LUX WORLDWIDE STANDARD TERMS AND CONDITIONS OF SUPPLY
1.1 Definitions. In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Commencement Date: has the meaning set out in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 11.8.
Contract: the contract between Lux Worldwide and the Client for the supply of Services in accordance with these Conditions.
Content Management System: the online system whereby Clients can log in via the Website and manage and upload the Client Materials.
Client: the person or firm who purchases Services from Lux Worldwide.
Client Materials: all Documents, information and materials provided by the Client relating to the Services.
Document: includes, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form.
Deliverables: the Documents, information and materials prepared by Lux Worldwide during the provision of the Services.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Order: the Client's order for Services as set out in the Client’s purchase order form, in writing, in the Client’s written acceptance of Lux Worldwide's quotation, or overleaf, as the case may be.
Services: the advertising services including the “basic” listing, “featured” listing or “enhanced” listing services, (including the Deliverables), supplied by Lux Worldwide to the Client as set out in the Specification.
Lux Worldwide: Lux Worldwide Limited registered in England and Wales with its registered office at The Old Rectory, Church Street, Weybridge, Surrey, KT13 8DE with company number 07922892.
Specification: the description or specification of the Services provided in writing by Lux Worldwide to the Client.
Terms of Website Use: the terms upon which users of the Website can use the Website.
Website: any website owned or operated by Lux Worldwide including, without limitation, www.luxworldwide.com.
1.2 Construction. In these Conditions, the following rules apply:
(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(b) a reference to a party includes its personal representatives, successors or permitted assigns;
(c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(d) any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
(e) a reference to writing or written includes faxes and e-mails.
2. Basis of contract
2.1 The Order constitutes an offer by the Client to purchase Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when Lux Worldwide issues written acceptance of the Order at which point and on which date the Contract shall come into existence (“Commencement Date”).
2.3 The Contract constitutes the entire agreement between the parties. The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Lux Worldwide which is not set out in the Contract.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3. Supply of Services
3.1 Lux Worldwide shall supply the Services to the Client in accordance with the Specification in all material respects.
3.2 Lux Worldwide shall use all reasonable endeavours to meet any performance dates specified in the Specification, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 Lux Worldwide shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and Lux Worldwide shall notify the Client in any such event.
3.4 Lux Worldwide warrants to the Client that the Services will be provided using reasonable care and skill.
3.5 Lux Worldwide shall provide the Client with access to the Content Management System but such access will only be provided once the Client has read and accepted the Terms of Website Use.
4. Client's obligations
4.1 The Client shall:
(a) ensure that the terms of the Order are complete and accurate;
(b) co-operate with Lux Worldwide in all matters relating to the Services and where requested by Lux Worldwide to provide approval in relation to the Deliverables, it shall do so promptly;
(c) provide Lux Worldwide with the Client Materials and such information and materials as Lux Worldwide may reasonably require in order to supply the Services either directly or via the Content Management System, and ensure that such information is accurate in all material respects;
(d) obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start;
(e) comply with the Terms of Website Use when using the Content Management System.
4.2 If Lux Worldwide's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (“Client Default”):
(a) Lux Worldwide shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays Lux Worldwide's performance of any of its obligations;
(b) Lux Worldwide shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from Lux Worldwide's failure or delay to perform any of its obligations as set out in this clause 4.2; and
(c) the Client shall reimburse Lux Worldwide on written demand for any costs or losses sustained or incurred by Lux Worldwide arising directly or indirectly from the Client Default.
5. Charges and payment
5.1 In consideration of the provision of the Services by Lux Worldwide, the Client shall pay the charges as set out in the Specification and grant a licence to Lux Worldwide pursuant to clause 6.1. Where Lux Worldwide is providing “basic” listing services as detailed in the Specification, both parties agree that the arrangement is mutually beneficial. Lux Worldwide benefits from the arrangement by increasing the number of brands in its directory and the Client benefits by gaining exposure to users of the brand directory.
5.2 Lux Worldwide shall invoice the Client for the Services at any time after the Commencement Date.
5.3 The Client shall pay each invoice submitted by Lux Worldwide:
(a) within 30 days of the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by Lux Worldwide, and
time for payment shall be of the essence of the Contract.
5.4 All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (“VAT”). Where any taxable supply for VAT purposes is made under the Contract by Lux Worldwide to the Client, the Client shall, on receipt of a valid VAT invoice from Lux Worldwide, pay to Lux Worldwide such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.5 Without limiting any other right or remedy of Lux Worldwide, if the Client fails to make any payment due to Lux Worldwide under the Contract by the due date for payment (“Due Date”), Lux Worldwide shall have the right to charge interest on the overdue amount at the rate of 4% per cent per annum above the then current Barclays Bank plc’s base rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
5.6 The Client shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Client shall not be entitled to assert any credit, set-off or counterclaim against Lux Worldwide in order to justify withholding payment of any such amount in whole or in part. Lux Worldwide may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by Lux Worldwide to the Client.
6. Intellectual property rights
6.1 The Client hereby licenses all Intellectual Property Rights in the Client Materials to Lux Worldwide free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable Lux Worldwide to display, copy, reproduce, make available on the Website or otherwise make use of the Client Materials in order to provide the Services.
6.2 The Client warrants that it is the sole legal and beneficial owner of the Intellectual Property Rights in the Client Materials and that Lux Worldwide’s use of the Client Materials will not infringe the Intellectual Property Rights of any third party.
6.3 As between the Client and Lux Worldwide, all Intellectual Property Rights and all other rights in the Deliverables are owned by Lux Worldwide. Lux Worldwide hereby licenses all Intellectual Property Rights in the Deliverables to the Client free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Client to make use of the Services.
6.4 The Client shall indemnify Lux Worldwide against all liabilities, costs, expenses, damages or losses (including any direct or indirect consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by Lux Worldwide arising out of or in connection with the Client's exercise of the rights granted under the Contract, any breach by the Client of the terms of the Contract and any claim made against Lux Worldwide for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with the Deliverables or the Client Materials. This clause 6.4 shall survive termination of the Contract.
A party (“Receiving Party”) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (“Disclosing Party”), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party's business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party's obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 7 shall survive termination of the Contract.
8. Limitation of liability
8.1 Nothing in these Conditions shall limit or exclude Lux Worldwide's liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
8.2 Subject to clause 8.1:
(a) Lux Worldwide shall under no circumstances whatever be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(b) Lux Worldwide's total liability to the Client in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price paid for the Services.
8.3 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
8.4 This clause 8 shall survive termination of the Contract.
9.1 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing of the breach;
(b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its 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 (being a partnership) has any partner to whom any of the foregoing apply;
(c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(e) the other party (being an individual) is the subject of a bankruptcy petition or order;
(f) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(g) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
(h) a floating charge holder over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(j) any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 9.1(b) to clause 9.1(i) (inclusive);
(k) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
(l) the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
9.2 Without limiting its other rights or remedies, Lux Worldwide may terminate the Contract with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under this Contract on the due date for payment.
9.3 Without limiting its other rights or remedies, each party shall have the right to terminate the Contract by giving the other party 1 month’s written notice.
9.4 Without limiting its other rights or remedies, Lux Worldwide shall have the right to suspend provision of the Services under the Contract or any other contract between the Client and Lux Worldwide if the Client becomes subject to any of the events listed in clause 9.1(b)) to clause 9.1(l), or Lux Worldwide reasonably believes that the Client is about to become subject to any of them, or if the Client fails to pay any amount due under this Contract on the due date for payment.
10. Consequences of termination
On termination of the Contract for any reason:
(a) the Client shall immediately pay to Lux Worldwide all of Lux Worldwide's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Lux Worldwide shall submit an invoice, which shall be payable by the Client immediately on receipt;
(b) any licences granted pursuant to clause 6.1 or 6.3 shall terminate automatically;
(c) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
(d) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
11.1 Force majeure:
(a) For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of Lux Worldwide including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of Lux Worldwide or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
(b) Lux Worldwide shall not be liable to the Client as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
(c) If the Force Majeure Event prevents Lux Worldwide from providing any of the Services for more than 6 weeks, Lux Worldwide shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Client.
11.2 Assignment and subcontracting:
(a) Lux Worldwide may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
(b) The Client shall not, without the prior written consent of Lux Worldwide, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier, fax or e-mail.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in this clause; if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by fax or e-mail, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
(a) A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
(b) Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
(a) If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
(b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
11.6 No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
11.7 Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.
11.8 Variation: Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract, shall only be binding when agreed in writing and signed by Lux Worldwide.
11.9 Governing law and jurisdiction: This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.