- Definitions and Interpretations
- Basis of the Contract
- Grant of Rights
- Author's Obligations
- Author's Acknowledgements
- Author's Warranties and Indemnity
- LIMITATION OF LIABILITY
- Data Protection
- Payment of Fees and Printing Costs
- Charges on a Time and Materials Basis
- Publisher Reservations
- Invoicing and Payment
- Statement of Accounts
- Self-Billing Agreement
- Miscellaneous Obligations of the Publisher
- Moral Rights
1. Definitions and Interpretations
In these Conditions, except where a different interpretation is clear from or necessary in the context, the
following terms shall have the following meanings:
- Author means the person or firm who purchases the Goods and/or Services from the Publisher;
- Account Period means any of the 6 month periods ending on the following dates in each year: 30 June and 31 December, unless otherwise agreed in writing;
- Associated Services means the services set out in the Publishing Estimate;
- Bulk Printing means the printing of the Work other than by POD at the rates specified in the Publishing Estimate;
- Business Day means a day other than a Saturday, Sunday or public holiday in the United Kingdom when banks in London are generally open for business;
- Conditions means these terms and conditions as amended from time to time;
- Contract means the contract between the Publisher and the Author for the supply of Goods and/or Services in accordance with these Conditions;
- Commencement Date has the meaning set out in clause 2.4;
- Deposit means the deposit set out in the Publishing Estimate payable by the Author to the Publisher;
- Digital Archive and Management Fee is a fee payable to the Publisher on an annual basis to keep the Work on the POD Distributor's database and capable of being printed on demand;
- Fees means the fees payable by the Author to the Publisher for the Services;
- Goods means the books and ebooks of the Work and other goods supplied to the author as set out in the Publishing Estimate;
- ISBN means the International Standard Book Number assigned to each edition and variation (except reprintings) of a book and issued by Nielsen Book Services Ltd;
- Licence means non-exclusive licence to print, publish, distribute and sell the Work in any part of the Territory during the Term in the formats set out in the Publishing Estimate;
- Order means the Author's order for the supply of Goods and/or Services, or the Author's written instruction to the Publisher to proceed on the basis of the Publishing Estimate as the case may be;
- POD means print on demand digital printing technology and business process in which copies of the Work are not printed until an order has been received, allowing books to be printed singly, or in small quantities;
- POD Distributor means The Self Publishing Studio or such other distributor as the Publisher shall determine;
- Printing Costs means the actual cost of production of POD and or Bulk Printing (as the case may be) copies of the Work;
- Publishing Estimate means the estimate given by the Publisher to the Author as updated from time to time;
- Publisher means The Self Publishing Studio Books a company whose registered office is at Studio 12, Old Bank House, Odiham, Hants RG29 1LF, England;
- Publisher's Website means the website theselfpublishingstudio.co.uk;
- Retail Price means the recommended retail price for the Work agreed between the Author and the Publisher;
- Release Fee means the fee of £150 plus VAT payable to the Publisher for the release of artwork for book production of the Work (including without limit ebook production) in the circumstances set out in clause 18;
- Services means the services, including the deliverables, supplied by the Publisher to the Author as set out in the Publishing Estimate;
- Shipping Costs means the costs of shipping unsold stock of the books of the Work or other Goods to the Author or an address notified to the Publisher by the Author;
- Submission Guidelines means the submission guidelines on the Publisher's Website theselfpublishingstudio.co.uk as they are amended from time to time;
- Term means the full contract period, including all renewals, reversions, extensions and revivals of such period under the laws in force in each and every part of the Territory, subject to earlier termination pursuant to clause 18;
- Territory means the world;
- Third Party Work means any work used in or forming part of the Work of which the Author is not the sole author;
- Work means the work details of which are set out in the Publishing Estimate.
In these Conditions, unless the context requires otherwise:
- words and expressions that are defined in the Copyright, Designs and Patents Act 1988 shall bear the same meanings in these Conditions;
- words importing the singular number shall include the plural and vice versa;
- references to persons shall include bodies of persons, whether corporate or incorporate;
- words importing the whole shall be treated as including a reference to any part of the whole.
- Any reference in these Conditions to any statute or statutory provision shall be construed as referring to that statute or statutory provision as it may from time to time be amended, modified, extended, re-enacted or replaced (whether before or after the date of these Conditions) and as including all subordinate legislation from time to time made under it.
- The expression 'copyright' shall include the entire copyright, design right, rental right, right to authorise or prohibit lending, database right, right of communication to the public and distribution right subsisting now or created at any time during the Term under the laws of the United Kingdom and all analogous rights subsisting now or created at any time during the Term under the laws of each and every other jurisdiction throughout the Territory.
- References in these Conditions to clauses, schedules and exhibits are to clauses of and schedules and exhibits to these Conditions, except where otherwise expressly stated.
- Headings are used in these Conditions for the convenience of the parties only and shall not be incorporated into these Conditions and shall not be deemed to be any indication of the meaning of the clauses, schedules or exhibits to which they relate.
2. Basis of the Contract
- The Author has written the Work and is the owner of the copyright in it.
- The Author has agreed to grant to the Publisher the non-exclusive licence, and the Publisher has agreed to publish the Work, upon and subject to the following terms and conditions with the intention of producing, printing, distributing and selling books and ebooks of the Work on behalf of the Author.
- The Order constitutes an offer by the Author to purchase Goods and/or Services in accordance with these Conditions.
- The Order shall only be deemed to be accepted when the Publisher issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
- Any samples, drawings, descriptive matter or advertising issued by the Publisher and any descriptions of the Goods or illustrations or descriptions of the Services contained in the Publisher's brochures or the Publisher's Website are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract or have any contractual force.
- These Conditions apply to the Contract to the exclusion of any other terms that the Author seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
- Any quotation or estimate given by the Publisher shall not constitute an offer, and is valid for a period of 30 days from its date of issue unless otherwise notified.
- All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
3. Grant of Rights
- In consideration of the mutual obligations of the parties under these Conditions, the Author, with full title guarantee, grants the non-exclusive licence to the Publisher for the Term.
4. Author's Obligations
The Author shall:
- pay the Deposit to the Publisher;
- pay the Fees and the Printing Costs in accordance with clause 11;
- where appropriate pay the Release Fee and any Shipping Costs;
- ensure that the terms of the Order and any specification submitted by the Author are complete and accurate;
- co-operate with the Publisher in all matters relating to the Services;
- submit the text of the Work by email attachment or on CD or via an online file sending service as per the Submission Guidelines;
- submit a final version of the Work as a single Microsoft Word document (or in a format compatible with Microsoft Word), together with all illustrative material in a form suitable for reproduction as specified in the Submission Guidelines and any preface, introduction, index and other material to be included in the Work, proofread (unless otherwise agreed) and ready in the Publisher's reasonable opinion for publication;
- submit any images in accordance with the Submission Guidelines;
- assume liability for the content of all material supplied to the Publisher (whether in relation to the Work or otherwise).
5. Author's Acknowledgements
The Author acknowledges that:
- no editorial or development work will be carried out on the Work unless previously discussed and agreed and set out in the Publisher's Estimate or otherwise in writing;
the Publishing Estimate assumes that:
- only one set of amendments to the Work are allowed for within a publishing package;
- re-writing or on-going amendments after the first proof of the Work will incur additional costs;
- images submitted in formats other than those set out in the Submission Guidelines which require reformatting will incur additional costs over and above any prices and costs set out in the Publishing Estimate;
- the prices and costs set out in the Publishing Estimate assume that books and ebooks of the Work will be produced, printed, published, distributed and sold (Packaged Services) by or through the Publisher. In the event that the Author elects or decides not to use the Publisher for the provision of any of the Packaged Services, the Publisher shall be entitled to increase the prices and costs set out in the Publishing Estimate with retrospective effect and the Author shall be liable to pay any such increase;
- if the Author requires the return of any hard copy materials such as manuscripts, illustrations, photographs or other images, the Author will send the Publisher a clear instruction for return in addition to a self-addressed envelope in the size specified by Royal Mail, and with adequate return postage stamps;
- the Author will on payment of the Printing Costs own 100% of the books printed. The Author will provide to the Publisher with six copies of any relevant edition of the book free of charge for the purposes of complying with the legal deposit requirements of the Legal Deposit Libraries Act 2003 (as amended);
- the Publisher will retain 15% of the Recommended Retail Price from each book or ebook sold (whilst the Publisher may usually waive its right to this payment in respect of books that the Publisher supplies to the Author for their own private sale, the Publisher's reserves the right to assert its right at any time if the number of books requested by the Author for their own private sale is in the Publisher reasonable opinion disproportionately large relative to the number of POD or Bulk Printing books ordered);
- the Author must account to the tax authorities in their jurisdiction in respect of any VAT or similar tax payable;
- the paperback edition will be printed using POD or if otherwise agreed Bulk Printing;
- promotion and marketing of the Work is the sole responsibility of the Author, and is undertaken at the Author's expense;
- ISBNs allocated to the editions and variations of any book or ebook of the Work produced by the Publisher are non transferable;
- the Deposit is non-refundable once the Publisher has commenced the Services. Where the Publisher refunds the Deposit the Publisher may deduct from the Deposit any reasonable costs or expenses including bank charges incurred by the Publisher in respect of the Services or the Work;
- shortly before the first anniversary of the book's first publication date the Digital Archive and Management Fee will become due which will be payable by the Author;
- if the printed book of the Work goes out of print due to the Author's failure to pay the Digital Archive and Management Fee the ebook of the Work will cease to be distributed by the Publisher and these Conditions may at the Publisher's election be terminated in accordance with clause 18.1.2.
- The Author shall at his own expense obtain from the copyright owner written permission (which he shall supply to the Publisher on request) to include and reproduce in the Work any part of the typescript or illustrative material the copyright of which is not his own, in all languages, editions and formats that the Publisher intends to produce, publish or license under these Conditions.
- The Publisher shall produce and supply the Work and where applicable any Associated Services in accordance with the Publishing Estimate or as otherwise agreed in writing.
- The Author will retain all rights to their own work including all copyright, trademarks, derivative rights and other intellectual property associated with the Work.
- Subject to clause 7.2.2, the Publisher shall, unless otherwise mutually agreed, or unless prevented from doing so by industrial action or disputes or by other circumstances beyond its control, publish the Work on behalf of the author as set out in clause 2.
- The Publisher reserves the right to decline to publish the Work if the Publisher has reason to believe the Work incites racial hatred, is illegal or defamatory, or is not the original work of the Author (unless the Author can provide such evidence as the Publisher considers satisfactory that the written consent of the originator (of any work forming part of the Work which is not the original work of the Author) to use their work).
8. Author's Warranties and Indemnity
The Author warrants to the Publisher that:
- the Author is the sole owner of the Rights and has full power to enter into these Conditions and to give the warranties and indemnity contained in these Conditions;
- the Author is the sole author of the Work, which is original in him; or
- to the extent that the Author is not the sole author of the Work the Author has obtained the prior written consent of the originator (or their successors in title) of any Third Party Work to use the relevant Third Party Work in the Work;
- the Work contains nothing which is obscene, blasphemous, libellous or which would, if published, constitute a breach of contract, of confidence or of any right of privacy or an offence under the Official Secrets Acts 1911 to 1989, incite racial hatred or the publication of which is for any other reason unlawful, and the exploitation of the Rights by or under licence from the Publisher will not infringe the copyright or any other rights of any third party;
- all statements in the Work purporting to be facts are true, and any recipe, formula or instruction contained in it will not, if followed accurately, cause any injury illness or damage to the user;
- any photographs or films contained in the Work that were commissioned for private and domestic purposes by anyone other than the Author were either made before the 1 August 1989, or if made on or after the 1st August 1989, the Author shall obtain and deliver to the Publisher an irrevocable and unconditional written waiver of the right of privacy conferred by the Copyright, Designs and Patents Act 1988 Section 85 and of any similar right under the laws of each jurisdiction in the Territory outside the United Kingdom from the person who commissioned the taking of such photographs or the making of such films.
- The Author indemnifies and shall keep the Publisher indemnified against all actions, claims, proceedings, costs and damages (including any damages or compensation paid by the Publisher to compromise or settle any claim), and all legal costs or other expenses and losses, including (but not limited to) losses of profits arising out of any breach or alleged breach of any of the above warranties or out of any claim by a third party based on any facts which, if substantiated, would constitute such a breach.
- The Author shall be liable to pay to the Publisher, on demand, all reasonable costs, charges or losses sustained or incurred by the Publisher (including any direct, indirect or consequential losses, loss of profit and loss of reputation, and loss or damage to property) that arise directly or indirectly from the Author's fraud, negligence, failure to perform or delay in the performance of any of its obligations under these Conditions, subject to the Publisher confirming such costs, charges and losses to the Author in writing.
9. LIMITATION OF LIABILITY
Nothing in these Conditions limits or excludes the Publisher's liability for:
- death or personal injury caused by its negligence;
- fraud or fraudulent misrepresentation; or
- breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
Subject to clause 9.1, the Publisher shall not be liable to the Author, whether in contract, tort
(including negligence), for breach of statutory duty, or otherwise, arising under or in connection with
these Conditions for:
- loss of profits;
- loss of sales or business;
- loss of agreements or contracts;
- loss of anticipated savings;
- loss of or damage to goodwill;
- loss of use or corruption of software, data or information;
- any indirect or consequential loss.
- Subject to clause 9.1 and clause 9.2, the Publisher's total liability to the Author, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with these Conditions shall be limited to the amount received by the Publisher in respect of the Work as at the date the claim was notified to the Publisher.
- The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from these Conditions.
- The Publisher does not guarantee that the Publisher's Website, or any content on it, or the online bookshop will always be available or be uninterrupted. Access to the Publisher's Website or the online bookshop is permitted on a temporary basis. The Publisher may suspend, withdraw, discontinue or change all or any part of the Publisher's Website or the online bookshop without notice. The Publisher will not be liable to the Author if for any reason the Publisher's Website or the online bookshop is unavailable at any time or for any period.
- Delivery of an order shall be completed when the Publisher or its agents deliver the consignment of books to the address specified by the Author or from when the Author or a carrier organised by the Author collects them from the Publisher and the consignment of books will be the Author's responsibility from that time.
- Where the Publisher or its agents deliver a consignment of books to the Author, the Author shall ensure that someone is available at the Author's address to take delivery of the consignment of books. If there is no one at the Author's address at the agreed time, the Author will be responsible for any additional costs in rearranging the delivery of the consignment of books.
10. Data Protection
- The Author acknowledges and agrees that details of the Author's name, address and personal data will be processed by and on behalf of the Publisher in connection with the services provided to the Author under these Conditions.
11. Payment of Fees and Printing Costs
- The Author shall pay to the Publisher the Fees and the Printing Costs in accordance with this clause 11.
- The Printing Costs do not include delivery or shipping charges. Delivery or shipping charges will be advised to the Author prior to delivery or shipping and are payable by the Author.
12. Charges on a Time and Materials Basis
The charges for any Services provided by the Publisher to or for the benefit of the Author at the Author's
request but not set out in the Publishing Estimate or where a specific price, rate or fee has not been agreed
shall be determined on a time and materials basis:
- the charges shall be calculated in accordance with the Publisher's standard daily fee rates from time to time;
- the Publisher's standard daily fee rates for each individual person are calculated on the basis of an eight-hour day from 9.00 am to 5.30 pm worked on Business Days.
13. Publisher Reservations
The Publisher reserves the right to:
- increase its standard daily fee rates for the charges for the Services, provided that such charges cannot be increased more than once in any twelve month period. The Publisher will give the Author written notice of any such increase one month before the proposed date of the increase. If such increase is not acceptable to the Author, it shall notify the Publisher in writing within one month of the date of the Publisher's notice and the Publisher shall have the right without limiting its other rights or remedies to terminate the Contract by giving one month's written notice to the Author; and
increase the Fees and or the Printing Costs, by giving notice to the Author at any time before
delivery, to reflect any increase in the cost of the Goods or Services to the Publisher that is due to:
- any factor beyond the control of the Publisher (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other production or third party costs);
- any request by the Author to change the delivery date(s), quantities or types of Goods or Services ordered, or the specification of the Goods or Services; or
- any delay caused by any instructions of the Author in respect of the Goods or Services or failure of the Author to give the Publisher adequate or accurate information or instructions in respect of the Goods or Services.
14. Invoicing and Payment
- In respect of Services, the Publisher shall invoice the Author on the Commencement Date in advance.
The Author shall pay each invoice submitted by the Publisher:
- on the date of the invoice or as otherwise agreed in writing;
- 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.
- If the Author fails to make any payment due to the Publisher under the Contract by the due date for payment, then the Publisher may terminate the Contract immediately without liability to the Author and otherwise in accordance with clause 18.1.2.
- In respect of Printing Costs, the Publisher shall invoice the Author in accordance with clause 15.
- The Publisher may, without limiting its other rights or remedies, set off any amount owing to it by the Author against any amount payable by the Publisher to the Author.
15. Statement of Accounts
The Publisher agrees with the Author that:
- it will prepare a statement of the number of books and ebooks of the Work sold and the average price for each Account Period together with a self-billing invoice in respect of the same.
it will send to the Author the payment due to the Author as set out in the self-billing invoices within
3 calendar months of the end of the relevant Account Period, unless:
- the amount due is less than £30.00, in which case the payment may at the Publisher's discretion be held over until the amount due to the Author is more than £30.00; or
- the Publisher has not received payment in cleared funds for any underlying sale to which the relevant invoice relates.
16. Self-Billing Agreement
The Publisher agrees to:
- issue self-billed invoices for all supplies made by the Author to the Publisher for the Term;
- complete self-billed invoices showing the Author's name, address and (where the Author is registered for VAT) VAT registration number together with all other details that constitute a full VAT invoice;
- inform the Author if the issue of self-billed invoices will be outsourced to a third party;
- make a new self-billing agreement in the event that their VAT registration number changes.
The Author agrees to:
- accept invoices raised by the Publisher on their behalf for the Term;
- not raise sales invoices for the transactions covered by this agreement (whether or not the Author is registered for VAT);
notify the Publisher if the Author:
- becomes registered for VAT;
- changes their VAT registration number;
- ceases to be VAT registered;
- or transfers all or part of their business;
- to make a new self-billing agreement in the event that their VAT registration number changes.
- The Publisher and the Author agree to review this self-billing agreement set out in this clause 16 at least annually.
17. Miscellaneous Obligations of the Publisher
The Publisher warrants, undertakes and agrees with the Author:
to ensure that all copies of the Work published by the Publisher bear on the reverse of the title page the symbol © accompanied by the name of the Author and the year of first publication of the Work;
Inclusion of the Author's name
to include the Author's name prominently on the front cover, jacket, spine and title page of all copies of the Work published by the Publisher and in all publicity and advertisements for the Work.
- Copyright protection
Termination by notice
The Author may, by summary written notice to the Publisher, terminate these Conditions if any of the
following shall happen:
- if the Publisher fails to publish the Work;
- if the Publisher is in breach of any of its other obligations under these Conditions and, in the case of a breach capable of being remedied, fails to remedy such breach within a reasonable period of being requested by the Author in writing to do so;
- if the Publisher goes into liquidation (save for the purpose of and immediately followed by a reconstruction or amalgamation while solvent), or if a receiver administrative receiver, receiver and manager or administrator is appointed in respect of the whole or any part of its assets, or if the Publisher makes an assignment for the benefit of or a composition with its creditors generally, or if the Publisher convenes a meeting for the purpose of considering a resolution to apply for the appointment of an administrator or to wind the Publisher up, or if the Publisher threatens to do any of these things, or if any similar occurrence under any jurisdiction affects the Publisher.
The Publisher may, by summary written notice to the Author, terminate these Conditions if any of the
following shall happen:
- if the Author fails to pay the Fees or the Printing Costs when due;
- if the Author fails to pay the Digital Archive and Management Fee in respect of books or ebooks of the Work;
- if the Author is in breach of any of its other obligations under these Conditions and, in the case of a breach capable of being remedied, fails to remedy such breach within a reasonable period of being requested by the Publisher in writing to do so;
- if the Author being a body corporate goes into liquidation (save for the purpose of and immediately followed by a reconstruction or amalgamation while solvent), or if a receiver administrative receiver, receiver and manager or administrator is appointed in respect of the whole or any part of its assets, or if the Author makes an assignment for the benefit of or a composition with its creditors generally, or if the Author convenes a meeting for the purpose of considering a resolution to apply for the appointment of an administrator or to wind the Author up, or if the Author threatens to do any of these things, or if any similar occurrence under any jurisdiction affects the Author;
- if the Author being a natural person: is deemed either unable to pay their debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986; or is the subject of a bankruptcy petition or order; or dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation;
- Either party may terminate these Conditions by giving to the other not less than one months' prior written notice
- The Author may, by summary written notice to the Publisher, terminate these Conditions if any of the following shall happen:
Consequences of termination
- The Author shall immediately pay to the Publisher: all of the Publisher's outstanding unpaid invoices in respect of fees and printing books, and interest and, in respect of any Goods or Services supplied but for which no invoice has been submitted, the Publisher may submit an invoice, which shall be payable immediately on receipt.
- On the expiry or termination of these Conditions, all rights granted under non-exclusive licence to the Publisher under its terms shall automatically and immediately revert to the Author absolutely. The Author acknowledges that the Publisher has no control over third party website content. Third party websites of retailers and wholesalers who offer the Work for sale may continue to show the Work as in stock to the extent that they hold stock after termination of these Conditions. =
- The Publisher shall on payment of the Shipping Costs and any other outstanding amounts owed to the Publisher, and at the Author's expense, deliver to the Author as soon as reasonably practicable all remaining printed copies of the Work together with the ePub and Mobi files of the Work.
- If the Author does not pay the Shipping Costs within three month of the date of termination of the Contract, the Author will be deemed to have donated all unsold stock of the Work or other Goods to a charity of the Publisher's choice.
- If the Author does not pay the Release Fee within six months of the date of termination of the Contract, the Publisher cannot guarantee that any artwork for book production of the Work (including without limit ebook production) will continue to be securely stored in the Publisher's archives.
- Termination or expiry of these Conditions shall not affect:
- the rights of the Author to money accrued due to the Author in respect of the Publisher's sales and exploitation of the Work;
- any 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 Conditions which existed at or before the date of termination or expiry.
19. Moral Rights
Assertion of moral right of paternity
The Author asserts to the Publisher, its assignees, its licensees and its successors in title his moral right to be identified as the author of the Work in accordance with the Copyright, Designs and Patents Act 1988 Sections 77 and 78.
Notice of assertion of moral right of paternity
The Publisher shall procure that every copy of the Work published by it in the United Kingdom shall bear the following notice on the reverse of the title page: 'The right of [name of author] to be identified as the author of this work has been asserted in accordance with the Copyright, Designs and Patents Act 1988 Sections 77 and 78.'
- If either party is prevented from fulfilling its obligations under these Conditions by reason of any supervening event beyond its control (including, but not limited to, war, national emergency, flood, earthquake, strike or lockout (other than a strike or lockout induced by the party so incapacitated) or illness), the party unable to fulfil its obligations ('the Incapacitated Party') shall immediately give notice of this to the other party and shall do everything in its power to resume full performance of its obligations as soon as possible.
- Subject to compliance with the requirements of clause 20.1.1, the Incapacitated Party shall not be deemed to be in breach of its obligations under these Conditions during the period of incapacity, and the other party shall continue to perform its obligations under these Conditions save only in so far as they are dependent on the prior performance by the Incapacitated Party of obligations which it cannot perform during the period of incapacity.
- If the period of incapacity exceeds 6 months, then these Conditions shall automatically terminate, unless the parties first agree otherwise in writing.
- These Conditions contains the whole agreement between the parties and supersedes and extinguishes any prior written or oral agreement, promises, assurances, warranties, representations and understandings between them in relation to its subject matter.
- Each party acknowledges that in entering into these Conditions 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 these Conditions.
- Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Conditions.
- Nothing in this clause shall limit or exclude any liability for fraud.
- No oral explanation or oral information given by either party shall alter or affect the interpretation of these Conditions.
Reservation of rights
All rights not specifically and expressly granted to the Publisher by these Conditions are reserved to the Author.
Joint and several
All Conditions on the part of either of the parties which comprise more than one person or entity shall be joint and several.
Proper law and jurisdiction
These Conditions shall be governed by English law in every particular, including formation and interpretation, and shall be deemed to have been made in England, and subject to clause 20.6, the parties agree to submit to the exclusive jurisdiction of the English courts.
- If either party is of the opinion that the other party to these Conditions is in breach of any material condition or obligation pursuant to these Conditions (including, without limitation, any obligation to pay money), then the parties shall use all reasonable endeavours to resolve the matter to their mutual satisfaction by means of the dispute resolution procedure set out in clauses 20.6.2 to 20.6.4 below.
- The parties shall endeavour in good faith to resolve any dispute or claim in relation to these Conditions by means of good faith negotiations, which shall take place directly between a senior executive of the Publisher and the Author, each of whom shall have full authority to settle the dispute. If the dispute is not resolved within six weeks from commencement of good faith negotiations, the parties shall endeavour in good faith to resolve the dispute by mediation in accordance with the Centre for Effective Dispute Resolution, London ('CEDR') Model Mediation Procedure. Unless otherwise agreed between the parties within fourteen days of notice of the dispute, the mediator will be nominated by CEDR. To initiate mediation a party must give notice in writing ('ADR notice') to the other party to the dispute requesting mediation. A copy of the ADR notice should be sent to CEDR. Unless otherwise agreed, the mediation will start not later than twenty eight days after the date of the ADR notice.
- All negotiations in relation to the matters in dispute shall be strictly confidential and shall be without prejudice to the rights of the parties in any future legal proceedings.
- No party may commence any court proceedings in relation to any dispute arising out of these Conditions until it has attempted to settle the dispute by mediation and either the mediation has terminated or the other party has failed to participate in the mediation, provided that the right to issue proceedings is not prejudiced by a delay.
Death of the Author
Upon the death of the Author, any payments due or becoming due under these Conditions from the Publisher to the Author shall be paid to the Author's personal representatives or successors in title.
- Any notice, consent or the like (in this clause 20.8 referred to generally as 'notice') required or permitted to be given under these Conditions shall not be binding unless in writing and may be given personally or sent to the party to be notified by prepaid first-class post (or by airmail post if notice is to be sent from the United Kingdom to anywhere outside the United Kingdom or vice versa) at its address as set out above or as otherwise notified in accordance with this clause 20.8, or by email to the current and correct email address of the intended recipient.
- Notice given personally shall be deemed given at the time of its delivery.
- Notice sent by post in accordance with this clause 20.8 shall be deemed given at the commencement of business of the recipient on the second Business Day following its posting, unless sent from the United Kingdom to anywhere outside Europe or vice versa, in which case it shall be deemed given at the commencement of business of the recipient on the seventh Business Day following its posting.
- Notice sent by email in accordance with this clause 20.8 shall be deemed given at the time of its actual transmission, provided that the sender receives a receipt for the email message from the recipient.
These Conditions may not be modified except by an instrument in writing signed by both of the parties or their duly authorised representatives.
The failure by either party to enforce at any time or for any period any one or more of the terms or conditions of these Conditions shall not be a waiver of them, nor of the right at any time subsequently to enforce all terms and conditions of these Conditions.
If any provision of these Conditions is declared by any judicial or other competent authority to be void, voidable, illegal or otherwise unenforceable, or if indications of this are received by either of the parties from any relevant competent authority, the parties shall amend that provision in such reasonable manner as achieves the intention of the parties without illegality, or at the discretion of the Publisher, that provision may be severed from these Conditions, and in either event, the remaining provisions of these Conditions shall remain in full force and effect.
Survival of terms
The warranties and indemnities contained in these Conditions and the provisions for payment of and accounting shall survive the termination or expiry of these Conditions.
To the extent that the Author is registered for VAT all sums payable to the Author under these Conditions are exclusive of VAT, which shall, where applicable, be paid in addition at the rate in force at the due time for payment, subject to the Author either supplying a VAT invoice to the Publisher or informing the Publisher of his VAT registration number.
Rights and remedies cumulative
All rights and remedies available to the parties under the terms of these Conditions and under the general law shall be cumulative, and no exercise by either of the parties of any such right or remedy shall restrict or prejudice the exercise of any other right or remedy granted by these Conditions or otherwise available to it.
- The terms and existence of these Conditions are confidential to the parties.
- Each party agrees to maintain secret and confidential all confidential information obtained from the other, both pursuant to these Conditions and before and in contemplation of it (including, but not limited to, information concerning the existence and terms of these Conditions), and all other information that it may acquire from the other in the course of these Conditions, and to respect the other’s proprietary rights in such material, and to use the same exclusively for the purposes of these Conditions, and to disclose the same only to its professional advisers and those of its employees, officers, agents and representatives pursuant to these Conditions (if any) to whom and to the extent that such disclosure is reasonably necessary for the purposes of these Conditions (and which employees, officers, agents and representatives shall be made aware of and required to acknowledge these confidentiality arrangements in writing).
The obligation set out in clause 20.15.2 shall not apply to any information which:
- before its receipt from one party, was lawfully in the possession of the other and at its free disposal; or
- is subsequently disclosed to the recipient party without any obligations of confidence by a third party who has not derived it directly or indirectly from the other party; or
- is or becomes generally available to the public through no act or default of the recipient party or its agents, employees, officers and representatives; or
- is required by law to be disclosed.
These Conditions shall bind and inure to the benefit of the parties and their respective permitted assigns, personal representatives and successors in title.
Nothing in these Conditions shall be deemed to constitute a partnership between the parties, nor the relationship of employer and employee under a contract of service, nor the relationship of principal and agent.
Nothing contained in these Conditions is intended to be enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any third party.