Bulk Newspaper Resale Terms and Conditions for Subscription Service Providers
In this Agreement words and phrases have the meaning given to them in the Term Sheet and this Clause 1:
“FT Marks”: the trade marks, service marks, trade names, logos and other branding of FT, whether registered or unregistered.
“Subscription Term”: the subscription period to be decided in FT’s discretion as set out in the relevant Order.
“Term Sheet”: a term sheet, agreed by FT and Service Provider, incorporating these terms.
2.1 Service Provider shall at all times during the term of this Agreement:
- (a) provide the Services in a reasonable and professional manner;
- (b) act in good faith and comply with all reasonable and lawful instructions of FT in relation to this Agreement;
- (c) comply with FT’s guidelines and policies for subscription service providers, as notified by FT to Service Provider from time to time, and shall notify Bulk Subscribers of all relevant provisions of those guidelines and policies;
- (d) ensure that its staff are suitably qualified and experienced in performing the Services and will exercise professionalism and the level of care, skill and diligence in the performance of the Services reasonably expected from persons with similar experience performing services of a similar nature; and
- (e) ensure that it has the expertise and technological and other resources required to provide the Services in accordance with this Agreement.
2.2 Service Provider shall not:
- (a) do, or permit to be done, anything which may reasonably be interpreted by FT in any way as being prejudicial, detrimental or denigrating to the FT, its brand or business;
- (b) seek to associate itself with FT other than as strictly permitted by this Agreement;
- (c) hold him/herself out as an employee of the FT; and
- (d) sell or offer to sell Newspapers to Bulk Subscribers who are based outside the Territory;
- (d) conclude any agreements or contractual arrangements on behalf of FT, or hold itself out as authorised to do so; or
- (e) except as agreed by FT in writing, place Orders with FT on behalf of other service provider, agency or other intermediary.
2.3 Nothing in this Agreement shall: (a) prevent FT selling Newspapers (including by way of subscriptions directly in respect of any of its products in the Territory; and/or (b) working with other service providers in the Territory.
3. Pricing and Orders
3.1 Service Provider may charge a Bulk Subscriber such fee for its Newspaper subscription (“Subscription Fee”) as Service Provider may see fit, subject to any maximum price determined by FT from time to time.
3.2 FT shall keep Service Provider informed of FT’s recommended and special offer subscription prices, which FT may vary from time to time at its discretion.
3.3 Service Provider shall, promptly upon accepting a request for a Newspaper subscription from a Bulk Subscriber, place an Order (in the format notified by FT to Service Provider and containing all the information requested by FT) with FT for that Newspaper subscription
3.4 FT may in its absolute discretion decline for any reason to fulfil an Order and no obligation or liability to Service Provider or to any other person shall be incurred by FT in doing this. Service Provider shall make this clear to any potential Bulk Subscriber.
4. Invoicing and Payment
4.1 Regardless of the Subscription Term, FT may invoice Service Provider for the Supply Fee for the Newspapers ordered by Service Provider on a monthly basis, and such invoice shall be payable in full, without deduction or set-off, in the agreed currency in accordance with the terms of the invoice.
4.2 In the event of late payment of an FT invoice, FT may charge Service Provider interest (before as well as after judgment) on the outstanding amount at the rate of 4 per cent per month from the due date until the date payment is received.
4.3 If Service Provider reasonably and genuinely disputes any Supply Fees or other charges invoiced by FT under this Agreement, Service Provider shall:
- (a) notify FT promptly (and in any event before the due date for payment of the relevant amount);
- (b) pay any amount not in dispute in accordance with clause 4.1; and
- (c) cooperate with FT in good faith to resolve the dispute as soon as reasonably practicable.
Provided Service Provider complies with the foregoing, Service Provider may withhold payment of the disputed amount pending resolution of the dispute.
5.1 Supply Fees and all other charges are exclusive of value added tax (VAT) or any other sales or similar taxes which are or may be applicable.
5.2 All amounts due to be paid to FT under this Agreement shall be paid in full, without set-off or counterclaim and free and clear of and without any deduction or withholding for, or on account of, any present or future taxes, duties, levies, imposts or charges of any nature.
5.3 If Service Provider is required by any law or regulation to make any deduction or withholding (on account of tax or otherwise) from any payment, Service Provider shall, together with such payment, pay such additional amount as will ensure that FT receives, free and clear of any tax or other deduction or withholding, the full amount which it would have received if no such deduction or withholding had been required. Service Provider shall promptly forward to FT copies of official receipts or other evidence showing that the full amount of any such deduction or withholding has been paid over to the relevant taxation or other authority.
5.4 The parties agree to comply with the applicable double tax treaty with respect of withholding taxes and FT shall comply with all reasonable requests from Service Provider to file, or to provide Service Provider with such forms, statements or certificates as shall enable Service Provider to apply a reduced rate of tax or exemption from tax in accordance with the applicable double tax treaty.
6. Lapsed Subscriptions
6.1 In the event that a Newspaper subscription expires or is terminated without being renewed within three months of termination or expiry, FT shall be entitled to contact the Bulk Subscriber in order to offer a new Newspaper subscription directly to that Bulk Subscriber (“Direct New Subscription”). Service Provider shall provide FT with a list of Bulk Subscribers’ contact details for this purpose in such format as the parties shall agree acting reasonably, updated on a monthly basis for the term of this Agreement.
6.2 Service Provider will not be entitled to any commission on Direct New Subscriptions.
7. FT Marks
7.1 Service Provider shall not use any of the FT Marks in advertising, publicity, promotion, marketing or other activities or in any manner without FT’s prior written approval.
7.2 If FT permits Service Provider in writing to use the FT Marks, Service Provider shall at all times use the FT Marks in such a manner that their distinctiveness and reputation are maintained and shall not do anything which may bring the FT Marks into disrepute.
7.3 Service Provider acknowledges and agrees that: (a) all use of the FT Marks hereunder inures to the benefit of FT; (b) the FT Marks will remain the exclusive property of FT; (c) nothing in this Agreement shall confer upon Service Provider any right of ownership in the FT Marks; and (d) Service Provider shall not now or in the future contest the validity of the FT Marks or take any action impairing the rights of FT in the FT Marks.
8. Reporting, Records and Audit Rights
Service Provider shall maintain complete and accurate books and records with respect to this Agreement including any schedules and attachments pertaining to its obligations under this agreement until at least three (3) years after the termination of the Agreement. FT shall have the right, on reasonable notice to Service Provider, to examine such books and records.
9. Term and Termination
9.1 This Agreement will commence on the Effective Date and will continue unless terminated by either party giving the other no less than 60 days’ written notice.
9.2 Either party may terminate this Agreement:
- (a) on any material breach of this Agreement by the other party which (in the case of a breach capable of remedy) is not remedied within fourteen days of receipt of a written request to remedy the same; or
- (b) if the other party enters into or proposes to enter into an arrangement with its creditors or has an administrator appointed over the whole or any substantial part of its assets or ceases to carry on business or is presented with a petition for liquidation or any event analogous to any of the foregoing occurs in relation to it in any jurisdiction.
9.3 FT may terminate this Agreement immediately on notice if:
- (a) any material alteration is made to the ownership or control (meaning the majority shareholding or the capacity to control day to day management) of Service Provider;
- (b) Service Provider engages in conduct which FT reasonably considers prejudicial to its interests or reputation; or
- (c) Service Provider fails to pay any overdue amount due under this Agreement within 14 days after a written demand by FT for payment thereof, except where Service Provider has disputed the amount in accordance with clause 4.3.
9.4 FT may terminate this Agreement with or without cause on no less than 30 days written notice to the Service Provider.
9.5 Upon any termination of this Agreement, Service Provider shall cease all use of the FT Marks and shall cease all Services, and all rights and obligations of the parties under this Agreement shall cease except for Service Provider’s obligation to make any payments of any fees to FT accrued prior to or after the date of termination.
9.6 Any termination of this Agreement is without prejudice to any other rights or remedies a party may be entitled to under this Agreement or at law and shall not affect any accrued rights or liabilities of either party.
10. No Agency
10.1 The relationship of the parties to this Agreement is that of independent contractors and not employees. Nothing in this Agreement shall be deemed to create any partnership, principal/agent or joint venture relationship between the parties. Neither party is granted any authority or power to bind the other or to contract in the name of or create a liability against or otherwise act as the representative of the other in any matter whatsoever. Service Provider shall provide the services under this Agreement on a non-exclusive basis.
11. Data Protection
11.1 Service Provider shall notify Bulk Subscribers that:
- (a) their personal data is collected jointly with FT for the purpose of providing the Newspaper subscription, and
- (b) FT may use that personal data for purposes relating to this Agreement, including without limitation (i) the set-up, delivery, use, management, maintenance and renewal of the Newspapers, (ii) product advice messages, (iii) service information messages and (iv) content notification messages, and (v) notifying Bulk Subscribers where a Newspaper subscription has lapsed and offering a Direct New Subscription pursuant to clause 6.1.
11.2 Service Provider warrants and represents to FT that:
- (a) it will only process personal data in accordance with all applicable data protection laws now existing or hereinafter enacted, and will not cause FT to breach the same;
- (b) it has in place and shall maintain throughout the term of this Agreement appropriate technical and organisational measures against the accidental, unauthorised or unlawful processing, destruction, loss, damage or disclosure of data and adequate security programs and procedures to ensure that unauthorised persons do not have access to any equipment used to process data.
11.3 Service Provider acknowledges that FT may contact Bulk Subscribers directly from time to time in including without limitation pursuant to clause 6.1.
12.1 Each party agrees to preserve the confidentiality of all Confidential Information of the other party that is obtained in connection with this Agreement, and shall not, without the prior written consent of the other party, disclose or make available to any person, or use for its own benefit other than as contemplated by this Agreement, any such Confidential Information of the other party. “Confidential Information” shall mean information pertaining to the business of either party that is actually confidential, is disclosed at the request of, or with the consent of, the receiving party, whether labelled confidential or not; provided that all Bulk Subscriber lists, pricing information, business methods, and financial records of either party shall be deemed confidential information of FT even if not so labelled. Any Confidential Information delivered in tangible form shall be promptly returned upon written request of the disclosing party.
12.2 Information will not be deemed confidential if it: (a) is already known prior to the Agreement to the receiving party; (b) is or becomes publicly available (other than through unauthorised access by the receiving party); (c) is made available to the receiving party by any person other than the disclosing party without breach of any obligation of confidentiality of such other person; (d) is independently and lawfully developed by the receiving party; or (e) for FT’s benefit only, is acquired by members of FT’s newsgathering or news dissemination operations by persons who are not provided with access to Service Provider’s Confidential Information pursuant to the terms of this Agreement.
12.3 The obligations of this section shall survive any termination of this Agreement.
13. Warranties and Liability
13.1 Neither FT nor any third-party provider of information endorses nor guarantees the accuracy, completeness, or usefulness of any content in the Newspapers, nor their merchantability or fitness for any particular purpose nor that the delivery will be error-free or at a particular time.
13.2 Each party warrants and represents to the other that it has the full power and authority to enter into this Agreement.
13.3 It is hereby agreed that except as expressly set out in this Agreement and to the extent permissible by law, all warranties, conditions, representations, terms or undertakings, express or implied, statutory or otherwise are hereby excluded.
13.4 FT shall not have any liability to Service Provider to the extent such liability arises as a result of a breach of this Agreement by Service Provider or a breach of the ft.com Terms and Conditions (or any other contractual terms between FT and a Bulk Subscriber) by a Bulk Subscriber.
13.5 It is agreed that:
- (a) Service Provider shall procure that the Bulk Subscriber grants sufficient access to the pre-agreed delivery address to any delivery agent for the purpose of delivering the Newspaper. Service Provider shall ensure that the Bulk Subscriber is aware of this clause 13.5;
- (b) If FT determines in its reasonable opinion that it is no longer practical or economical to deliver Newspapers by road, then FT may cancel the provision of Newspapers on giving no less than two weeks written notice to Service Provider. No compensation will be due to any Bulk Subscriber in relation to such cancellation. Service Provider shall ensure that the Bulk Subscriber is aware of this clause;
- (c) Any delays in the delivery of Newspapers shall not entitle Service Provider to: (i) claim damages; or (ii) terminate this agreement, subject always to clause 15.1;
- (d) FT shall have no liability for any failure or delay in delivering a Newspaper subscription or any Newspaper to the extent that such failure or delay is caused by Service Provider’s failure to comply with its obligations under this Agreement.
14.1 Service Provider shall at all times comply with all applicable laws related to bribery, corruption and related matters including the US Foreign Corrupt Practices Act and the UK Bribery Act and the laws of the Territory.
14.2 Service Provider shall not offer, pay, or authorise any financial or other advantage to be given:
- (a) to any official or employee of any government or political party, political candidates or employees of Government enterprises (“Official”); or
- (b) to any person who deals with FT in connection with its business,
for the purpose of obtaining an improper business advantage for FT; influencing such Official to take, or not take, any action or decision; or inducing such Official to use his influence to affect any act or decision of the government.
14.3 Service Provider warrants and represents that:
- (a) it has not done, nor will it do, any act in breach of 14.1 or 14.2;
- (b) it has no reason to believe that any of its employees, agents, or representatives have done, nor will they do, any act in breach of 14.1 or 14.2;
- (c) except as disclosed to FT in writing, no Official has any connection with Service Provider; and
- (d) it will not engage any representative or sub-agent without FT’s prior written consent.
14.4 Service Provider shall report any breach or potential breach of clauses 14.1, 14.2 or 14.3 to FT as soon as it becomes aware of them.
14.5 Service Provider shall:
- (a) keep accurate and complete records of all expenditure related to this Agreement and allow FT to audit such records;
- (b) cooperate fully with FT in connection with FT checking compliance with this clause 14.5 including without limitation answering any queries from FT and allowing FT to interview any of Service Provider’s staff; and
- (c) allow its staff to attend any relevant training as requested by FT.
14.6 FT shall have the right to terminate this Agreement with immediate effect should it have reason to believe Service Provider has acted, or will act, in breach of clauses 14.1, 14.2 or 14.3 without any further liability to Service Provider.
15.1 Neither party shall be held responsible or liable for any losses arising out of any delay or non-performance of any part of this Agreement due to any cause beyond the reasonable control of the party delayed or unable to perform any part of this Agreement. When a party’s delay or non-performance continues for a period of at least fifteen days, the other party may terminate this Agreement.
15.2 Service Provider may not assign at law or in equity any benefit or otherwise transfer, delegate or sub-contract any of its duties or obligations under this Agreement without the prior written consent of FT. FT may assign at law or in equity any benefit or transfer, delegate or sub-contract any of its duties or obligations under this Agreement to any company within the Pearson group without the prior written consent of Service Provider.
15.3 Any notice, consent or other communication required to be given hereunder shall be made in writing and shall be delivered by hand, recorded delivery or courier to the other party and shall be deemed to have been received, if delivered by hand, at the time and date of delivery; and if sent by recorded delivery at the recorded or courier, upon the date of receipt (as evidenced by signature). Any such communication made by FT shall be sent to the address of Service Provider shown on the Term Sheet. Any such communication made by Service Provider shall be sent to the Company Secretary, The Financial Times Limited, Bracken House, 1 Friday Street, London, EC4M 9BT.
15.4 If a provision of this Agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of this Agreement, and the validity and enforceability of the other provisions of this Agreement shall not be affected. If a provision of this agreement (or part of any provision) is found to be illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
15.5 No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. 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.
15.6 This Agreement constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter. Each party acknowledges that, in entering into this Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in this agreement. Nothing in this clause 15.6 shall limit or exclude any liability for fraud.
15.7 A person who is not a party to this Agreement shall not have any rights under or in connection with it.
15.8 Any amendments or modifications made to this Agreement by FT will be implemented upon reasonable written notice to Service Provider. Service Provider may not amend or modify this Agreement without the prior written consent of FT.
15.9 This Agreement may be signed in counterparts each of which once signed shall be deemed to be an original of this Agreement. Signed copies of this Agreement sent as a PDF by email shall be deemed to be originals of this Agreement.
15.10 The rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
16. Governing Law
16.1 This agreement shall be 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, provided that for the exclusive benefit of FT, FT retains the right to bring proceedings against Service Provider in the applicable courts of Service Provider’s place of business.
17. Version of Terms and Conditions
17.1 This version of the Terms and Conditions applies to Term Sheets executed by the FT and Service Provider at any time from 1 May 2019 until this version of the Terms and Conditions is superseded by a new version.
17.2 FT may at any time and at its sole discretion change, update or amend these Terms and Conditions by posting a new version of the Terms and Conditions at http://help.ft.com/legal-privacy/legacy-pages/bulk-newspaper-resale-terms-and-conditions-subscription-service-providers/. Any such change, update or amendment will apply to existing Term Sheets upon FT giving notice under clause 15.8.