Terms & conditions of purchase

1 Introduction

1.1 These terms and conditions (these terms) apply to all Orders placed by Penguin Random House with the Supplier in respect of the supply of the Deliverables specified in each Order raised on or after 2 March 2015 until further notice. They supersede any other terms and conditions, and orders for Deliverables are made only on this basis, unless a separate written and signed agreement is in place between Penguin Random House and the Supplier. Penguin Random House does not accept Supplier’s standard terms of business. By performing the Services and/or delivering any Goods requested under an Order, Supplier will be deemed to have accepted these terms.

1.2 No variations or amendment of these terms or oral promise or other commitment
related to them will be valid unless in writing bearing the original signature
of a director of each of Penguin Random House and the Supplier.

2 Definitions and Interpretation

2.1 In these terms the following words have the following meanings:
Business Day - a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business

Confidential Information - information of a kind referred to in clause 9.1 subject to
clause 9.2

Deliverables - Goods and/or Services ordered by and supplied to Penguin Random House in accordance with these terms

Delivery - supply of Deliverables by the Supplier in accordance with clause 4.1

Delivery Location - the location where the Deliverables are to be delivered

Due Date - the date on which the Deliverables are to be delivered

Goods - goods ordered by Penguin
Random House from the Supplier as specified in an Order

Group - in relation to a company, that company, its subsidiaries, its holding companies and their subsidiaries (each as defined in section 1159 of the Companies Act 2006)

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. Intellectual Property Right means any one of the Intellectual Property Rights

Materials - all designs, specifications, articles, materials, manuscripts and information supplied by or on behalf of Penguin Random House to the Supplier or produced by the Supplier on behalf of Penguin Random House pursuant to these terms

Order - an order for Deliverables submitted by Penguin Random House to the Supplier in accordance with clause 3

Penguin Random House - The Random House Group Limited, Penguin Books Limited and Dorling Kindersley Limited (and any company that is in the same Group as any of these companies), and any reference in these terms to Penguin Random House shall be to all companies within Penguin Random House Group or only one or more companies as the context may require

Representatives - employees, officers, agents, consultants and sub-contractors

Services - services ordered by Penguin Random House from the Supplier as specified in an Order

Supplier - the supplier of the Deliverables as specified in the relevant Order(s)

2.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors and permitted assigns.

2.3 A reference to a company will include any company, corporation or other body corporate, wherever and however incorporated or established.

2.4 Unless the context otherwise requires, words in the singular will include the plural and vice versa and unless the context otherwise requires, a reference to one gender will include a reference to the other genders.

2.5 A reference to a statute, statutory provision or any subordinate legislation made under a statute is to such statute, provision or subordinate legislation as amended or re-enacted from time to time and, in the case of a statute, includes any subordinate legislation made under that statute from time to time and in force at the time.

2.6 Subject to clause 1.2, reference to writing or written includes email or other electronic transmission in normal readable form.

2.7 Any phrase introduced by the terms ‘including’, ‘include’, ‘in particular’ or any similar expression will be construed as illustrative and will not limit the sense of the words preceding those terms.

2.8 Penguin Random House enters into contracts on these terms also on behalf of its Group companies, and any losses sustained by or occasioned to any Group company due to Supplier’s breach of these terms may be claimed by Penguin Random House as their own losses.

2.9 If the Order specifies a particular company within Penguin Random House to whom Goods or Services are to be provided, then the contract will be deemed to be formed between that company and the Supplier only.
If no company is specified the contract will be deemed to be formed between the Supplier and all three companies forming Penguin Random House.

3 Orders

3.1 Penguin Random House may submit Orders to the Supplier from time to time. Once submitted to the Supplier an Order is deemed to be an offer by Penguin Random House to purchase the Deliverables
specified in that Order, such offer made subject to these terms.

3.2 Each Order will:

3.2.1 be given in writing on a Penguin Random House standard purchase order;

3.2.2 specify the type and quantity of Deliverables ordered; and

3.2.3 set out the Delivery Date and the Delivery Location unless the parties agree in
writing that Penguin Random House may specify the Delivery Date and/or the
Delivery Location after placing the Order.

3.3 After placing an Order, but no later than five (5) Business Days prior to the Due Date, Penguin Random House may amend or cancel an Order by written notice to the Supplier.

4 Supply of Deliverables

4.1 The Supplier will supply (meaning ‘perform’ in respect of Services and ‘deliver’ in respect of Goods) the Deliverables at the Delivery Location by no later than the Due Date, but will not supply the Deliverables more than five (5) Business Days in advance of the Due Date without the prior written consent of Penguin
Random House. Time is of the essence in respect of Delivery.

4.2 The Supplier will supply the Deliverables (as applicable) as a minimum, with reasonable skill and care, using suitably qualified personnel, and in accordance with good industry practice and all applicable laws and regulations.

4.3 Delivery of Goods will be deemed to have taken place on their arrival complete and in good condition at the Delivery Location and performance of Services will be deemed to have taken place on their proper completion at the Delivery Location.

4.4 The Supplier will supply the Deliverables in instalments where and as set out in the relevant Order or as otherwise agreed in writing by Penguin Random House. References in these terms to Orders will, where applicable, be read as references to instalments.

4.5 If Deliverables have not been supplied by the specified Due Date, then, without
limiting any other right or remedy Penguin Random House may have, Penguin
Random House may:

4.5.1 refuse to facilitate any subsequent attempted supply of the Deliverables;

4.5.2 set aside the relevant Order and credit any sums paid or payable to the Supplier;

4.5.3 obtain substitute goods and/or services from another supplier and recover from the
Supplier any costs and expenses reasonably incurred by Penguin Random House in
obtaining such substitute goods and/or services; or

4.5.4 claim damages for any other costs, expenses or losses resulting from the Supplier's failure to supply the Deliverables by the Due Date, provided that the Supplier will have no liability for any failure or delay in delivering an Order to the extent that such failure or delay is caused by Penguin Random House's failure to comply with its obligations under these terms.

5 Supply of Goods

5.1 If Orders for Goods are made by Penguin Random House the Supplier will supply such Goods in accordance with this clause 5 and all other applicable clauses of these terms.

5.2 The Supplier will use its reasonable endeavours to maintain manufacturing capacity, stocks of raw materials, packaging and stocks of Goods to enable it to meet Penguin Random House's Orders for Goods. If Supplier requires any property of Penguin Random House for the manufacture of any Deliverable, Supplier shall ensure that such property is protected at all times from unauthorised access or use by any third party or any misuse, damage or destruction by any person.

5.3 The Supplier will ensure that Goods are properly packed and secured in such manner as to enable them to reach the Delivery Location in good and saleable condition.

5.4 Any Goods supplied to Penguin Random House by the Supplier under these terms will:

5.4.1 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as
amended) and fit for any purpose held out by the Supplier or made known to the
Supplier by Penguin Random House;

5.4.2 be free from defects in design, material and workmanship and remain so for twelve
(12) months after Delivery;

5.4.3 comply with all applicable statutory and regulatory requirements; and

5.4.4 comply with any specifications given by Penguin Random House.

5.5 The Supplier will (where appropriate) provide Penguin Random House with free samples of the Goods on
request and warrants that the Goods shall correspond to such samples.

5.6 Risk and title in and to Goods delivered to Penguin Random House will pass to Penguin
Random House on Delivery.

5.7 The Supplier will obtain all licences, permissions, authorisations, consents and permits needed to manufacture and supply the Goods in accordance with these terms.

5.8 The Supplier will comply with all applicable laws, enactments, orders, regulations and other instruments relating to the manufacture, packing, packaging, marking, storage, handling, and delivery of the Goods.

6 Acceptance of Deliverables

6.1 Penguin Random House will not be deemed to have accepted any Deliverables until it has had a reasonable time to inspect them following Delivery, and, in the case of a latent defect in Goods (if any have been ordered), until a reasonable time after the latent defect has become apparent.

6.2 If any Deliverables supplied by the Supplier do not comply with clauses 4.2 and 5.4 or are otherwise not in conformity with the terms of these terms then, without limiting any other right or remedy that Penguin Random House may have, Penguin Random House may reject them and:

6.2.1 require the Supplier to repair, replace or re-perform the rejected Deliverables at the Supplier’s risk and expense within five (5) Business Days of being requested to do so;

6.2.2 require the Supplier to repay the price of the rejected Deliverables in full (whether or not Penguin Random House has previously required the Supplier to repair or replace the rejected Deliverables); and/or

6.2.3 claim damages for any other costs, expenses or losses resulting from the Supplier's delivery of Deliverables that are not in conformity with these terms.

6.3 Penguin Random House's rights and remedies under this clause 6 are in addition to the rights and remedies available to it in respect of the statutory conditions implied into these terms by the Sale of Goods Act 1979 and the Supply of Goods and Services Act 1982.

6.4 The terms will apply to any repaired, replaced or re-performed Deliverables
supplied by the Supplier.

6.5 If the Supplier has reason to believe that any Deliverable may be defective, the Supplier shall check the Deliverable, or shall be responsible for any out of pocket costs of Penguin Random House for checking the Deliverable.

6.6 If the Supplier fails to promptly repair, replace or re-perform rejected Deliverables in accordance with clause 6.2.1, Penguin Random House may, without affecting its rights under clause 6.2.3, obtain substitute goods or services from a third party supplier, or have the rejected Deliverables repaired by a third party,
and the Supplier will reimburse Penguin Random House for the costs it incurs in doing so.

7 Price and payment

7.1 The Supplier will promptly invoice Penguin Random House for each Order after Delivery and will provide a separate invoice in respect of each Order, with each invoice to include the original Order reference number. If the Order specifies a particular company within Penguin Random House as the recipient of Goods or Services from the Supplier, then the invoice must be addressed to that company. If several companies are specified (or no particular company is specified), then the invoice should be addressed to The Random House Group Limited.

7.2 Subject to clause 7.1 Penguin Random House will pay Supplier invoices within the time period agreed in writing (including email) with the Supplier, or, in the absence of such agreement, by the end of the second month following the month in which they were received. Payment will be made to the bank account that the Supplier has most recently provided details of to Penguin Random House.

7.3 If Penguin Random House disputes any invoice or other statement of monies due then Penguin Random House will notify the Supplier in writing and the parties will negotiate in good faith to attempt to resolve the dispute promptly. The Supplier will provide all such evidence as may be reasonably necessary to verify the disputed invoice or request for payment. The Supplier’s obligations to supply the Deliverables will not be affected by any payment dispute.

7.4 If payment of an invoice is not made by Penguin Random House in accordance with clause 7.2 of these terms then, save where any sums invoiced have been contested by Penguin Random House in accordance with clause 7.3, the Supplier may charge interest on the properly due and uncontested sums at the rate of 2% above the base rate from time to time of the Bank of England. Such interest will accrue and be calculated on a daily basis.

The parties hereby acknowledge that any interest payable by Penguin Random House in accordance with this clause 7.4 is intended to be a substantial remedy for sums due pursuant to the relevant Order(s), and that the sums payable pursuant to this clause 7.4 are in lieu of any sums due pursuant to the Late Payment of Commercial Debts (Interest) Act 1998 and/or the Late Payment of Commercial Debts Regulations 2002.

7.5 Penguin Random House may, without limiting any other rights or remedies it may have,
set off any amounts owed to it by the Supplier under these terms against any amounts payable by it to the Supplier under these terms. If any amount invoiced by the Supplier is disputed by Penguin Random House, Penguin Random House may withhold payment of the disputed amount until the dispute has been resolved.

8 Indemnity

8.1 The Supplier will indemnify Penguin Random House against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by Penguin Random House arising out of or in connection with:

8.1.1 any claim made against Penguin Random House for actual or alleged infringement of a third party's Intellectual Property Rights arising out of, or in connection with, the supply or use of the Deliverables;

8.1.2 any claim made against Penguin Random House by a third party arising out of, or in connection with, the supply of the Deliverables, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of these terms by the Supplier and/or its Representatives; and

8.1.3 any claim made against Penguin Random House by a third party for death, personal injury or damage to property arising out of, or in connection with, defective Deliverables, to the extent that the defect in the Deliverables is attributable to the acts or omissions of the Supplier and/or its Representatives.

8.2 Nothing in this clause will restrict or limit Penguin Random House's general obligation at law to mitigate a loss which it may suffer or incur as a result of a matter that may give rise to a claim under this indemnity.

9 Confidentiality

9.1 Each party undertakes that it will not at any time during the term of these terms disclose to any person any confidential information disclosed to it by the other party concerning the business or affairs of the other party or of any member of its Group, including information relating to a party's operations, processes, plans, product information, know-how, designs, trade secrets, software, market opportunities, customers and the Materials (Confidential Information), except as permitted by clause 9.2.

9.2 Each party may disclose the other party’s Confidential Information:

9.2.1 to its Representatives who need to know such information for the purposes of carrying out the party's obligations under these terms, provided that the disclosing party takes all reasonable steps to ensure that its Representatives comply with the confidentiality obligations contained in this clause 9 as though they were a party to these terms. The disclosing party will be responsible for its Representatives' compliance with the confidentiality obligations set out in this clause; and

9.2.2 as may be required by law, court order or any governmental or regulatory authority.

9.3 Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party’s Confidential Information other than those expressly stated in these terms are granted to the other party or to be implied from these terms. In particular, no licence is hereby granted directly or indirectly under any patent, invention, discovery, copyright or other intellectual property right held, made, obtained or licensable by either party now or in the future. The Supplier acknowledges that it acquires no Intellectual Property Rights in the Materials, which shall remain vested in Penguin Random House or its licensors.

10 Termination

10.1 Either party shall be entitled to terminate any Order for the purchase of Goods and/or Services on these terms and conditions if:

10.1.1 the other party is in breach of any material term and, if such breach is capable of remedy, has not remedied the same within 14 days after having been so requested by the non-defaulting party; or

10.1.2 a liquidator, receiver, administrative receiver is appointed in respect of the other party, if the other party makes or proposes to make a composition with creditors or ceases to carry on business or if the first party
reasonably believes that such an event is about to occur.

11 Miscellaneous

11.1 The Supplier may not sub-contract, assign, licence, transfer or delegate all or part of its rights or obligations hereunder without Penguin Random House’s prior written consent. If any sub-contractor is approved, the Supplier shall be fully liable for the acts and omissions of such sub-contractor.
 
11.2 No waiver or forbearance granted in respect of any right of either party shall prejudice the exercise of any other right.

11.3 Any clause or part of any clause which shall be held by any court not to be legally enforceable shall be struck out but shall not prejudice the enforceability of the remainder of the clause and these terms.

11.4 By accepting the Order, the Supplier acknowledges receipt of and thereby confirms that it has agreed to be bound by these terms and further acknowledges that these terms comprise the only terms upon which the Deliverables are supplied and that they shall not, and shall not be deemed to be, altered or varied to any extent by any previous correspondence or dealings between Penguin Random House and the Supplier or by the provision by the Supplier to Penguin Random House of any other terms in respect of such Deliverables (save for any specifications made by Penguin Random House in relation to the Deliverables on the purchase order).

11.5 The Supplier confirms that in the manufacture and delivery of the Goods and Services hereunder, Supplier complies with ILO conventions 1, 14, 29, 87, 95, 98, 100, 105, 111, 138, 155 and 182, as well as the UN Global compact, and the Bribery Act 2010.

11.6 Any changes to these terms shall be in writing and signed by an authorised representative of Penguin Random House.

12 Governing law and jurisdiction

These terms are governed by and construed in accordance with the laws of England and Wales, and the parties submit to the exclusive jurisdiction of the English courts.