The definitions and rules of interpretation in this clause apply in these terms and conditions of trade.
“Booking” means orders for the use of the Services which are placed by the client with the company either verbally or in writing.
The “Company” means The Independent Post Company Limited and any other company which shall from time to time be a subsidiary or holding company of The Independent Post Company Limited. The Company acts as an Employment Agency for the purposes of this Contract in accordance with the Employment Agencies Act 1973 and the Conduct of Employment Agencies Regulations 2003 “the Regulations”).
The Client means the person or company for whom the Services are to be performed or to whom the goods are to be supplied and shall include his agent where the context so admits.
“Confidential Information” means all technical or commercial know-how relating to the business, affairs, customers, clients, suppliers, operations, intentions, product information, designs, trade secret, software, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Client by the Company, is employees, agents or sub-contractors and any other confidential information concerning the Company’s business or its products which the client may obtain.
“Contract” means the sale or supply of all Services by the Company pursuant to these Terms and all subsequent contractual relations between the Company and the Client for the same.
“Editors” means the editors whose services the Company will endeavour to procure for the client under a contract for services.
“Services” means the services as set out in Schedule 1 supplied by the Company at the Client’s request, together with goods where the context admits.
a. These terms and conditions shall apply to this Contract and shall prevail over any previous or inconsistent term or condition contained in any of the Client’s documents.
b. Bookings shall become binding upon the Company giving verbal or written confirmation of acceptance to the Client. The Company will ordinarily require the client to issue written confirmation and/or a valid order number, once a Booking has been placed.
c. The Services shall be provided by the Company to the Client from the scheduled date specified in the Client’s Booking as accepted by the Company, and shall continue to be supplied subject to clause 13 below.
a. The Company accepts bookings on a quotation basis which shall remain in force only in relation to the specified Booking.
b. The quotation will be valid for a maximum of three months from the date of the quotation, unless otherwise specified and provided the Company has not previously withdrawn it.
c. All additional Services and facilities requested by the Client at the outset of and during the course of the provision of the Services will be charged in addition to the quoted rates and must be paid in full by the Client in accordance with clause 4 below.
d. The Company reserves the right to add a service charge of up to 25% to any Services booked on behalf of the Client to cover the Company’s administrative costs of the quoted rates and must be paid in full by the Client in accordance with clause 4 below.
e. Expenses incurred by the Company in connection with the provision of Services shall be repayable by the Client in accordance with clause 4, upon provision to the Client of relevant receipts and invoices.
f. An introduction fee will be charged to the Client for the permanent engagement of any of the Company’s Editors. The parties shall negotiate the relevant introduction fee separately.
g. All rates quoted to the Client shall be exclusive of Value Added Tax, which the Company shall add to its invoices at the appropriate rate and which the Company may vary (together with any other taxes) between the dates of the quotation and the final invoice without reference to the Client should that increase or introduction of taxes become effective pursuant to legislation.
The Client acknowledges that it will ordinarily pay Editors direct in accordance with its own contacts with such Editors, but further acknowledges that where the Client requests additional Services and/or facilities the Company may invoice for those together with the Editor’s fees.
Payment by the Client of the Company’s invoices shall be made in full (without deduction or set-off) within fourteen days of receipt of invoice by the Client.
Failure to pay on the due date shall entitle the Company to charge interest on the amount from time to time outstanding at such rate as the Company may decided but which in any event shall not exceed 4% above the sterling base lending rate for the time being of The Bank of Scotland accruing daily. Such interest shall be payable for the period from when the payment falls due to the date of actual payment.
All outstanding invoices sent to the Client by the Company shall become due immediately on termination of this Contract. All Services supplied but for which no invoices have been submitted, the Company shall submit an invoice which shall be payable immediately upon receipt by the Client.
Time for payment shall be the essence of this Contract.
Cancellation of any Booking will only be effective if prior notification is given in writing by the Client.
If notice of cancellation of a Booking is received by the Company (and subject to the provisions of paragraph 5.3): a) less than 72 hours prior to the scheduled start time for the provision of the Services, then the Booking will be charged at 50% of the full rate; b) less than 48 hours notice will be charged at 75%; c) 24 hours or less at 100%.
The Company reserves the right to treat Bookings made up of consecutive days as one Booking. Bookings stretched out over several weeks but not on consecutive days may also attract a cancellation charge which will reflect the value of the total Booking. The Company reserves the right to charge a cancellation charge of up to 25% of the total value of the Booking for Bookings of more than 1 month in duration which are cancelled within two weeks of the start date.
The Company shall be entitled to withhold provision of any Services or cancel forthwith any Contract if the Client fails to pay to the Company any sum due from it (or from any individual, firm or company with which it is associated) when the payment falls due. The Company shall incur no liability in respect of such withholding of provision of Services or cancellation. Upon such cancellation and without prejudice to any other right that the Company may have against the Client, the Client shall be liable to pay damages to the Company for breach of these Terms.
The Client will promptly provide the Company with such assistance and all necessary information (including but not limited to the nature of the Client’s business, the date on which the Client would require the Editor to start and the duration or likely duration of the work, the type of work to be performed, the location and hours involved, the experience, training and qualifications required, any expenses payable to or by the Editor and the applicable rate of remuneration) as the Company may require to properly perform the Services.
The Client shall obtain the necessary written consents and comply with all licensing formalities, and otherwise ensure that all relevant legislation has been complied with in relation to the Services requested to be carried out.
The Client’s own tapes and disks (and all other storage media) may be stored at a facility nominated by the Company at the request of the Client and at the Client’s expense. The Company will be entitled at any time on giving one week’s notice in writing to the Client to return all Media and, in the absence of written instructions from the Client, the Media will be sent to the Client’s last known address entirely at the risk of the Client.
The Company will arrange for storage of Media and any other property at the request of the Client entirely at the risk of the Client. The Company accepts no responsibility or liability for the loss destruction deterioration or damage for Media and goods held on its behalf at the nominated facility.
The Company will arrange security with external storage firms on request by the Client and may charge the Client an administration fee to be determined by the Company from time to time.
The risk in any goods provided in connection with the Services shall pass to the Client upon delivery but equitable and beneficial ownership shall remain with the company until full payment for the goods in question and all other goods to be supplied for which payment is then due has been received.
Should the goods become constituents of or attached to or be converted into other products while subject to the equitable and beneficial ownership of the Company then the Company shall have the equitable and beneficial ownership in such other products as if they were solely and simply the goods and accordingly sub-clause 8.1 shall as far as appropriate apply to such other products.
The Company shall not provide for any insurance to cover for the Editor’s work undertaken for the Client or the Editor’s work undertaken for the Client or the Editor’s use of the Client’s premises. The Client is responsible for providing adequate insurance whilst the Editor is providing services to the Client’s direction and/or at its premises or other nominated premises.
The Client also acknowledge that it is responsible for insurance whilst each Editor is under the Client’s direction and/or control and shall take all adequate insurance with a reputable insurer in relation to any loss, injury or damage to property caused by or to the Editor whilst they are engaged by the Client.
The Client shall keep in strict confidence all Confidential information. The Client shall restrict disclosure of such Confidential information to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Client’s obligations to the Company, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Client.
The Client agrees to be bound by and comply with the above obligation of confidentiality after the termination of this Contract for whatever reason.
This clause shall not apply however to Confidential Information which is or becomes publicly available (otherwise than by breach of any obligation for confidentiality by the Client).
LIMITATION OF LIABILITY
Nothing in this Contract shall limit or exclude the liability of the Company: 11.1.1 for death or personal injury resulting from negligence; or 11.1.2 for any damage or liability incurred by the Client as a result of fraud or fraudulent misrepresentation by the Company.
The Client acknowledges that the Company acts as an introducer of Editors and not in any other capacity. The Company shall accept no responsibility in relation to the suitability or availability of any Editor chosen by the Client to provide editing services nor in relation to the control of the quality of the work done by the Editor to the Client and the Client acknowledges that it contracts directly with the Editors and is responsible for ensuring the appropriate quality and timely performance of the work. The Company shall accept no liability for any costs, charges, losses sustained or incurred as a result of any Editors’ editing services provided to the Client.
All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
The Company shall not be liable for: (a) loss of profits or (b) loss of business; or (c) depletion of goodwill and/or similar losses; or (d) loss of anticipated savings; or (e) loss of goods; or (f) loss of contract; or (g) loss of use; or (h) loss of corruption of data or information; or (j) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
The Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of the Contract shall be limited to the price paid for the Services in relation to the particular Editor in respect of which any claim has arisen.
In the event that an Editor is unable to carry out the editing services required for whatever reason, the Company reserves the right in its absolute discretion to substitute another Editor whom the Company shall introduce to the Client.
The Company shall, at its discretion, be entitled to terminate all Contracts with the Client forthwith and recover all expenses, losses and damages resulting to the Company including (but without limitation to) loss of profit or other consequential loss if: (i) the Client goes into liquidation, receivership, administrative receivership or administration or any like status or otherwise is unable to pay its debts as they fall due; or (ii) the Client fails or threatens to fail to make any payment owed to the Company on the due date; or (iii) the Client is in breach of any of the terms and conditions of the contract with the Company (including breach of these Terms) and if that breach is remediable, fails to remedy that breach within 30 days of being notified in writing by the Company of such breach; or (iv) the Company may at any time and at its discretion cancel this Contract if it is unable to supply all or part of the Services for any reason and its sole liability to the Client shall be the return to the Client of all the money paid by the Client to the Company in relation to those Services not supplied.
The Company is registered under the Data Protection Act 1998 (“Act”) and will use all reasonable endeavours to comply with this Act at all times.
The Client consent to the Company disclosing such data to such Editors and any third parties as the Company may reasonably require to fulfil the Company’s legal and contractual obligations and to perform the Services. The Client agrees the details of its name, address and payment record may be submitted to a credit reference agency. Personal data will be processed by and on behalf of the Company in connection with the Services only, unless the Client’s prior written consent has been obtained.
The Client is registered under the Act and shall comply with the Act at all times in relation to any personal data disclosed by the Company to it.
If the Company is unable to provide or is delayed in providing any of the Services agreed to be provided by the Company to the Client due to circumstances beyond its reasonable control the Company shall not be liable for any loss or damage suffered including consequential loss or any sum payable to the Client as a result thereof.
COPYRIGHT AND DEFAMATION
The Client shall indemnify the Company against all costs expenses or damages or other liabilities of whatsoever nature incurred by the Company in respect of any claim of infringement including without limitation of copyright royalties performance fees or any other proprietary right of any kind by any third party or for the Client or any use by anyone of such recording or dealing by the company in any respect withy the materials provided by the Client.
These terms and conditions cannot be varied other than by the written amendment signed on behalf of the Company by a board Director of the Company and by the Client.
The Client shall not, without the prior written consent of the Company assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under any Contract.
The Company may at any times assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under any Contract.
19. NO PARTNERSHIP OR AGENCY
Unless otherwise specified, nothing in these Terms is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any misrepresentation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
20. RIGHTS OF THIRD PARTIES
The Contracts (Rights of Third Parties) Act 1999 shall not apply to Contracts.
a. Notice given under any Contract shall be in writing, sent for the attention of the person, and to the address or fax number, given in the relevant Contract (or such other address, fax number or person as the relevant party may notify to the other party) and shall be delivered personally, sent by fax or sent by pre-paid, first-class post or recorded delivery.
b. A notice is deemed to have been received: a) if delivered personally, at the time of delivery, b) in the case of fax, at the time of transmission, c) in the case of pre-paid first class post or recorded delivery, 48 hours from the date of posting and, if deemed receipt is not within business hours (meaning 9.00am to 6.00pm Monday to Friday on a day that is a business day) at 9.00am on the first business day following delivery.
c. To prove service, it is sufficient to prove that the notice was transmitted by fax, to the fax number of the party or, in the case of post, that the envelope containing the notice was properly addressed and posted.
No neglect delay or indulgence on the part of the Company in enforcing the terms and conditions of any Contract shall prejudice the rights of the Company hereunder or be construed as a waiver thereof.
23. ENTIRE CONTRACT
These terms and conditions of trade shall constitute the whole contract between the Company and the Client and shall replace and supersede all previous contracts and/or arrangements between them.
24. GOVERNING LAW AND JURISDICTION
a. Any Contract and any dispute or claim arising out of or in connection with it or its subject matter shall be governed and construed in accordance with the law of England and Wales, notwithstanding that the Contract may be wholly or partially performed outside England and Wales.
b. The parties agree to irrevocably submit to the exclusive jurisdiction of the English courts.
Schedule 1 – The Services
All services provided by the Company from time to time connected with (without limitation):
Discussing the Client’s needs for editing services including the date on which the Client would require Editors to start their editing services, he duration or likely duration of the work, the type of work to be performed, the location and hours involved, the experience, training and qualifications required, any expenses payable to or by the Editor and the rate of remuneration applicable.
Agreeing the identity of Editors and arranging to put the Editors and Client in touch with each other
Negotiating and agreeing with the Client and Editors the Editor’s availability and the fee structure on which the Editors will provide editing services to the Client.
Additional services may be provided by the Company from time to time by prior agreement.
The services exclude:
Involving the Client for the work performed by the Editors,
Receiving payment from the Client for work done by Editors
Negotiating Editors’ terms of engagement with the Client, other than fees.