Terms & Conditions of Sale Carlton Publishing Group
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 London W1T 3JW United Kingdom (“Carlton”, which expression where the context admits includes Carlton’s assigns or successors)
RECITALS (a) Carlton owns, or is the holder of a licence in, the intellectual property rights in the English language work (“the Work”) that is set out in an order (whether informally or not, by email or not, by a formal purchase order or otherwise - “the Purchase Order”) Carlton has received from a customer (“You”). (b) Carlton has agreed to deliver to You those copies of the Work 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 1.5, this Agreement applies to all of Carlton’s sales, and any variation to these conditions and any representations about the Work shall have no effect unless expressly agreed in writing and signed by Carlton. 1.2. 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 You have not relied on any statement, promise or representation made or given by or on behalf of Carlton which is not set out in this Agreement (although nothing in this condition shall exclude or limit Carlton's liability for fraudulent misrepresentation); (b) no terms or conditions endorsed on, delivered with, attached to, enclosed with, referred to, or contained in the Purchase Order, 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 Work shall be binding upon Carlton; all prior conversations, agreements or representations related thereto and/or to the Work are integrated herein. 1.3. Each Purchase Order, once amendments to it have been agreed by You and Carlton in writing, shall be deemed to be an offer by You to buy the copies of the Work set out within the Purchase Order subject to this Agreement. 1.4. You must ensure that the terms of the Purchase Order are complete and accurate. 1.5. 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. Subject to the clause 2.2, the copies of the Work will be delivered by Carlton to You in accordance with the details specified in the Purchase Order, provided always that: (a) Carlton will not be required to deliver the Work until those payments due under clause 4.2, that are expressed to be payable prior to delivery, have been made by You; and (b) Carlton will use its reasonable endeavours to deliver the copies of the Work on the date specified in the Purchase Order. 2.2. Delivery of up to 5% (five percent) over or under the quantity specified in the Purchase Order will constitute full delivery required by this contract and must be accepted, charged and allowed at the agreed unit Price for the actual number of copies delivered.
3.1. You must notify Carlton in writing within 14 (fourteen) days of delivery of any defects in the copies of the Work which were attributable to faulty materials or faulty workmanship and which are unacceptable for sale and distribution (“the Imperfect Copies”). In the absence of any notification of any Imperfect Copies within that period You will be deemed to have accepted the copies of the Work delivered under that order. 3.2. If You notify Carlton that there are Imperfect Copies, the Parties will attempt, in good faith, to agree on the number of Imperfect Copies. 3.3. Carlton will, at its option (but must do at least one of the following): (a) repair the Imperfect Copies; or (b) replace the Imperfect Copies; or (c) credit You the Price for the Imperfect Copies (to the extent that You have paid for the Imperfect Copies) and (to the extent that You have not paid for the Imperfect Copies) exempt You from paying the Price for the agreed number of Imperfect Copies. 3.4. Under no circumstance will Carlton be liable for the cost of checking stocks of the Work in Your warehouse.
4.1. You must pay Carlton the price set out in the Purchase Order (“the Price”, subject to clause 4.2). No quotation made by Carlton constitutes an offer and any quotation may be withdrawn or revised at any time prior to acceptance by Carlton of the Purchase Order. 4.2. If VAT is or becomes payable under this Agreement, then the Price is deemed to be redefined to be increased to the amount that, when the rate of VAT is deducted, is equal to the figure set out as the price on the Purchase Order. 4.3. You must pay Carlton the Price in the stages and by the dates set out in the Purchase Order. 4.4. Subject to clause 3.3, You must pay the Price for each and every copy of the Work actually received as set out in clause 2.2. 4.5. The Price is inclusive of the cost of bulk packing, producing and manufacturing the Work.
5. METHOD OF PAYMENT
5.1. All sums of money that You must pay to Carlton under this Agreement must be paid in the currency in which the Price is stated, by either a bank transfer directly paid into Carlton’s account (as notified to You whether in writing or by previous business dealings) or by banker’s draft or cheque drawn on either a major London or United States clearing bank without any deduction (except deductions of tax which You are obliged by law to make, in which case You, at the time of making the payment subject to the deduction, must supply Carlton with a certificate from the relevant tax authority in respect of the tax so deducted). 5.2. Time is of the essence regarding payment of the Price under this Agreement. If You fail to pay Carlton any sums due under this Agreement within the time specified in this Agreement, You must pay to Carlton interest (“Interest”) on the outstanding amounts equal to four percent (4%) per annum above the UK Bank base rate as charged from time to time (calculated and capitalized daily) from the date payment was due until such payment is made in full. 5.3. You are not entitled to withhold from, deduct from, or set-off against any monies owed to Carlton under this Agreement, any claims, expenses or demands.
6. OWNERSHIP OF COPIES OF THE EDITION
6.1. Notwithstanding delivery of any copies of the Work and the passing of risk from Carlton to the Publisher, Carlton will retain full legal and beneficial title to all copies of the Work until such time as the Publisher has paid to Carlton the Price in full for such copies of the Work, any Interest, and any other outstanding amounts in respect of this Agreement and any other agreement. 6.2. You will be in possession of such copies of the Work solely in a fiduciary capacity until legal and beneficial ownership in the Work has passed under clause 6.1. You must take reasonable steps to prevent any damage to the copies and must not mortgage or otherwise encumber/charge the stock, and must store the copies in such a way that they are readily identifiable as the property of Carlton. 6.3. If the Publisher has failed to meet any of its material obligations pursuant to this clause 6 or fails to make any payment referred to under clause 6.1, Carlton may (in addition to any other rights Carlton may have at law or under this Agreement): (a) terminate Your right to sell or otherwise dispose of the Work (but for the avoidance of doubt this is not a termination of this Agreement); and/or (b) enter Your premises and repossess and resell those copies of the Work (and You grant Carlton a royalty-free licence to Your trademarks, copyright, and branding on and in the copies of the Work solely for the purposes of that resale). 6.4. Whilst You are in possession of such copies of the Work over which Carlton has retained full legal and beneficial title You may sell such copies provided that You only do so in a fiduciary capacity as agent for Carlton. You retains the proceeds of the sales (“the Proceeds”) on trust for Carlton until the payments referred to under clause 6.1 are made in full. You agree to account to Carlton on demand in respect of the Proceeds and, if required by Carlton, to execute a formal assignation of all claims against Your sub-customer(s).
7. WARRANTIES AND INDEMNITIES
7.1. Carlton warrants to You that: (a) it has the power to enter into this Agreement; (b) as far as it is aware, the Work is in no way whatsoever an infringement of any existing copyright, all necessary permissions for the use of copyright material included in the Work have been granted, and that any fees payable to copyright owners have been or will be paid by Carlton and/or the author of the Work; and (c) as far as it is aware, the Work contains nothing libellous, obscene, or that would breach any confidentiality or privacy. 7.2. You warrant to Carlton that: (a) You have full power to enter into this Agreement; and (b) other than the matters for which Carlton has provided a warranty under clause 7.1 – the Work and/or publication of the Work will not contravene any law of the Territory. 7.3. Subject to clause 12.1, Carlton indemnifies You against any direct loss, injury or damage (including any reasonable and documented legal costs or expenses properly incurred) occasioned to You in consequence of any breach of the warranties contained in clause 7.1 or arising out of any claim alleging that the Work is in breach of any of the warranties contained in clause 7.1, provided always that You: (a) notify Carlton in writing as soon as is reasonably possible of such claim stating fully the details of any such claim; (b) ensure that it does not make any admission, settlement or compromise in respect of such claim without the prior written consent of Carlton; (c) allow Carlton to control the conduct of any action (including the appointment of legal advisors and any offer or counter-offer to settle any claim) in response to such claim; and (d) cooperate fully with Carlton in the defence or compromise or settlement of any claim. 7.4. The provisions of clause 7.3 state Carlton’s entire liability in respect of this Agreement. 7.5. 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. COPYRIGHT IN THE EDITION
This Agreement will not be interpreted as assigning to You or granting to You any right, title, or interest in the intellectual property rights in the Work or the Work. All such copyright will belong to Carlton.
9. MARKET INFRINGEMENT
9.1. You must: (a) not offer any copies of the Work for sale outside of the country in which you are registered at the time Carlton accepted the Purchase Order (“the Territory”); (b) not offer any copies of the Work for sale outside of your normal market channels in which you operated at the time Carlton accepted the Purchase Order; and (c) ensure that no copies of the Work are offered for sale or resale by third parties in a manner that would contravene clauses 9.1(a) and 9.1(b) if You did it. 9.2. From time to time Carlton may request to be provided with copies of any advertising and/or promotional materials relating to the Work (“the Advertising Materials”). You must provide Carlton with copies of such Advertising Materials within a reasonable time of receiving such request. Carlton may request that You amend any such Advertising Materials if Carlton has any reasonable objections or concerns about such Advertising Materials.
10.1. Carlton may (without prejudice to any claim it may have against You for damages or otherwise) terminate this Agreement immediately if: (a) You fail to make any payment as required by this Agreement; (b) You commit any other breach of this Agreement and the breach is incapable of being remedied (and for the avoidance of doubt a breach of clause 9.1 is one such breach); (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. 10.2. You acknowledge and agree that, if You commit a material breach of this Agreement Carlton will be entitled to seek and obtain an injunction against You (in addition to any other remedies which may be available to Carlton). In particular, a breach by You of clause 9.1 would cause irreparable harm to Carlton for which monetary damages may be difficult to ascertain or an inadequate remedy. 10.3. Termination of this Agreement will be without prejudice to any claim that the Parties have against each other.
11. EVENT OF AGREEMENT BEING TERMINATED OR EXPIRING
On termination of this Agreement:
11.1. if Carlton elects, You must destroy all copies of the Work and any other material produced by You for the Work (including, but not limited to, any advertising and promotional material but not including any catalogues already printed) and provide a certificate of destruction to Carlton certifying the destruction of those items; 11.2. any licence (implied or otherwise) that You have been granted to sell the Work will terminate; and 11.3. all monies that You owe to Carlton will immediately become due and payable forthwith, including but not limited to any costs Carlton incurs enforcing its rights under clause 6.3(b).
12. LIMITATION OF LIABILITY
12.1. Subject to clause 12.2, 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. 12.2. 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. 12.3. Force Majeure This Agreement will not be frustrated (and the Law Reform (Frustrated Contracts) Act 1943 will not apply) because of, but neither party will be liable for, the non-observance and/or non-performance of any of the terms or provisions contained in the Agreement where the non-observance and/or non-performance results from, is due to, and/or is caused by an act 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 a party, and/or any similar cause(s) that are beyond the control of either party provided that such party must give notice to the other of the cause of such failure as soon as is reasonably practicable and must use all reasonable endeavours to resume the performance of its obligations hereunder as soon as practicable after conditions have returned to normal.
13.1. 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 12.3 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 13.1(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. 13.2. “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.
14. NO WAIVER
14.1. 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. 14.2. 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.
15. RELATIONSHIP OF PARTIES
15.1. 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. 15.2. This Agreement is excluded from the application of the Contracts (Rights Of Third Parties) Act 1999. 15.3. Subject to clause 6.4, neither Party has the authority to bind the other.
16. SURVIVAL AND SEVERABILITY
16.1. 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 4.2, 5.2, 6, 7, 9, 10.2, 10.3, 11, 12, 12.3 and this clause 16 will survive the termination of this Agreement for any reason. 16.2. 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.
17. SUB-LICENSING AND ASSIGNMENT
17.1. 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. 17.2. If Carlton consents to You sublicensing any of Your rights under this Agreement, You must furnish Carlton with copies of all subsidiary licence agreements and all statements of accounts received from the sub-licensees.
Notice given under this Agreement must be in writing, and delivered personally or sent by pre-paid recorded delivery post.
19.1. Jurisdiction (a) This Agreement is governed by and construed in accordance with the laws of England and Wales and, subject to clause 19.1(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. 19.2. “Parties” means You and Carlton. 19.3. If 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.