EDITIONS PUBLISHING LIMITED trading as Editions Financial (“EF”) STANDARD TERMS (the “Standard Terms”)
1. DEFINITIONS AND INTERPRETATION
1.1 In these Standard Terms:
Agreement means the Quotation, these Standard Terms and the Scope of Work;
Business Day means a day other than a Saturday, Sunday or public holiday in England when banks are open for business;
Confidential Information means in relation to either party (the “Disclosing Party”) any and all information whether in oral, tangible or in documented form concerning the business or affairs of that party (or its Group companies) which is disclosed to or otherwise learnt, acquired or developed by the other party (the “Receiving Party”) where (a) such information is by its nature confidential; (b) the Receiving Party knows or ought to know such information is confidential; or (c) such information is designated by the Disclosing Party as confidential;
Customer means the person(s), firm or company who procures any Service from EF;
Customer Materials means any content, text, materials, document, file, item or thing, in whatever form including audio and audio-visual materials, film screens, branding, logos, drawings, artwork, graphics, photographs, images, designs, business forms, information, descriptions, files, SMS or other messages and/or data, provided to EF;
Data means all data (including any personal data) belonging to the Customer or to any of the Customer’s clients which is from time to time held or processed by EF in providing the Services;
Data Protection Legislation means all legislation and regulations relating to the protection of personal data or privacy including the Data Protection Act 1998 and the Privacy and Electronic Communications (EC Directive) Regulations 2003/2426 as amended or replaced from time to time, and any guidance or codes of practice issued by any relevant data protection authority which are applicable to the receipt of the Services by the Customer; and “data controller”, “data processor”, “data subject”, “personal data”, and “processing” will have the definitions given to them in the Data Protection Act 1998;
Deliverables means those items (including content, copywriting, audio visual) which EF will provide and/or make available to or on behalf of the Customer as part of the Services including those (if any) identified or referred to in the Scope of Work;
Disclosing Party means either or both of EF and the Customer, disclosing Confidential Information to the other;
EF Tools means all know-how, software, development tools, processes, methodologies and technologies, documents, data and other material (but excluding any Data and/or Customer Materials), the Intellectual Property Rights of which are vested in or used by EF in performing the Services whether or not such EF Tools are created as a result of the provision of the Services to the Customer and/or at the request of the Customer;
Fees means the fees for the Services set out in or referred to in the Quotation;
Force Majeure means any act, event, omission or accident beyond EF’s reasonable control which will include acts of God, explosion, flood, tempest, fire or accident; war or threat of war, sabotage, epidemic, insurrection or civil disturbance; terrorism; governmental actions; acts or omissions of a third party, including any subcontractor; strikes, lockouts or other industrial actions or trade disputes; difficulties in obtaining raw materials, labour, fuel, parts or machinery; power failure or breakdown in machinery; restraints or delays affecting carriers; malicious damage or acts of hackers; failure in information technology or telecommunications services; failure of a third party software manufacturer; and a virus that cannot be detected or controlled by the use of reasonable anti-virus protective measures;
Group means in relation to a company, that company, any subsidiary or holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company where “holding company” and “subsidiary” are defined in section 1159 of the Companies Act 2006);
Intellectual Property Rights means all intellectual and industrial property rights including patents, know how, registered trademarks, registered designs, utility models, unregistered design rights and unregistered trademarks, service marks, rights to prevent passing off for unfair competition and copyright (including future copyright), database rights, domain names, topography rights and any other rights in any invention, discovery or process, in each case subsisting at any time in any part of the world (whether registered or unregistered) and together with all renewals pending applications or rights to apply for registration, and extensions thereof;
Quotation means the quotation for the Services including any documents referred to in them, to which these Standard Terms are appended or which otherwise incorporate these Standard Terms by reference;
Receiving Party means either or both of EF and the Customer, in receipt of Confidential Information disclosed to it by the other;
Scope of Work means the brief (if any) prepared by EF, together with a detailed specification of the Services to be provided as prepared by EF;
Services means those content, copywriting, audio visual, design and consultancy services described or referred to in the Scope of Work; and
TUPE means the Transfer of Undertakings (Protection of Employment) Regulations 2006 as may be amended from time to time;
1.2 Except as otherwise stated in these Standard Terms or required by their context: (a) references to writing or written includes faxes but not email; (b) references to parties are to EF and the Customer; (c) references to a Paragraph are to the relevant paragraph of these Standard Terms; and (d) references to including and include(s) mean respectively including without limitation and include(s) without limitation.
2. ENTIRE AGREEMENT
2.1 The Customer acknowledges and agrees that the Agreement contains the only terms and conditions upon which EF will provide the Services and will govern the relationship between EF and the Customer to the entire exclusion of all other terms or conditions and all previous oral or written representations. No terms or conditions endorsed upon, delivered with or contained in any purchase order, confirmation of order, Customer prepared brief or any other document will form part of the Agreement whether or not such document is referred to in the Agreement.
2.2 Any variation to the Agreement will have no effect unless expressly agreed in writing and signed by an authorised representative of each party.
3.1 All advertising, samples, artwork, specifications, illustrations or descriptive material made available by EF and any descriptions or illustrations contained in EF’s sales literature, catalogues, brochures, quotation, price list, acknowledgement of order, invoice, service level agreement or other document or other information issued by EF (including on its website) are issued or published for the sole purpose of giving an approximate idea of the Services and Deliverables described in them. They will not form part of the Agreement unless specifically stated otherwise. All documents containing such illustrative or descriptive material (as well as the Intellectual Property Rights in such material) shall remain the exclusive property of EF or its third party licensors, and must not be copied, loaned or transferred.
3.2 Any typographical, clerical or other error or omission in any of the documents referred to in Paragraph 3.1 shall be subject to correction without any liability on the part of EF.
3.3 The Customer must ensure that any artwork, sketches, files containing Data, specifications, descriptions, information or other instructions supplied by or on behalf of the Customer in connection with the manufacture or sale of the Deliverables or provision of the Services are supplied to EF in the manner (including regarding format and method of delivery) directed by EF and are accurate, unambiguous and clearly legible and meet the Customer’s requirements.
3.4 Where EF is supplied with Customer Materials or is requested to use specific material by the Customer when undertaking the Services:
(a) EF will not be liable for any delay in or inability to perform the Services or for any additional costs incurred in performance of the Services or for any defect or error in the Services or Deliverables or errors in or additional costs associated with their delivery to the extent that such delay, inability, costs, defect or error were caused by defects in or unsuitability of the Customer Materials or specified materials, or the Customer’s failure to supply the Customer Materials to EF in the manner (including regarding format and method of delivery) directed by EF, it being noted and agreed that EF may not be able to identify defects in the Customer Materials or specified materials, or the unsuitable nature of the Customer Materials or specified materials until production has commenced, and where additional costs are incurred by EF such costs shall be recoverable from the Customer;
(b) EF may reject any of the Customer Materials or specified materials which in its opinion are unsuitable;
(c) EF may, if the Customer Materials or specified materials are found to be unsuitable during production or have been supplied to EF otherwise than in the manner (including regarding format and method of delivery) directed by EF, charge the additional production costs incurred by EF to the Customer after notifying, where possible, the Customer in writing of the unsuitability of the Customer Materials or specified materials; and
(d) EF accepts no responsibility for imperfect work caused by defects in or unsuitability of the Customer Materials or specified materials.
4. THE SERVICES
4.1 EF will: (a) perform its obligations as set out in the Agreement; (b) ensure the Services are in line with the Scope of Work; (c) perform the Services using reasonable skill and care.
4.2 EF may make any changes to the Scope of Work, design, materials or functionality of the Deliverables or provision of the Services: (a) which are required to comply with any applicable legal or regulatory requirements; (b) are required or advisable to prevent the Services and/or Deliverables infringing third party rights, including Intellectual Property Rights; or (c) which in EF’s reasonable opinion, do not materially affect the quality or performance of the Services.
4.3 Time for performance of the Services will not be of the essence.
4.4 If EF is in breach of Paragraph 4.1, EF will at its option re perform the Services (or the defective part) or refund the Fees pro rata, provided that if EF so requests, the Customer will return to EF or destroy the Deliverables or the part of such Deliverables which is defective. If EF complies with this Paragraph 4.4 it will have no further liability for a breach of Paragraph 4.1 in respect of such Services.
5. CUSTOMER RESPONSIBILITIES
5.1 The Customer will comply with its obligations under the Agreement and with any reasonable instructions of EF and will provide all such assistance to EF as EF may request including the provision of (a) the Customer Materials in the manner (including regarding format and method of delivery) directed by EF; and (b) approvals and sign-off by the Customer of the Deliverables in accordance with these Standard Terms.
5.2 The Customer is responsible for obtaining, at its own cost, all necessary consents, clearances and authorisations which may be required by all applicable law and any regulatory and other authorities or commercial providers in respect of its receipt of the Services and use of the Deliverables. In particular, the Customer agrees that it, and not EF, is responsible for ensuring the use of the Customer’s own and any third party photographs, images, sounds and text in the Deliverables does not infringe third party Intellectual Property Rights, whether those third party materials are sourced by the Customer or by EF on the Customer’s behalf.
5.3 It is a condition of the Agreement and the Customer is responsible for checking that any Customer specifications or requirements, Customer Materials, Data and other materials or instructions provided or specified by or on behalf of the Customer to EF (Customer-supplied items) and for reviewing and approving any Deliverables (EF-supplied items) to ensure that each such Customer-supplied or EF-supplied item will: (a) not contain anything that is libellous, defamatory, offensive or abusive; (b) not be of an obscene, nuisance or threatening nature; (c) not be calculated to demean or be discriminatory of any person or infringe their human or moral rights; (d) comply with and not infringe or contain anything which is alleged to infringe the statutory or common law rights of any person including any third party Intellectual Property Rights; and (e) comply with all applicable laws, codes of practice, guidance and regulatory requirements from time to time (the “Regime”) including but without limitation the Data Protection Legislation, the Consumer Credit Act 1974, the Financial Services and Markets Act 2000, the Consumer Credit (Advertisements) Regulations 2004 and the Consumer Credit (Advertisements) Regulations 2010, any guidance issued by legal and regulatory bodies regarding advertising and sales promotion including, but without limitation, the UK Code of Broadcast Advertising, Sales Promotion and Direct Marketing, the Direct Marketing Association Code of Practice and the rules of the Advertising Standards Authority, the APACS standards and any guidance, codes of practice and regulatory requirements regarding communications including those of Ofcom, the Office of Fair Trading, the Financial Conduct Authority, the Prudential Regulation Authority, the Trading Standards Services and the Advertising Standards Authority; and (f) meet the Customer’s requirements.
5.4 The Customer will indemnify and keep EF fully indemnified against all claims, demands, costs, liabilities and losses (including all interest, penalties, legal and other professional costs and expenses) arising directly or indirectly from any breach or alleged breach of its obligations under this Paragraph 5 and from any third party claim against EF alleging infringement by EF of any third party rights including Intellectual Property Rights contained in the Customer Materials, Data or other materials, specification or instructions provided or specified by or on behalf of the Customer.
5.5 The Customer will comply with all applicable laws and regulatory requirements in its receipt of the Services and the use of the Deliverables by the Customer or by EF or another third party on the Customer’s behalf.
6.1 EF will provide the Customer with proofs of the Deliverables which the Customer must sign-off in accordance with this Paragraph 6. The Customer must sign-off proofs in sufficient time for EF to meet its obligations under the Agreement. The proofs may be sent to the Customer by email with a link to a website, or in a sample email (or any other means) which the Customer will access to review the proofs or may be delivered to the Customer.
6.2 The Customer will check all proofs prepared by EF and will promptly advise EF if any proof is in any respect incorrect or requires amendment or is infringing, defamatory, inaccurate, misleading or otherwise contrary to any applicable legal or regulatory requirement and/or may give rise to legal or regulatory action.
6.3 Following sign off EF will not be responsible for errors in the Deliverables or the Services, unless it has failed to produce the Deliverables or perform the Services materially in accordance with the proofs signed-off by the Customer.
6.4 The Customer will pay for any additional work that may be necessary due to the Customer’s failure to correct or amend a proof correctly prior to sign-off.
6.5 EF may charge the Customer an additional charge if alterations, additional proofs and/or other works are carried out: (a) at the Customer’s request after proofs or samples have been signed-off; (b) where style, type or layout is left to EF’s judgement and the Customer requests variations to that aspect or aspects of the proof; or (c) where drawings, proofs or other instructions supplied to EF by or on behalf of the Customer are not clear and/or not legible and/or contained errors.
7. CHANGES TO SCOPE
7.1 If at any time the Customer wishes to make any alternations to all or any part of the Services including the Scope of Work, and/or Customer Materials and/or Data then the Customer will provide EF with full written particulars of such alterations and with such further information as EF may require.
7.2 EF will either decline to undertake such alterations or will submit to the Customer a quotation for such alterations specifying what changes (if any) will be required to the Services including to Fees and the Deliverables.
7.3 Upon receipt of such quotation the Customer will either: (a) accept such quotation, in which case the Services will be deemed to be amended accordingly; or (b) withdraw the proposed alterations in which case the Agreement will continue in force unchanged.
8. FEES AND PAYMENT
8.1 The Fees are set out in or referred to in the Quotation and are exclusive of value added tax.
8.2 The Customer will pay the Fees within thirty (30) days from the date of receipt of the invoice. Time for payment will be of the essence. If the Fees are overdue EF may, in addition to any other right or remedy, suspend the Customer’s access to the Services and/or suspend the provision of the Services without liability to the Customer.
8.3 EF reserves the right to charge interest on any payment not made when due at the rate of 4% (four per cent) above the base rate of Barclays Bank from time to time. Interest will be charged from the day that any amount becomes a late payment until it represents cleared funds in EF’s bank account.
8.4 EF will have a lien on all Customer Materials and any other property of the Customer held by EF for all monies due from the Customer to EF under the Agreement.
8.5 The Customer will not be entitled to deduct from any sum due to it by EF any sum then due or which at any time thereafter may become due to the Customer from EF.
8.6 Without prejudice to any other right or remedy which EF may have if any sum of money will be recoverable from the Customer or payable by the Customer to EF, EF may deduct such sum from any sums payable to the Customer under the Agreement.
8.7 Payments shall be made in such currency and into such bank account as EF shall nominate from time to time in writing.
8.8 Payment will not be deemed to have been received until EF has received cleared funds.
8.9 All payments payable to EF under the Agreement shall become due immediately upon termination of the Agreement despite any other provision.
8.10 If the production or delivery of the Deliverables or the provision of the Service is suspended at the request of the Customer or delayed due to the default of the Customer, EF may charge the Customer for the work carried out to such time, any materials ordered for the Customer and any other additional costs incurred as a result of such suspension or delay, and such charge shall be payable immediately by the Customer.
9. CUSTOMER’S PROPERTY
9.1 All Customer Materials, Data and any other property supplied to EF by or on behalf of the Customer will remain the property of and at the risk of the Customer.
9.2 EF reserves the right to make a reasonable charge for storage of any Customer Materials, Data and/or any other property of the Customer left with it after termination or expiry of the Agreement and which the Customer instructs EF not to destroy. If the Customer does not wish to pay for such storage EF may destroy such property after giving the Customer not less than four weeks’ notice of the charge for storage and such destruction shall be deemed to be on the Customer’s instructions.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 The Customer warrants that it owns (or is licensed to use in accordance with the Agreement) all rights, including Intellectual Property Rights, in the Customer Materials and the Data, and the Customer grants to EF and to its sub-contractors a non-exclusive, royalty free, sub-licensable licence to use, reproduce, adapt and exploit the Customer Materials and the Data (including all Intellectual Property Rights therein) for the purpose of EF performing its obligations under the Agreement.
10.2 Subject to Paragraph 10.5 and to payment by the Customer of the full amount of the Fees, all Deliverables and Intellectual Property Rights therein are and will, as between EF and the Customer, remain the exclusive property of EF or its licensors and the Customer acknowledges and agrees that it will acquire no right, title or interest therein.. To the extent that any such rights vest in the Customer, the Customer will assign all its right, title and interest in the Intellectual Property Rights in any EF Tools (including any future rights) to EF and will do all acts and execute all documents as may be required to vest all such rights in EF.
10.3 EF may use the name and any brand or trademark or trading name and logo of the Customer in its own publicity materials including brochures, catalogues, advertising material and EF’s website or any website of its Group. EF grants the Customer a non-exclusive licence to use the name and any brand or trademark or trading name and logo of EF in the Deliverables for the sole and express purposes for which the Deliverables are supplied and the Customer shall have no licence for any other use without the express consent in writing of EF.
10.4 The Customer acknowledges and agrees that: (a) where EF uses any product, service or material from a third party in connection with the provision of the Services excluding any stock images (the “Third Party Material”) EF will to the extent necessary to allow the Customer to receive the Services, use its reasonable endeavours to procure, at the cost of the Customer, a licence of such rights in favour of the Customer or grant a sub-licence of the Third Party Material to the Customer; (b) EF will be entitled, at its sole discretion, to use design features, skills and techniques contained in the creation of the Deliverables and/or the provision of the Services, including fonts, typefaces, colours and other stylistic features and combinations thereof (“features”), in materials produced by EF for other customers and for its own promotional and other purposes. All rights in such features will remain vested in EF or its licensors and such use will not constitute an infringement of the Customer’s rights.
11. DATA PROTECTION AND PRIVACY
11.1 The Customer will ensure that all personal data contained in the Data are accurate and up to date and otherwise compliant with Data Protection Legislation when disclosed to EF.
11.2 The parties acknowledge and agree that the Customer or the Customer’s client (as appropriate) will be a data controller in respect of the Data and EF will be a data processor or sub processor (as appropriate).
11.3 Where EF processes Data under the Agreement on behalf of the Customer: (a) EF will ensure that: (i) it has in place appropriate organisational and technical measures to prevent any unauthorised or unlawful processing or any accidental loss, destruction of or damage to the Data and that such measures will ensure a level of security appropriate to the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the Data to be protected; and (ii) it will only act on the written instructions of the Customer or the Customer’s client regarding the Data. The parties acknowledge that the Agreement constitutes written instructions for this purpose; and (b) EF will, so far as is reasonable and at the Customer’s cost, co-operate with and assist the Customer in relation to the exercise of any rights of data subjects in relation to the Data and any complaints or notices relating thereto.
11.4 EF and each of its sub-contractors will be permitted to use and/or disclose any Data to the extent required by any law or to enable EF or its sub-contractor to comply with any law or to perform any obligations owed to the Customer or to a regulatory authority, whether pursuant to any law or otherwise.
11.5 The Customer warrants that it has and will maintain for the duration of the Agreement (a) appropriate data protection registrations which include the processing or sub processing (as appropriate) of Data by EF and its sub contractors; (b) an adequate system in place for updating Data and will make any necessary suppressions from such Data in accordance with the Data Protection Legislation and accepted industry standards; (c) all requisite authority and has obtained and will maintain (including by way of incorporating into all materials and processes through which the Data are captured) all necessary consents or other conditions required under the Data Protection Legislation including any which are necessary for the processing or sub processing (as appropriate) of Data by EF and its sub-contractors, and (d) fully complied with all of its other obligations under the Data Protection Legislation. The Customer will immediately notify EF if any of the consents, conditions or its registrations are revoked or changed in any way which impacts on EF’s rights or obligations under or in connection with the Agreement.
11.6 The Customer will indemnify and keep EF and each member of its Group indemnified against all losses, damages, costs or expenses and other liabilities (including legal fees and penalties) incurred by, awarded against or agreed to be paid by EF or any member of its Group arising from any breach of the Customer’s obligations under this Paragraph 11.
12.1 The Receiving Party will not during the Agreement or at any time thereafter disclose any Confidential Information of the Disclosing Party to any person or use any such information, except for the sole purpose of the performance of the Agreement or with the prior written consent of the Disclosing Party.
12.2 The restrictions in Paragraph 12.1 will not apply to: (a) the disclosure of information where required by law or order of regulatory authority or recognised stock exchange (provided that to the extent permitted by such law or order, the Receiving Party notifies the Disclosing Party of such requirement in advance); (b) information which is made public other than through a breach of the Agreement; or (c) information in the Receiving Party’s possession or provided to the Receiving Party without obligations of confidence.
12.3 The Receiving Party will treat and safeguard as private and confidential all Confidential Information of the Disclosing Party received by it and will take reasonable precautions (which will not be less rigorous than the precautions it takes to safeguard its own confidential information) in dealing with any such Confidential Information to prevent any third party from having access to it and will not take more copies of the Confidential Information than is necessary.
12.4 All Confidential Information (including all copies) will forthwith be returned to the Disclosing Party (or destroyed) upon receipt by the Receiving Party of a written notice to that effect from the Disclosing Party.
13.1 If the contract of employment of any employee is found, or alleged, to have effect after the date of the Agreement as if originally made with EF or any member of its Group pursuant to TUPE, EF or the relevant member of its Group will terminate the employment of the individual concerned within one (1) month of the date of such finding or allegation and the Customer will indemnify and keep EF and each member of its Group fully indemnified against all claims, demands, costs, liabilities and losses (including all interest, penalties and legal and other professional costs and expenses) arising or connected with such finding or allegation and/or termination.
14.1 Either party may terminate the Agreement immediately, by giving notice in writing to the other party if the other party: (a) makes or proposes any voluntary arrangement with its creditors (within the meaning of insolvency legislation) or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order, is wound up or goes into liquidation (other than for the purpose of a solvent amalgamation or reconstruction); or (b) has a receiver, administrative receiver, administrator or similar officer appointed over any of its property or assets, or documents are filed at court or any action taken in relation to the appointment of an administrator; or (c) ceases, or threatens to cease, to carry on business; or (d) is unable to pay its debts as they fall due; or (e) suffers the occurrence of an event equivalent or similar in effect to any of the above events in any other jurisdiction; or (f) fails to fulfil or comply with any of its obligations under the Agreement and such failure is not remediable, or where such failure is remediable fails to remedy such failure within fourteen (14) days of written notice from the terminating party specifying the failure and requiring its remedy.
14.2 The termination of the Agreement will be without prejudice to either party’s rights then accrued and to any provision of the Agreement which is expressly or by implication intended to survive such termination including Paragraphs 5.4 (IPR indemnity), 10 (Intellectual Property Rights), 11 (Data Protection and Privacy), 12 (Confidentiality), 13 (TUPE) and 15 (Liability and Limitations).
15. LIABILITY AND LIMITATIONS – THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS STANDARD TERM.
15.1 EF does not limit or exclude its liability (if any) to the Customer:
(a) for breach of its obligations arising under Section 12 Sales of Goods Act 1979 or Section 2 Supply of Goods and Services Act 1982;
(b) for personal injury or death resulting from its negligence;
(c) under Section 2(3) Consumer Protection Act 1987;
(d) for any matter which it would be illegal for EF to exclude or limit or attempt to exclude or limit its liability; or
(e) for fraud or fraudulent misrepresentation.
15.2 Subject to Paragraph 15.1 EF will be under no liability whatsoever to the Customer whether in contract (including under any indemnities), tort (including negligence), breach of statutory duty, misrepresentation (whether innocent or negligent), restitution or otherwise for any of the following:
(a) loss of profits
(b) loss of business
(c) loss of revenue;
(d) depletion of goodwill, reputation or similar losses;
(e) loss of business opportunity;
(f) loss of anticipated savings;
(g) loss of contract;
(h) loss or corruption of data or information; or
(i) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses
in each case even if foreseeable by or in the contemplation of the parties.
15.3 Subject to the remaining sub-paragraphs of this Paragraph 15, the total aggregate liability of EF under or in connection with the Agreement for all claims whether in contract (including under any indemnity), tort (including negligence) or otherwise, will not exceed the amount of the Fees payable by the Customer under the Agreement.
15.4 Subject to Paragraph 15.1, EF excludes to the fullest extent permissible in law, all conditions, warranties and stipulations, express (other than those set out in the Agreement) or implied, statutory, customary or otherwise which, but for such exclusion, would or might subsist in favour of the Customer.
15.5 Subject to Paragraph 15.1, EF will not be liable for any defects in the performance of the Services, or for any defect in the Deliverables or breach of any term of the Agreement if:
(a) the defect or breach arises because the Customer:
(i) failed to follow EF’s oral or written instructions or (if there are none) good trade practice;
(ii) used the Services and/or Deliverables improperly; or
(iii) gave EF incorrect, incomplete, misleading or otherwise defective instructions.
(b) the Customer alters or repairs any of the Services or the Deliverables without the written consent of EF; or
(c) the defect or breach arises from any defect or error in or the unsuitability of any customer prepared brief, Data or Customer Materials or from any specified materials which EF is requested by the Customer to use or from the Customer failing to amend the proofs correctly prior to sign-off by the Customer in accordance with Paragraph 6 or the Customer’s failure or delay to supply the Customer Materials to EF in the manner (including regarding format and method or delivery) directed by EF.
15.6 The Customer shall take all reasonable steps to mitigate its loss.
15.7 This Paragraph 15 shall survive termination of the Agreement.
16.1 EF will not be deemed to be in breach of the Agreement or otherwise liable to the Customer in any manner whatsoever for any failure or delay in performing its obligations under the Agreement due to Force Majeure.
16.2 EF may sub-contract and/or assign any part of its obligations under the Agreement without the Customer’s prior written approval and may provide such subcontractors and/or assignees with access to any Data or to the Database, Customer Materials and any Customer Confidential Information. The Customer shall not be entitled to assign the Agreement or any part of it without the prior written approval of EF.
16.3 Any notice will be in writing to the recipient at its registered office or its address stated in the Quotation or Scope of Work (or such other address as may be notified in writing from time to time) and will be marked for the attention of the party’s Company Secretary.
16.4 Any notice will be deemed to have been duly served: (a) if delivered by hand, when left at the proper address for service (except that where such delivery is not on a Business Day service will be deemed to occur on the next Business Day); or (b) if given or made by prepaid first class post, two Business Days after being posted.
16.5 The parties are independent contractors and not joint venturers, partners or agents of each other and neither party will have any authority to act on behalf of the other.
16.6 If any term of the Agreement to any extent is held to be invalid, void or unenforceable, then that term or provision will be inoperative and void to the extent necessary to comply with law, but the remaining terms will nevertheless continue in full force and effect and the rights and obligations of the parties will be construed as if the Agreement did not contain that particular term held to be invalid, void or unenforceable.
16.7 The Agreement will be governed and construed in all respects in accordance with the laws of England and Wales and the parties submit to the exclusive jurisdiction of the courts of England and Wales.
16.8 A person who is not a party to the Agreement will have no right to enforce any of its terms.
16.9 No failure or delay by EF to exercise any right, power or remedy will operate as a waiver of it nor will any partial exercise preclude any further exercise of the same, or of some other right, power or remedy.