Standard Terms and Conditions of Purchase Carlton Publishing Group
STANDARD TERMS AND CONDITIONS OF PURCHASE
Carlton Books Ltd
(company no. 02625229)
Jonathan Goodman Publishing Ltd
(company no. 05156636)
André Deutsch Ltd
(company no. 02565846)
all trading as
Carlton Publishing Group
20 Mortimer Street
(“Carlton”, which expression where the context admits includes Carlton’s assigns or successors)
(a) Carlton wishes to purchase certain goods or services (“Product”) that are set out in an order (whether informally or not, by email or not, by a formal purchase order or otherwise - “the Purchase Order”) that Carlton has sent to a supplier (“You”).
(b) Carlton has agreed to purchase the Product referred to within the Purchase Order subject to these terms (“this Agreement”).
IT IS MUTUALLY AGREED between You and Carlton as follows:
1. Application Of These Terms
1.1. Subject to clause 1.3, this Agreement applies to all of Carlton’s purchases, and any variation to these conditions shall have no effect unless expressly agreed in writing and signed by Carlton.
1.2. Other than those statements, promises and/or representations described in clause 1.2(a), subject to any variation under clause 1.1, this Agreement shall be to the exclusion of all other terms and conditions (including any terms or conditions which You purport to apply under any quotation, purchase order, confirmation of order, specification or other document, or implied by law, trade custom, practice, or course of dealing). For the avoidance of doubt:
(a) You acknowledge that Carlton has relied on statements, promises and/or representations You have made, or have been given by or on Your behalf, about the Product which may not be set out in the Purchase Order, whether oral or otherwise;
(b) no terms or conditions endorsed on, delivered with, attached to, enclosed with, referred to, or contained in any quotation, confirmation of order, specification or other document shall form part of this Agreement simply as a result of such document being referred to in this Agreement; and
(c) no oral agreement, guaranty, promise, condition, representation or warranty made to You by Carlton, its employees and/or agents with respect to the Product shall be binding upon Carlton; other than those statements, promises and/or representations described in clause 1.2(a), all prior conversations, agreements or representations related thereto and/or to the Product are integrated herein.
1.3. Your quotation for the Product constitutes Your offer to supply the Product pursuant to this Agreement. Any offer You place will be deemed not accepted unless Carlton has issued a written and executed Purchase Order or acceptance of the quotation for the Product, at which point a contract for the supply and purchase of the Product under this Agreement will be established.
1.4. This Agreement does not apply if:
(a) the sale is subject to its own written contract signed by Carlton; or
(b) You are an individual acting for purposes that are outside your business.
2.1. You will deliver the Product in accordance with the details specified in the Purchase Order, and time is of the essence.
2.2. If You consider that Carlton is not or may not be complying with any of its obligations, You will only be entitled to rely on this as relieving Your performance under this agreement:
(a) to the extent that it restricts or precludes Your delivery of the Product; and
(b) if You, promptly after the actual or potential non-compliance has come to its attention, has notified details to Carlton in writing.
3.1. The Product must be fit for purpose.
3.2. You must perform the delivery of the Product with reasonable care and skill and in accordance with generally recognised commercial practices and standards in the industry for similar services.
3.3. You must conform with all descriptions and specifications You provided to Carlton, including but not limited to those set out in the Purchase Order as well as those referred to in clause 1.2(a).
3.4. The Product must be provided in accordance with all applicable legislation from time to time in force and You will inform Carlton as soon as You become aware of any changes in that legislation.
3.5. Carlton's rights under this agreement are in addition to the statutory terms implied in favour of Carlton by the Supply of Goods and Services Act 1982 and any other statute.
3.6. This clause 3 survives any performance, acceptance or payment pursuant to this agreement and extends to any substituted or remedial services You provide.
4.1. Carlton must pay You the price set out in the Purchase Order (“the Price”).
4.2. Unless stated otherwise on the Purchase Order, the Price is VAT inclusive.
4.3. Carlton must pay the Price in the stages and by the dates set out in the Purchase Order, subject to the proviso that if the transaction is subject to VAT then Carlton will not pay You the Price until Carlton receives a VAT invoice from You in respect of the Price.
5. Method Of Payment
5.1. All sums of money payable to You by Carlton under this Agreement must be paid in the currency in which the Price is stated (except deductions of tax which Carlton is obliged by law to make).
5.2. Time is not of the essence for payment. Instead, if Carlton fails to pay You any sums due under this Agreement within the time specified in this Agreement, Carlton must pay to You simple interest on the outstanding amounts equal to the UK Bank base rate as charged from time to time (“Interest”) from the date payment was due until such payment is made in full. You agree that this is a substantial remedy for late payment under the Late Payment Of Commercial Debts (Interest) Act 1998.
5.3. Carlton may withhold from, deduct from or set-off against any monies owed to You under this Agreement, any claims, expenses or demands it may have against You.
6. Ownership Of Product
Notwithstanding payment for any Product, Carlton will obtain full legal and beneficial title to all Product upon receipt.
7. Warranties And Indemnities
7.1. Carlton warrants to You that it has the power to enter into this Agreement.
7.2. You warrant to Carlton that:
(a) You have full power to enter into this Agreement;
(b) You are aware of the purpose for which the Product will be used;
(c) all Your documents about the Product, as well as any statements, promises and/or representations referred to in clause 1.2(a), are accurate, complete in all material respects, and are not misleading; and
7.3. You indemnify Carlton and its respective successors, assigns, related companies, agents, contractors and licensees (and the employees and officers of the foregoing) (“Associates”) against any and all types of losses, damages, actions, charges, penalties, liability, proceedings, claims, demands, expenses and costs (including but not limited to any legal costs or expenses properly incurred and any compensation, costs or disbursements paid by Carlton and/or its Associates to compromise or settle a claim and reasonable counsel fees) incurred by Carlton and/or its Associates in consequence of:
(a) an alleged or proven breach or non-observance of any term, condition, warranty, undertaking or representation of this Agreement by You or Your Associates;
(b) any alterations, additions or omissions made to the Work by You, an Associate of You or a third party; and/or
(c) the publication, sale, distribution, marketing, promotion, advertising, and/or other exploitation of the Edition by You or Your Associates.
8.1. Carlton may (without prejudice to any claim it may have against You for damages or otherwise) terminate this Agreement immediately if:
(a) You breach clause 2.1, subject to clause 2.2;
(b) You commit any breach of this Agreement and the breach is incapable of being remedied;
(c) You commit any other breach of this Agreement and the breach is capable of being remedied, and You fail to remedy that breach within fifteen (15) days of receiving written notice from Carlton requesting You to do so;
(d) You enter into a trust deed for the benefit of Your creditors, or a deed of arrangements, or commit an act of bankruptcy or become insolvent or compound with Your creditors;
(e) if (being a company) an order is made or a resolution is passed for Your winding up;
(f) You become bankrupt or go into liquidation (other than a liquidation for the purpose of reconstruction the terms of which have first been approved by Carlton in writing);
(g) a receiver or administrator is appointed over the whole or any part of Your assets; or
(h) You are unable to pay Your debts in the ordinary course of business or cease or indicate an intention to cease to carry on Your business.
8.2. Upon termination of this Agreement, Carlton may (in addition to any other remedies which may be available to Carlton):
(a) either rescind or terminate this Agreement in whole or in part without liability to You;
(b) to refuse to accept Your provision of any further part of the Product;
(c) purchase substitute Product elsewhere;
(d) hold You accountable for any loss and additional costs incurred;
(e) to require You to (and You must) immediately repay all sums Carlton has previously paid You under this agreement;
(f) to require You, without charge to Carlton, to carry out such additional work as is necessary to correct Your failure; or
(g) in any case, to claim such damages as it may have sustained in connection with Your breach or breaches of this agreement not otherwise covered by the provisions of this clause 8.2.
8.3. Termination of this Agreement will be without prejudice to any claim that the Parties have against each other.
9. Limitation Of Liability
9.1. Subject to clause 9.2, any liability of Carlton under or in relation to this Agreement or its subject matter (whether such liability arises due to negligence, breach of contract, misrepresentation or for any other reason) for any:
(a) loss of profits, loss of sales, loss of or damage to business, loss of contracts, loss of customers; or
(b) any indirect, special or consequential loss or damage
is expressly excluded.
9.2. No Party’s liability for death or personal injury caused by its negligence or the negligence of its employees or agents or for fraudulent misrepresentation contained in this Agreement is excluded or limited by this Agreement, even if any other term of this Agreement would otherwise suggest that this might be the case.
10.1. Neither Party may disclose any Confidential Information or material to any third party outside of its organisation other than its advisers or any other person with a strict need to know subject to the proviso that the obligations of confidentiality will not apply to any information:
(a) that is in or enters into the public domain at any time other than by reason of breach of any of the provisions in this clause 10 or any other obligation of confidence owed by the Party, its employees or advisers to the other Party;
(b) that is already in the possession of the Party prior to its receipt from the other Party;
(c) that is subsequently disclosed lawfully to the Party by a third party who did not obtain the same (whether directly or indirectly) from the other Party;
(d) developed by a Party without direct or indirect access to, or use or knowledge of, the information disclosed to it by the other Party; or
(e) where disclosure is compelled by law, by the rules or other requirements of The London Stock Exchange Limited or any government department or agency, or other relevant requirement or by any order of a court of competent jurisdiction. If a party is compelled to disclose confidential information under this clause 10.1(e) then it must inform the other party of that disclosure unless informing the other party would itself contravene a law, rule or requirement of The London Stock Exchange Limited or any government department or agency, or other relevant requirement or any order of a court of competent jurisdiction.
10.2. “Confidential Information” includes but is not limited to:
(a) any information relating to the business, affairs, customers, clients, suppliers, plans, operations, intentions or market opportunities of a Party (or of any member of the group of companies which that Party belongs);
(b) any information relating to the services, product information, know-how, designs, trade secrets or software of a Party (or of any member of the group of companies which that Party belongs);
(c) any and all materials and/or information relating to one or more of a Party’s works, design elements contained in those works, marketing strategies for those works and other proprietary information related to this information, including without limitation manuscripts, synopses and photographs;
(d) any information that a Party, and/or its employees, directors, officers, representatives, advisers, or any person or entity acting under that Party’s direction or control (“Representatives”) may share with or supply to the other Party; and
(e) any information that a Party creates, obtains or produces for the other Party,
however recorded or preserved, disclosed by a Party or its Representatives to the other Party or the other Party’s Representatives.
11. Exclusion Of Force Majeure And Doctrine Of Frustration
11.1. You agree that Your obligations under this Agreement are not affected by any acts of God, labour strikes, management lockouts, riots, war, civil unrest, explosion, terrorism, failures in communication systems controlled by third parties or any injunctions, judgments or adverse claims being awarded against You, and/or any similar cause(s) that are beyond Your control.
11.2. The Law Reform (Frustrated Contracts) Act 1943 does not apply to this Agreement.
12. No Waiver
12.1. No extension of time or other indulgence which may be granted by a Party to the other Party will constitute a waiver to any of that Party’s rights under this Agreement.
12.2. A waiver by either Party of a term or condition of this Agreement in any instance will not be deemed or construed as a waiver of that term or condition for the future or any subsequent breach.
13. Relationship Of Parties
13.1. Nothing in this Agreement creates or is deemed to create a partnership, joint venture, association or relationship of principal and agent between the Parties. The Parties are, with respect to each other, independent contractors.
13.2. This Agreement is excluded from the application of the Contracts (Rights Of Third Parties) Act 1999.
14. Survival And Severability
14.1. Any term or condition of this Agreement which is, expressly or by implication, intended to survive termination or expiry of this Agreement will continue in full force and effect in accordance with its terms after termination or expiry. For the avoidance of any doubt, the Parties agree that clauses 6, 7, 8.2, 8.3, 9, 10 and this clause 14 will survive the termination of this Agreement for any reason.
14.2. If any provision of this Agreement is held to be void or declared illegal, invalid or unenforceable for any reason whatsoever, such provision is divisible from this agreement and will be deemed to be deleted from the Agreement and the validity of the remaining provisions will not be affected.
15. Sub-Licensing And Assignment
15.1. This Agreement is personal to You and You must not assign, sub-license or otherwise dispose of any of Your rights or obligations under this Agreement without the prior written permission of Carlton, which may be withheld for any reason. Any purported breach of this clause shall confer no rights on the purported assignee.
15.2. Carlton may assign, sub-license or other wise dispose of its rights under this Agreement.
Notice given under this Agreement must be in writing, and delivered personally or sent by pre-paid recorded delivery post.
(a) This Agreement is governed by and construed in accordance with the laws of England and Wales and, subject to clause 17.1(b), the parties submit to the exclusive jurisdiction of the London courts.
(b) Carlton may institute claims and pursue proceedings in any court, and the court in which Carlton brings the claim has exclusive jurisdiction in respect of that claim.
17.2. “Parties” means You and Carlton.
17.3. In the event that the Territory or any part thereof is within the European Economic Community the publishing rights and any subsidiary rights granted must not be interpreted in any manner which would in any way directly or indirectly contravene or conflict with the principle established by the Treaty of Rome 1957 and applicable rules, regulations, directives or legislation established by, through or under such Treaty.