherwise breaches any law. The Client is also liable for the security and use of all information which is collected from Permitted Users via ePublish.
4.5. The Client is not permitted to use ePublish to send, upload, publish or otherwise use any Client Content which, in Rhapsody’s reasonable opinion, would be detrimental to the reputation of Rhapsody including any material which; (a) is pornographic; (b) is illegal or which promotes illegal activities; (c) harasses, degrades, intimidates or is hateful toward an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability; or (d) is false, deceptive, misleading, or deceitful.
4.6. Rhapsody reserves the right to remove any content which is sent, received, downloaded, uploaded or published using ePublish in breach of Clauses 4.4 or 4.5.
5. Custom Development and Custom Production
5.1. Rhapsody may provide the following ancillary services (the ‘Custom Services’) which shall either be agreed in the Licence Agreement of subsequently during the Term in writing by both parties:
(a) ‘Custom Development’ means the provision of development services to create or enhance functions or features of ePublish for its use by the Client, including the development of templates. For the avoidance of doubt, all such customisations created as a result of the provision of any Custom Development shall be the property of Rhapsody and shall be treated as forming part of ePublish for the purposes of the Contract;
(b) ‘Custom Production’ means the provision of production services by assisting the Client with its use of ePublish and the release of its publications. For the avoidance of doubt, the Client shall have final approval of any materials before publication and shall be solely responsible for any Client Content within such publications and in respect of such publications generally.
5.2. The Fees for such Custom Services shall, where possible, be agreed in advance between the parties. However, additional Fees may be charged by Rhapsody for the Custom Services if:
(a) additional time is spent on the delivery of the Custom Services by Rhapsody above what was agreed, including as a result of any delays, cancellations or alterations to the Custom Services attributable all, on in part, to the Client; or
(b) additional fees are charged by Rhapsody’s third party subcontractors.
5.3. Rhapsody shall use its reasonable endeavours to notify the Client if Fees for Custom Services are incurred or are likely to be incurred under Clause 5.2. Such Fees shall be calculated on a ‘time and materials’ basis and at Rhapsody’s standard rates from time to time.
5.4. Fees for Custom Services shall be invoiced at the end of the month in which they are incurred and are payable in accordance with Clause 6.
5.5. In respect of the Custom Services, Client acknowledges that these may be delivered by third party subcontractors acting on behalf of Rhapsody.
6.1. The Client shall pay the Fees to Rhapsody in accordance with this Clause 6 and as set out in Part 3.3 of the Licence Agreement.
6.2. Rhapsody shall invoice the Client in accordance with the Licence Agreement. Fees under the Contract are: (a) due and payable within 30 days of the date of Rhapsody’s invoice to the Client or, if being paid by direct debit, Fees shall be taken at the end of each month; (b) payable in pounds sterling; (c) non-cancellable and non-refundable; (d) exclusive of Value Added Tax (or any other applicable sales taxes); (e) without set-off, deduction or withholding.
6.3. If Client receives an invoice from Rhapsody which it disputes in good faith Client shall pay such portion of the disputed invoice which is not disputed in accordance with this Clause 6. Client shall notify Rhapsody in writing if it disputes any invoice within 14 days of the receipt of such invoice. In the absence of such notice the invoice will automatically be deemed acceptable to Client. If Client gives such notice it may withhold payment of the disputed part of the invoice pending resolution of such dispute.
6.4. Time shall be of the essence in respect of Client’s payment of Rhapsody’s invoices.
6.5. If any sum payable under the Contract is not paid within 7 days of the due date then, without prejudice to Rhapsody’s other rights and remedies, Rhapsody reserves the right to suspend access to ePublish in accordance with Clause 10 and/or terminate the Contract under Clause 9.2(a) as a material breach of the Contract.
7. Warranties and undertakings: Each party warrants and undertakes to the other that: (a) it has the necessary authority to enter into the Contract; (b) the performance of the Contract by that party will not breach any contractual or other obligation owed by that party to any other person, nor any rights of any other person or any other legal provision; and (c) it is acting on its own behalf and not for the benefit of any other person.
8. Intellectual Property and Third Party Claims
8.1. ePublish (and the copyright and other intellectual property rights of whatever nature in ePublish, including any modifications made thereto) and ePublish Branding are and shall remain the property of Rhapsody and its licensors. Nothing in the Contract shall be construed as an assignment or grant to the Client of any right, title or interest in ePublish.
8.2. The Client Content (and the copyright, and other intellectual property rights of whatever nature in ePublish, including any modifications made thereto) are and shall remain the property of the Client and its licensors.
8.3. The Client shall immediately notify Rhapsody if any claim or demand is made or action brought against the Client for infringement or alleged infringement of any third party intellectual property rights (a “Third Party Claim”) as a result of its use of ePublish. Rhapsody shall at its own expense conduct any litigation or negotiation arising out of or in connection with such Third Party Claims and the Client hereby agrees to grant to Rhapsody exclusive control of any such litigation and such negotiations. The Client shall, at the request of Rhapsody, give Rhapsody all reasonable assistance for the purpose of contesting any Third Party Claims. The Client shall not make any admissions (save where required by court order or governmental regulations) which may be prejudicial to the defence or settlement of any Third Party Claim without Rhapsody’s approval.
8.4. As a result of a Third Party Claim, Rhapsody may: (a) procure a licence for the continued use and provision of ePublish; (b) modify ePublish; or (c) if as a result of the Third Party Claim Rhapsody is unable to continue to provide ePublish in substantially its current form under Clauses 8.5(a) or 8.5(b) without material detriment to Rhapsody, terminate the Contract under Clause 11.3(c).
8.5. Clauses 8.4 and 8.5 shall not apply to any Third Party Claim in respect of: (a) any use by or on behalf of the Client of ePublish in a manner outside the normal use of ePublish or the instructions of Rhapsody; or (b) the Client’s unreasonable refusal to accept modified form of ePublish pursuant to Clause 8.5(a).
9.1. Each party shall:
(a) not use or disclose to any person any Confidential Information relating to the other which it has received or acquires;
(b) keep secret and confidential any and all Confidential Information of the disclosing party by employing the same degree of care as it takes to preserve and protect its own confidential information of a similar nature but in no event shall this be less than a reasonable degree of care; and
(c) use the Confidential Information of the disclosing party solely in connection with the performance of the Contract and not for its own benefit or the benefit of any third party.
9.2. Clause 9.1 does not apply to:
(a) disclosure by a party of Confidential Information relating to the other to one of its directors, officers or employees who needs to have the Confidential Information in order to carry out its duties under the Contract;
(b) use or disclosure of Confidential Information relating to the other, required to be used or disclosed by law or by any competent regulatory body, including as required by the rules of any recognised stock exchange;
(c) Confidential Information relating to the other which becomes publicly known other than through a breach by either party of Clause 9.1; or
(d) disclosure to a third person where such disclosure is necessary for the purpose of fulfilment of a party’s obligations under the Contract.
9.3. The restrictions contained in this Clause 9 will apply during the Term and shall continue thereafter for a period of 2 years.
10. Suspension of Services
10.1. Rhapsody may at its sole discretion without liability or prejudice to its other rights to the Client, suspend the provision of ePublish (in whole or in part) if: (a) the Client breaches the provisions of Clause 4; (b) the Client fails to pay any Fees then payable under Clause 6; or (c) Rhapsody is carrying out maintenance of ePublish.
10.2. In order to facilitate a suspension of ePublish, Rhapsody may, without any liability to the Client, disable the Client’s (or any Permitted User’s) password, account and access to all or part of ePublish and Client shall be under no obligation to provide any or all of the ePublish until the circumstances at Clause 10.1 are resolved to Rhapsody’s satisfaction.
10.3. Exercise of any right of suspension under this Clause 10 shall not function as a waiver of any right of termination which Rhapsody may have under the Contract.
11. Term and Termination
11.1. The Contract shall, unless terminated early in accordance with this Clause 11 or Part 3.4 of the Licence Agreement continue for the Term.
11.2. Either party may terminate the Contract immediately on giving notice in writing to the other if: (a) the other party commits a material breach of any term of the Contract and (in the case of a breach capable of being remedied) shall have failed, within 14 days after the receipt of a request in writing from Rhapsody so to do, to remedy the breach; (b) the other party: (i) has stopped payment of, or is unable to pay its debts; (ii) compounds with or convenes a meeting of its creditors or some action is taken to terminate its business; (iii) has a receiver, administrative receiver, liquidator or provisional liquidator appointed over all or any part of its assets; (iv) suffers an event which would entitle the appointment of a receiver over its assets or which could cause any floating charge on its assets to crystallise; (v) has a petition presented or an order is made or a resolution is passed for its winding up or a meeting is convened for the purpose of winding it up; (vi) suffers any event analogous to the events described in this Clause in any jurisdiction in which the party is incorporated or resident or carries on business; (vii) for any reason ceases, or threatens to cease, to carry on business.
11.3. Rhapsody may terminate the Contract immediately if: (a) there is a ‘Change of Control’ of Client (‘control’ as defined in section 1124 of the Corporation Tax Act 2010) or Client transfers its assets or business or a substantial part of it to a third party; (b) the Client challenges the validity of, or infringes any of Rhapsody’s intellectual property rights in ePublish; (c) Rhapsody is unable to continue to provide ePublish as the result of a Third Party Claim pursuant to Clause 8.5(c); or (d) at any time if Rhapsody provides 90 days’ notice in writing.
11.4. Immediately upon the termination or expiry of the Contract: (a) all rights granted to the Client under the Contract shall cease; (b) the Client shall cease all activities authorised under the Contract; (c) the Client shall cause any materials relating to ePublish to be erased from all of its hardware and software and shall certify to Rhapsody it has done so (in writing, if requested); and (d) Rhapsody shall invoice the Client for any Fees which are due; and (e) Client shall pay all outstanding Fees which are due immediately.
11.5. Any termination or expiry of the Contract (howsoever occasioned) shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination. There shall be no refund of any element of the Fees by reason of any termination by the Client.
12. Liability and Indemnity
12.1. Nothing in the Contract shall operate to exclude or limit the parties’ liability for: (a) death or personal injury caused by their negligence; (b) their fraud or fraudulent misrepresentation; or (c) any other matter for which liability cannot be excluded or limit under law.
12.2. Subject to Clause 12.1, Rhapsody shall not in any circumstances have any liability for any losses or damages which may be suffered by the Client (or any person claiming under or through the Client), and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories: (a) special, indirect or consequential loss or damage, even if Rhapsody was aware of the circumstances in which such special damage could arise; (b) loss of profits, loss of anticipated savings, loss of business opportunity, wasted management time, loss of goodwill; (c) loss or damage caused by the corruption of content or data, or losses or damage to any computer software, hardware or computer system caused by ePublish or any bug or virus contained within or transmitted by ePublish; (d) loss or damage arising out of or in connection with the failure of the Client’s software, hardware or connection to the Internet; or (e) the act or omission of the Client, its staff or any Permitted User in relation to the use of ePublish.
12.3. Subject to Clause 12.1, to the fullest extent permitted by law Rhapsody excludes all representations, warranties, conditions, terms, undertakings, and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise that are not expressly set out in the Contract.
12.4. Subject to Clause 12.1, the total aggregate liability of Rhapsody to the Client is limited to the amount of fees Rhapsody has received from the Client in the 6 month period prior to the action giving rise to liability.
12.5. Rhapsody shall not be responsible for any breach of the Contract caused by circumstances beyond Rhapsody’s reasonable control.
12.6. The Client acknowledges that ePublish will not be error free and uninterrupted, nor shall Rhapsody correct all errors in ePublish. ePublish may contain viruses, bugs, worms, trojan horses, bots and other harmful and destructive components, although Rhapsody shall use its reasonable endeavours to correct any such errors or remove such defects.
12.7. Client hereby indemnifies Rhapsody in respect of all liabilities, costs (including legal costs), damages, losses and expenses suffered or incurred by Rhapsody in relation to a breach or non-performance of Clause 4.4.
12.8. Client acknowledges that the limitations and exclusions contained in this licence are reasonable in light of the nature and costs of the ePublish service.
13. General: (a) Dealings in Rights and Obligations: Rhapsody may at any time assign, novate, charge or deal in any other manner with any or all of its rights and obligations under the Contract. The Client may not at any time sub-licence, assign, novate, charge or deal in any other manner with any or all of its rights and obligations under the Contract; (b) Waiver of remedies: No failure by either party to exercise, and no delay in exercising, any right or remedy under the Contract, shall operate as a waiver of such right or remedy; (c) Entire Agreement: The Contract sets out the entire agreement between Rhapsody and the Client in relation to its subject matter; (d) No Partnership or Agency: Nothing in the Contract establishes any partnership or joint venture between any of the parties, constitutes any party the agent of another party; (e) Notices: All notices which are required to be given under the Contract shall be given by email to the addresses provided in the parties’ Contact Details in Part 2 of the Licence Agreement and shall be deemed to have been served 48 hours after dispatch; (f) Severability: Notwithstanding that the whole or any part of any provision of the Contract may prove to be illegal or unenforceable the other provisions of the Contract and the remainder of the provision in question shall remain in full force and effect; (g) Third Parties: The parties confirm their intent not to confer any rights on any third parties by virtue of the Contract and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to the Contract; (h) Governing Law and Jurisdiction: The Contract, and any dispute arising out of or in connection with the Contract, shall be governed by and construed in accordance with the laws of England and Wales. Any dispute or claim arising out of or in connection with the Contract shall be subject to the jurisdiction of the courts of England and Wales.
14. Definitions and Interpretation: In the Contract the following words shall have the following meanings: “Client” means the party identified in Part 1 of the Licence Agreement; “Client Content” means as defined in Clause 4.4; “Confidential Information” means, in relation to a party, all information relating to that party’s business, customers or financial or other affairs which is not in the public domain, and all information relating to a third person’s business, customers or financial or other affairs which is not in the public domain and provided to a party under an obligation of confidence, including information relating to: (a) details of customers and Rhapsody’s, sales targets, sales statistics, market share statistics, prices of products and services sold and purchased, market research reports and surveys and advertising or other promotional materials; (b) future projects, business development or planning, commercial relationships and negotiations; and (c) designs, formulae, inventions or improvements relating to products and services or prospective products and services designed or sold by that party or third person or any other trade secrets or financial or technical information relating to the business, finances, dealings or affairs of that party or third person; “Custom Development” means as defined in Clause 5.1(a); “Custom Production” means as defined in Clause 5.1(b); “Custom Services” means Custom Development and Custom Production; “Contract” means as defined in Clause 1; “ePublish” means the online software application of Rhapsody known as ‘ePublish’ which is further described at in Part 3.1 of the Licence Agreement; “Fees” means the fees payable by the Client to Rhapsody as specified in Part 3.3 of the Licence Agreement; “General Terms” means this document; “Licence Agreement” means the document to which these General Terms are appended; “Permitted Users” means the persons permitted to access and use ePublish as set out in Part 3.5 of the Licence Agreement; “Rhapsody Brand” means the name ‘ePublish’ and any trade mark rights (whether registered or unregistered) relating thereto and any materials relating to the promotion of ePublish; “Rhapsody” means Rhapsody Limited a company incorporated and registered in England and Wales with company number of 01280705 and a registered office at Bentalls Complex, Colchester Road, Heybridge, Essex, CM9 4N; and “Term” means the duration of the Agreement as described in Part 3.4 of the Licence Agreement.
14.1. Interpretation: In the Agreement: (a) reference to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended extended or re-enacted; (b) any reference to a party to the Agreement includes a reference to his successors in title and permitted assigns; and (c) any words following the terms “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms; (d) any reference to “Clause” means a clause within these General Terms and any reference to “Part” means a part of the Licence Agreement.
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