THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 6.8 (INDEMNITY) AND CLAUSE 8 (LIMITATION OF LIABILITY).
1. INTERPRETATION
1.1 The following definitions and rules of interpretation apply in these Conditions.
Client: the person or firm who purchases Services from the Publisher.
Client Default: has the meaning set out in clause 4.4.
Client Materials: any advertising copy provided by the Client to the Publisher in connection with the Services (and which may include the Client’s trademarks and/or brand logos) and any other documents, photography, logos, designs, or other property which the Client provides to the Publisher in connection with the Services.
Client Order: the order form attached to these Conditions.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Charges: the charges payable by the Client for the supply of the Services in accordance with clause 5, as set out in the Client Order.
Commencement
Date: has the meaning given in clause 2.3.
Conditions: these terms and conditions as amended from time to time in accordance with clause 10.5.
Contract: the contract between the Publisher and the Client for the supply of Services in accordance with these Conditions.
Deliverable: any web advert, publication, marketing email, corporate insight document, interaction brochure, newsletter advert, video, loose (or other) insert, sponsored article, or other content, document or product, to be included in the Publication (where applicable) developed by the Publisher or its agents, subcontractors and personnel as part of or in relation to the Services in any form.
Intellectual Property Rights: patents, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Publication: the digital publication, print publication or other medium as identified in the Client Order.
Publisher: Finelight Media Limited registered in England and Wales with company number 03756336.
Services: the services, including any Deliverables, to be provided by the Publisher pursuant to the Contract as identified in the Client Order, such services to be provided in accordance with the frequency (if any) and service notes (if any) set out in the Client Order.
Territory: Worldwide. The Territory shall include websites and other globally accessible media to the extent that they are specifically targeted at persons located in such countries.
1.2 A reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time; and shall include all subordinate legislation made from time to time under that legislation or legislative provision.
1.3 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.
1.4 A reference to writing or written includes fax and email.
2. BASIS OF CONTRACT
2.1 Following an enquiry from the Client, the Publisher will send to the Client a draft Client Order setting the scope of the Services requested by the Client. If the Client wishes to make changes to the scope of Services requested, it will inform the Publisher and the Publisher will re-issue a draft version of the Client Order.
2.2 The Client’s written approval of the Client Order constitutes an offer to purchase Services in accordance with these Conditions.
2.3 The Client Order shall only be deemed to be accepted when the Publisher sends an email to the Client confirming the Client Order at which point and on which date the Contract shall come into existence (Commencement Date).
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
3. SUPPLY OF SERVICES
3.1 In consideration for the payment of the Charges by the Client, the Publisher shall supply the Services to the Client in accordance with the Contract.
3.2 In supplying the Services, the Publisher shall:
3.2.1 perform the Services with reasonable care and skill;
3.2.2 provide in writing to the Client details of any technical specifications the Client Materials are required to meet, for example image quality requirements, and advise the Client from time to time of any deadlines by which the Publisher must receive any Client Materials;
3.2.3 use reasonable endeavours to perform the Services in accordance with the service description set out in the Client Order;
3.2.4 comply with all applicable laws, statutes, regulations and codes from time to time in force (provided that the Publisher shall not be liable under the Contract if, as a result of such compliance, it is in breach of any of its obligations under the Contract); and
3.2.5 take reasonable care of all Client Materials in its possession and make them available for collection by the Client on reasonable notice and request, always provided that the Publisher may destroy the Client Materials if the Client fails to collect it within a reasonable period after termination of the Contract.
3.3 To the extent to which the Services relate to the display of advertising on a website operated by the Publisher, the Publisher shall use reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for: 3.3.1 planned maintenance carried out during the maintenance window of 10.00pm to 2.00 am UK time; and 3.3.2 unscheduled maintenance, provided that the Publisher has used reasonable endeavours to give the Client at least 6 hours’ notice in advance.
3.4 The Client understands and agrees that where the Services include an interview with a named individual representing a profile company, the profile company may elect to change the individual representing them and/or the profile content and that such a change shall not give the Client the ability to terminate the Contract or cancel the relevant Deliverable nor the right to any partial or full refund of the Charges.
4. CLIENT’S OBLIGATIONS
4.1 The Client shall:
4.1.1 ensure that the terms of the Client Order are complete and accurate;
4.1.2 co-operate with the Publisher in all matters relating to the Services;
4.1.3 ensure that all Client Materials are provided to the Publisher digitally via email or an online transfer site approved by the Publisher and that all digital files are supplied in accordance with the technical specification provided by the Publisher;
4.1.4 provide, by the deadlines as made known to the Client by the Publisher in writing, such information as the Publisher may require in order to supply the Services (including the Client Materials) and ensure that it is accurate and complete in all material respects; and
4.1.5 ensure that all Client Materials, and their Publication or otherwise making available to the public in accordance with the Contract, shall comply with all applicable laws in the Territory and any other applicable laws, regulations, regulatory policies, guidelines or codes in each case from time to time in force, including all such guidelines and codes issued by statutory, regulatory and industry bodies.
4.2 Time for performance of the Client’s obligations shall be of the essence of the Contract.
4.3 In the event that the Client fails to provide Client Materials in accordance with clause 4.1.3, clause 4.1.4 and/or clause 4.1.5, without limiting or affecting any other right or remedy available to it, the Publisher shall be entitled to repeat the publication of any existing Deliverables that have been published previously for the Client.
4.4 If the Publisher’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):
4.4.1 without limiting or affecting any other right or remedy available to it, the Publisher shall have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations in each case to the extent the Client Default prevents or delays the Publisher’s performance of any of its obligations;
4.4.2 the Publisher shall be entitled to use any advertising space reserved for the Client for another purpose or other material;
4.4.3 the Publisher shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Publisher’s failure or delay to perform any of its obligations as set out in this clause 4.4;
4.4.4 the Publisher shall be entitled to payment of the Charges despite any such prevention or delay; and
4.4.5 the Client shall reimburse the Publisher on written demand for any additional costs or losses sustained or incurred by the Publisher arising directly or indirectly from the Client Default.
5. CHARGES AND PAYMENT
5.1 In consideration for the provision of the Services, the Client shall pay the Publisher the Charges in accordance with this clause 5.
5.2 All amounts payable by the Client exclude amounts in respect of:
5.2.1 value added tax, any similar sales tax or any tax that replaces such sales taxes (VAT), which the Client shall additionally be liable to pay to the Publisher at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice; and
5.2.2 agency commission (if any)
5.3 The Client shall not be entitled to any agency discount, unless such discount is agreed by the parties in writing in advance of this Contract and, where such discount has been so agreed, the Publisher will apply it to the Charges in each invoice submitted by the Publisher to the Client under this Contract.
5.4 The Client shall pay each invoice submitted by the Publisher:
5.4.1 on receipt of the invoice;
5.4.2 in full and in cleared funds to a bank account nominated in writing by the Publisher, and time for payment shall be of the essence of the Contract.
5.5 If the Client fails to make a payment due to the Publisher under the Contract by the due date, then, without limiting the Publisher’s remedies under clause 9:
5.5.1 the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 5.5 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%; and
5.5.2 the Publisher may suspend all Services until payment has been made in full.
5.6 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
6. CLIENT MATERIALS AND INTELLECTUAL PROPERTY RIGHTS
6.1 The Client warrants and represents to the Publisher that:
6.1.1 all information relating to the Client’s business contained within the Client Materials is true and accurate;
6.1.2 the Client Materials will contain nothing that is defamatory, obscene, or unlawful in any other way;
6.1.3 the Client owns, or has an appropriate licence (including publication) to, all Intellectual Property Rights in the Client Materials;
6.1.4 the use of the Client Materials for the Services will not infringe any third party’s rights (including any Intellectual Property Rights);
6.1.5 the Client Materials do not contain any personal data (as defined in the UK GDPR); and
6.1.6 the Client Materials will not compromise the security or operation of the Publisher’s computer systems, through a virus or otherwise.
6.2 The Publisher reserves the right, without liability or prejudice to the Client, to refuse to publish any Client Materials which breach the provisions of clause 6.1.
6.3 The Client and its licensors shall retain ownership of all Intellectual Property Rights contained in the Client Materials.
6.4 The Client grants the Publisher a fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable licence to use, copy, modify and publish the Client Materials for the term of the Contract solely for the purpose of providing the Services to the Client in accordance with the Contract.
6.5 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in the Client Materials) shall be owned by the Publisher.
6.6 The Publisher grants to the Client or shall procure the direct grant to the Client (in each case, to the extent to which it is lawfully able to do so), a fully paid-up, worldwide, non-exclusive, royalty-free, perpetual licence to use and copy the Deliverables (excluding any Client Materials) for the purposes of receiving and using the Services and using the Deliverables in its business.
6.7 The Client shall not sub-license, assign or otherwise transfer the rights granted in clause 6.6.
6.8 The Client will indemnify the Publisher against and covenant to pay the Publisher an amount equal to:
6.8.1 all losses (including but not limited to all direct, indirect and consequential losses), liabilities, costs, damages and Page 2 of 4 expenses that the Publisher does or will incur or suffer; and
6.8.2 all claims or proceedings made or brought or threatened against the Publisher by any person and all losses, liabilities or costs (on a full indemnity basis), damages and expenses that the Publisher does or will incur or suffer as a result of defending or settling any such actual or threatened claims or proceedings, in each case arising out of the Client’s breach of clause 6.1.
7. DATA PROTECTION
Each party shall, at its own expense, ensure that it complies with and assists the other party to comply with the requirements of all legislation and regulatory requirements in force from time to time in the UK relating to the use of personal data and the privacy of electronic communications, including (i) the Data Protection Act 2018 and any successor UK legislation, (ii) the retained EU law version of General Data Protection Regulation ((EU) 2016/679) (UK GDPR), and (iii) the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426)
8. LIMITATION OF LIABILITY
8.1 References to liability in this clause 8 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
8.2 Nothing in the Contract limits or excludes any liability for:
8.2.1 death or personal injury caused by negligence;
8.2.2 fraud or fraudulent misrepresentation;
8.2.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); and/or
8.2.4 any other liability which cannot be limited or excluded by applicable law.
8.3 Nothing in this Contract shall limit or exclude:
8.3.1 the Client’s payment obligations under the Contract; and
8.3.2 the Client’s liability under the indemnity in clause 6.8 of the Contract.
8.4 Subject to clause 8.2, the Publisher’s total liability to the Client under or in connection with the Contract shall not exceed the total Charges paid or payable under it.
8.5 Subject to clause 8.2 and clause 8.3, this clause 8.5 sets out the types of loss that are wholly excluded:
8.5.1 loss of profits;
8.5.2 loss of sales or business;
8.5.3 loss of agreements or contracts;
8.5.4 loss of anticipated savings;
8.5.5 loss of use or corruption of software, data or information;
8.5.6 loss of or damage to goodwill; and/or
8.5.7 indirect or consequential loss.
8.6 The Publisher has given commitments as to compliance of the Services with relevant specifications in clause 3. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
8.7 Unless the Client notifies the Publisher that it intends to make a claim in respect of a mistake in a Deliverable within the notice period, the Publisher shall have no liability for that event. The notice period shall start on the day of receipt by the Client of the invoice for the relevant Deliverable and shall expire 10 days from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail. For the avoidance of doubt, the Publisher shall not be liable for any mistake which is attributable to the Client or any third party. 8.8 The Client Materials are held by the Publisher at the Client’s risk and it is the responsibility of the Client to insure the Client Materials whilst held by the Publisher and whilst in transit.
8.9 This clause 8 shall survive termination of the Contract.
9. TERMINATION
9.1 Where the Contract is for a single Deliverable the Client shall have no rights to terminate the Contract and the Client’s termination rights set out in clause 9.3 below shall not apply.
9.2 Where the Contract is for a series of Deliverables the Client may, by written notice to the Publisher, cancel a single Deliverable within the series of Deliverables before its publication date and on any such cancellation the following charges shall apply:
9.2.1 where cancellation is at least 28 days before the publication date of the cancelled Deliverable no cancellation fee will be payable;
9.2.2 where cancellation is less than 28 days before the publication date of the cancelled Deliverable, the Client shall pay a cancellation fee of 100% of the Charges attributable to that Deliverable, as determined by the Publisher, acting reasonably.
9.3 Subject to clause 9.1, without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
9.3.1 the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;
9.3.2 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or
9.3.3 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
9.4 Without affecting any other right or remedy available to it, the Publisher may terminate the Contract with immediate effect by giving written notice to the Client if:
9.4.1 the Client fails to pay any amount due under the Contract on the due date for payment; or
9.4.2 the Client fails to comply with the provisions of clause 4.1.
9.5 On termination or expiry of the Contract:
9.5.1 the Client shall immediately pay to the Publisher all of the Publisher’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Publisher may submit an invoice, which shall be payable immediately on receipt;
9.5.2 any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect; and
9.5.3 termination or expiry of the Contract shall not affect any of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
10. GENERAL
10.1 Force majeure.
Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly.
10.2 Assignment and other dealings.
10.2.1 The Publisher may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
10.2.2 The Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Publisher.
10.3 Confidentiality.
10.3.1 Each party undertakes that it shall not at any time during the Contract, and for a period of two years after termination or expiry of the Contract, disclose to any person any confidential information concerning the business, affairs, Clients, clients or Publishers of the other party, except as permitted by clause 10.3.2.
10.3.2 Each party may disclose the other party’s confidential information:
10.3.2.1 to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 10.3; and
10.3.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
10.3.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
10.3.4 The publication of an Deliverable by the Publisher is not an endorsement or approval by the Publisher of any product or service advertised in that Deliverable and the Client shall not make, or permit any person to make, any public announcement or communication to this effect.
10.4 Entire agreement.
10.4.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
10.4.2 Each party acknowledges that in entering into the Contract it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
10.5 Variation.
Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
10.6 Waiver.
A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
10.7 Severance.
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement. If any provision or part-provision of this Contract deleted under this clause 10.7 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
10.8 Notices.
1.1.1. Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by email to:
1.1.1.1 in respect of the Client, to the Client’s representative using the email address as set out in the Client Order; and
1.1.1.2 in respect of the Publisher, to the Publisher’s representative using the email address as set out in the Client Order.
10.8.1 Any notice shall be deemed to have been received: (a) if delivered by hand, at the time the notice is left at the proper address; (b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or (c) if sent by email at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 10.8.1, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
10.8.2 This clause 10.8 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
10.9 Governing law and jurisdiction.
The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.