1.1 “Affiliate” means in relation to either party, any entity that controls, is controlled by or is under common control with a party; the terms “control” and “controlled” meaning ownership of at least 50% of the voting shares or the ability to direct the management of the relevant entity.
1.2 “Contract” means (together) these terms, Personal Data Agreement (if any) Letter of Engagement (if any), Quote (if any) or any other communication as set out at clause 4.2.2.
1.3 “Personal Data Agreement” means the agreement relating to personal data signed between the parties prior to the commencement of the provision of the Goods or Services;
1.4 “Customer” means the entity set out above, from whom DFIN accepts instructions (either on its own behalf or on behalf of a Customer) to perform the Services and to supply the Goods (and from whom DFIN will be entitled to recover payment for such Goods and Services). If DFIN accepts Orders from an Affiliate, representative, Customer, agent or adviser of the Customer, DFIN nevertheless acts only for the Customer and such Affiliate, representative, Customer, agent or adviser is not (and may not be implied as being) a Customer.
1.5 “Customer Personal Data’’ means all information and data (including texts, documents, drawings, diagrams, images or sounds) owned by, licensed to (other than by the Supplier) or relating to the Customer and/or any of its customers, which is in each case generated by, supplied to, or is otherwise retained by, DFIN pursuant to or in connection with this agreement;
1.6 “Data Protection Legislation’’ means the Data Protection Act 2018 and all other applicable law, from time to time, relating to the processing of personal data and privacy including (where applicable) the GDPR and the UK-GDPR;
1.7 “DFIN” means Donnelley Financial Solutions UK Limited, company registered number 2669185, registered office 138 Cheapside, London, EC2V 6BJ.
1.8 “GDPR’’ means the General Data Protection Regulation (EU) 2016/679 of the European Parliament.
1.9 “Goods” means the articles or any part thereof supplied by or on behalf of DFIN in the performance of the Services.
1.10 “Order” means an order (oral or in writing) placed by or on behalf of the Customer for supply of Goods and Services by DFIN.
1.11 “Quote” means the price quote as may have been given to the Customer by DFIN either in hard copy or online
1.12 “Services” means printing and other services to be performed by DFIN pursuant to the Contract including any other services required by the Customer from time to time and agreed to be performed by or on behalf of DFIN.
1.13 “UK-GDPR” means the GDPR as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018.
- COMMENCEMENT OF CONTRACT
This Contract will be deemed to come into force and (irrespective of whether the Customer has signed a Letter of Engagement) the Customer is deemed to have accepted the Contract on the earlier of: (a) the Customer’s receipt DFIN’s written acceptance and confirmation of the Order; or (b) when DFIN commences performance of the Services. This Contract is to the exclusion of any terms or conditions stipulated, incorporated or referenced by or on behalf of the Customer whether in an Order, on any correspondence or other documentation or in any negotiations.
- INTELLECTUAL PROPERTY
3.1 The Customer acknowledges that it is providing copy, data, scripts, photographs, layout, typesetting and typographical arrangement, format, logos and other materials (“Customer Materials”) in order that DFIN may deliver Goods and Services. The Customer warrants that it has all rights to provide the Customer Materials to DFIN and that the Customer Materials do not infringe the copyright or other intellectual property rights of any third party, are not defamatory or obscene, are not illegal or unlawful, scandalous or libelous or contravene any regulatory requirements (together the “Breaches”).
3.2 The Customer hereby fully indemnifies and holds harmless DFIN and its Affiliates, officers, employees, agents and distributors against all claims, liabilities, fines, costs, expenses, damages or losses arising out of the publication, distribution and use by DFIN or the Customer (or their respective Affiliates) of the Customer Materials (or other output of the Services) or as a result of any work done by or on behalf of DFIN for the Customer which contains Breaches.
4.1 All Quotes given by DFIN for the Services will remain fixed for a period of 30 days subject to DFIN’s right to vary any such Quote in the event of an error or omission. Thereafter unless the Quote is specifically referred to in writing as a firm Quote the quoted price may be increased by DFIN to take into account market conditions at the date of actual performance of the Services and the Customer will pay such increased price to DFIN. Without prejudice to their generality the words “market conditions” will include any increase in the cost of labour, materials, services, delivery or transport. Unless otherwise stated, all prices are exclusive of Value Added Tax.
4.2 DFIN’s fees for the Services are either:
4.2.1 as set out in the Quote; (or if no quote has been given)
4.2.2 as may have been communicated to the Customer orally or by email. Any work undertaken by DFIN outside the scope of the Services will be charged on the basis of the applicable rates as either outlined in the Quote under “Supplementary Unit Costs” or as may have be communicated to the Customer orally or by email. All payments shall be made in £GBP to DFIN in UK.
DFIN will be entitled to sub-contract the fulfillment of this Contract or any part thereof.
6.1 DFIN will arrange for the delivery of the Goods in the manner as specified in a Quote or as otherwise agreed with the Customer. In any event, delivery to the Customer will occur (and the Services will be deemed completed and DFIN will be entitled to submit its invoice) upon (i) delivery of the Goods into the mail system or hand-over of the Goods by DFIN (or its agents) to a courier; or (ii) loading at DFIN’s (or its agent’s) place of production upon a delivery vehicle.
6.2 DFIN will use reasonable endeavours to meet any agreed timescales for delivery. If delivery by such date is not achieved, with DFIN having used such endeavours, DFIN and its Affiliates will not be liable to the Customer for any loss or damage whatsoever resulting from such delayed delivery.
DFIN reserves the right to charge additional fees for author’s corrections, including alterations in style and the cost of additional proofs necessitated by such corrections. Proofs of all work may be submitted for the Customer’s approval and in that event, no liability will be accepted by DFIN or its Affiliates for any errors not corrected by the Customer and any Goods re-manufactured due to such errors will be at the cost of the Customer.
- TITLE AND RISK
The Goods will be at the Customer’s risk immediately on delivery as specified in clause 6.1. Title in the Goods will pass to the Customer on delivery as specified in clause 6.1.
- STANDING MATTER
All rights and physical property in any materials manufactured and used by or on behalf of DFIN in the production of the Goods will remain the property of DFIN.
- WARRANTIES AND LIMITATIONS OF LIABILITY
10.1 DFIN warrants that the Goods will be manufactured in accordance with any Customer specifications as appear in an accepted Order and that the Goods will be of satisfactory quality. All other warranties or conditions statutory or otherwise (including conditions as to quality or fitness for any particular purpose) whether express or implied are hereby excluded.
10.2 DFIN’s liability (whether under this Contract, in tort (including negligence), for breach of statutory duty or otherwise) is only to the Customer.
10.3 DFIN’s liability to the Customer and the Customer’s only remedy for any loss or damage incurred by the Customer arising from breach of the warranties in clause 10.1 will, at DFIN’s option, be limited to the reprinting of the Goods by DFIN or the refund of the price paid for such Goods and Services.
10.4 DFIN and its Affiliates do not exclude liability (if any):
10.4.1 for breach of the obligations in respect of title arising under section 12 Sale of Goods Act 1979 or section 2 Sale and Supply of Goods and Services Act 1982;
10.4.2 for personal injury or death resulting from negligence;
10.4.3 for any matter for which it would be illegal to exclude or to attempt to exclude liability; or
10.4.4 for fraud.
10.5 DFIN and its Affiliates will not be liable to the Customer for
10.5.1 any losses of an indirect, consequential, special or unforeseeable nature;
10.5.2 lost profits, damage to the Customer’s and its Affiliates’ reputation or depletion of the Customer’s and its Affiliates’ goodwill;
however, caused by the negligence, breach of contract, breach of statutory duty or other default of DFIN, its agents, subcontractors or Affiliates or otherwise.
10.6 DFIN’s and its Affiliates’ total aggregate liability to the Customer is (in respect of the performance or contemplated performance of this Contract) no more than twice the amount paid by or on behalf of the Customer in respect of the Goods and Services under this Agreement.
10.7 Should the Services include domestic or international facsimile or other data transmission services, DFIN’s and its Affiliates’ liability to the Customer for any loss or damage incurred by the Customer or its Customer due to or arising from any failure or delay in the performance of the facsimile transmission services will be limited to a cancellation of DFIN’s charges for such transmission service. In no case will DFIN or its Affiliates be liable to the Customer or to third parties for any loss of sales, advertising revenue or profit or of any damage, injury or expense whatsoever arising directly or indirectly from any such failure or delay on the part of DFIN or its subcontractors or Affiliates.
10.8 DFIN will not be liable for any failure to provide the Services in accordance with the provisions of this Contract and will not be liable for any delay in such provision to the extent arising out of any of the following:
10.8.1 errors in data supplied by Customer or data provided by Customer out of sequence;
10.8.2 faulty, damaged, incompatible and incorrect computer data and media supplied by Customer;
10.8.3 the late arrival or non-arrival of data from Customer;
10.8.4 defects in work carried out by the Supplier which Customer has undertaken in writing to check;
10.8.5 errors in specifications, test data or in other material supplied by Customer;
10.8.6 errors, bugs, defects, viruses or design faults in software or equipment supplied by Customer.
- DATA PROTECTION
11.1 For the purposes of this clause 11, "data controller", "data processor", "data subject", "personal data", "processing", and "appropriate technical and organisational measures" have the meanings ascribed to them in Data Protection Legislation.
Data controller and data processor
11.2 Both parties will comply with their obligations under the Data Protection Legislation, in the case of Customer (or the Customer Affiliates, as applicable), as data controller and, in the case of DFIN, as data processor. In particular, DFIN undertakes to:
188.8.131.52 abide by, and procure that its employees, representatives, subcontractors and agents abide by, the Data Protection Legislation; and
184.108.40.206 provide reasonable assistance to Customer and the Customer Affiliates in complying with their respective obligations under Data Protection Legislation in relation to the performance of this Agreement.
11.3 Without limiting the foregoing, DFIN shall:
11.3.1 act only in accordance with Customer's (or the relevant Customer Affiliate's) written instructions with regard to the processing of Customer Personal Data. If DFIN is required to process Customer Personal Data for any other purpose by applicable law, DFIN shall inform Customer of this legal requirement, to the extent permitted to do so by the applicable law;
11.3.2 maintain written records of data processing activities to include all categories of personal data processing activities carried out on behalf of the Customer containing the information prescribed in relation to data processors GDPR, provided that this obligation shall only apply with effect from the date that the GDPR is entered into force (being ts two years and twenty days following its publication in the Official Journal of the European Union) and provided that Customer shall provide DFIN with all relevant information about the personal data that it requires DFIN to process under this Agreement to enable DFIN to maintain such records.;
11.3.3 not transfer such Customer Personal Data and information to a country or territory outside the European Economic Area (the "EEA") without Customer's (or the relevant Customer Affiliate's) express written consent.
11.3.4 ensure appropriate technical and organisational measures are in place to safeguard against any unauthorised or unlawful processing and against accidental, alteration, or disclosure of Customer Personal Data
11.3.5 immediately notify Customer in the event that it receives a request or notice from a data subject exercising his/her rights under the Data Protection Legislation for Customer to resolve and to assist the Customer promptly with all requests and notices which may be received from data subjects. This includes, upon the applicable Customer entity's written request and to the extent permitted by the Data Protection Legislation, where the applicable Customer entity cannot itself access such data, promptly providing at no charge such entity with such copies of any Customer Personal Data in the possession or control of DFIN which are requested by that Customer entity (in the format and medium reasonably required by that entity);
11.3.6 subject always to clause 11, not disclose Customer Personal Data to, or appoint a sub-processor which is, a third party, other than with the prior written agreement of Customer or as otherwise permitted in the Agreement (other than in this clause 11);
11.3.7 DFIN shall promptly carry out any request from a Customer requiring DFIN to amend, transfer, lock or delete any of Customer Personal Data in the possession or control of DFIN; 11.3.8 on the expiry or termination of this Agreement for any reason, immediately cease to use Customer Personal Data and shall arrange for its safe return or destruction as notified by Customer in writing at the relevant time;
11.3.9 promptly notify Customer upon receiving any notice or communication from any data protection supervisory or government body, including the Office of the Information Commissioner, which relates directly or indirectly to the processing of the personal data under this Agreement, for Customer to resolve; and
11.3.10 if any Customer Personal Data in the possession or control of DFIN becomes lost, corrupted, destroyed, altered or rendered unusable for any reason, immediately (but, in any event, thirty six (36) hours of becoming aware):
220.127.116.11 notify Customer of any and all circumstances having led to such incident, as Customer or any data protection supervisory or government body, including the Information Commissioner's Office, may reasonably require to comply with its security breach obligations under the Data Protection Legislation;
11.4 Without limiting the foregoing, the Customer shall;
11.4.1 comply with Data Protection Legislation and ensure that any instructions it issues to DFIN, including the transfer itself, shall comply with Data Protection Legislation; and
11.4.2 have sole responsibility for the accuracy, quality, and legality of Personal Data, and the means by which the Customer acquired Personal Data and shall establish the legal basis for Processing under Data Protection Legislation.
11.4.3 Customer warrants that;
18.104.22.168 the disclosure of Personal Data to DFIN is limited to what is necessary in order for DFIN to perform the Services;
22.214.171.124 such Personal Data is accurate and up-to-date at the time that it is provided to DFIN;
126.96.36.199 it shall provide advance written notice to DFIN of its intention to transfer Personal Data to Service Provider for use in the Service Provision
11.4.4 Customer shall;
188.8.131.52 collect Personal Data in a manner compliant with Data Protection Legislation, including by providing all notices and obtaining all consents as may be requested under Data Protection Legislation in order for DFIN to lawfully and fairly process Personal Data in connection with/arising out of the provision of the Services and as otherwise contemplated by the remainder of the Agreement
184.108.40.206 ensure compliance with the security measures;
220.127.116.11 notify DFIN upon becoming aware that Personal Data has become inaccurate or out of date
- RISK OF DAMAGE TO CUSTOMER’S PROPERTY
12.1 Whilst all typescript, tapes, discs, film, artwork or any other material supplied by the Customer will remain the Customer’s property, any such items which are left in the custody or control of DFIN by the Customer will be so left at the sole risk of the Customer and neither DFIN nor its Affiliates will be responsible for any loss or damage occasioned to them whilst in such custody or control.
12.2 The Customer will at its own expense insure any such items to the full value thereof whilst in the custody or control of DFIN.
13.1 DFIN will have the right to terminate the Contract on written notice to the Customer if:
13.1.1 the Customer defaults in or commits a breach of the Contract or of any other of its obligations to DFIN; or
13.1.2 any distress or execution is levied upon the Customer’s property or assets; or
13.1.3 the Customer makes any arrangement or composition with creditors, or becomes insolvent; or
13.1.4 any petition or receiving order in insolvency is presented or made against the Customer; or
13.1.5 the Customer is a limited company and any resolution or petition to wind up such company’s business (other than for the purpose of amalgamation or reconstruction where the emergent company assumes its obligations) is passed or presented; or
13.1.6 a receiver or administrator of the Customer’s undertaking, property or assets or any part thereof is appointed
or where any of the foregoing are, in DFIN’s opinion, likely to occur.
In addition to any right of lien to which DFIN may by law be entitled, DFIN will be entitled to a general lien on all goods and paper or other material supplied by the Customer which are in DFIN’s possession (even if such goods and paper or other material or some of them have been paid for) as security for the unpaid price of any other Goods delivered to the Customer by DFIN under this or any other Contract. DFIN will be entitled on the expiry of fourteen days’ written notice of non-payment to dispose of such goods and paper or other material on the best commercial terms reasonably obtainable and to apply any proceeds towards such unpaid price.
- SUSPENSION OF DELIVERIES
If the Customer defaults in paying any amount due under this Contract as and when that amount becomes due DFIN will have the right (without prejudice to its other rights and without incurring any liability to the Customer) either to suspend all further deliveries until the default is made good or to cancel the rest of the Order to which that amount relates.
- PARTIAL COMPLETION
In the case of partial completion of an Order, where DFIN has issued an invoice DFIN will be entitled to be paid for all Goods delivered by it under that Order and will be entitled to payment in partin respect of work done by it under that Order (without prejudice to its rights should the Customer be in default).
- PAYMENT OF PURCHASE PRICE
17.1 The price payable for the Services will be paid by the Customer to DFIN at Third floor, 138 Cheapside, London, EC2V 6BJ within 30 days from the date of invoice (in cleared funds into the bank account of DFIN, details of which will be notified from time to time in writing); provided that invoices in respect of postal charges incurred by DFIN on behalf of the Customer will be paid within seven days of the date thereof. Payment within this period will not be deemed to have been received until DFIN has received such payment in cleared funds.
17.2 Satisfactory business references must be given to DFIN if required.
17.3 Without prejudice to DFIN’s other rights (including the right in any event to sue for the price immediately payment becomes due whether or not property in the Goods has passed) DFIN reserves the right to charge interest on the amount of any delayed payment at the rate of 2 per cent over the base lending rate of Barclays Bank plc per month or part of a month until payment in full has been received.
17.4 All payments to be made by the Customer under the Contract will be made in full without any set-off, restriction or condition and without any deduction or withholding for or on account of any counterclaim or any present or future taxes, levies, duties, charges, fees, deductions or withholdings of any nature.
17.5 All sums payable to DFIN under the Contract will become due immediately upon termination of the Contract.
- SELLER’S REMEDIES
No relaxation, forbearance or delay by DFIN in enforcing any of its rights under this Contract will prejudice, affect or restrict the rights of DFIN hereunder, nor will any waiver by DFIN of any breach operate as a waiver of any subsequent or continuing breach of this Contract.
Headings to the clauses in this Contract are for convenience of reference only and will not affect the interpretation thereof.
If any provision in this Contract is found to be invalid, ineffective or unenforceable, the invalidity, ineffectiveness or unenforceability of such provision will not affect any other provision in this Contract, which will remain in full force and effect.
This Contract is personal to the Customer who may not assign, delegate, license, hold on trust or sub-contract all or any of its rights or obligations under the Contract without DFIN’s prior written consent.
- RIGHTS OF THIRD PARTIES
Save for DFIN’s Affiliates, the parties to this Contract do not intend that any of its terms will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.
- ENTIRE AGREEMENT
This Contract contains all the terms which DFIN and the Customer have agreed in relation to the Goods and Services and (save as set out at clause 4.2.2) supersedes any prior written or oral agreements, representations or understandings between the parties relating to such Goods and Services. The Customer acknowledges that save in respect of clause 4.2.2 it has not relied on any statement, promise or representation made or given by or on behalf of DFIN which is not set out in this Contract. Nothing in this clause will exclude any liability which one party would otherwise have to the other party in respect of any statements made fraudulently.
- FORCE MAJEURE
DFIN will be deemed not to be in breach of this Contract or otherwise liable to the Customer in any manner whatsoever for any failure or delay in performing its obligations under this Contract due to circumstances beyond the reasonable control of DFIN.
- GOVERNING LAW AND JURISDICTION
This Contract will be governed by and construed exclusively in accordance with the laws of England and Wales and the Customer agrees to submit to the exclusive jurisdiction of the English Courts.
DATE: [ ]