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.
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.
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.
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
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.
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.
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.
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.
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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