TERMS AND CONDITIONS OF BUSINESS
For the purposes of these Terms and Conditions, the following Definitions apply:
“OKP”, “we”, “our”, “us” and “the Business” refers to Orla Kelly Publishing Limited with a registered place of business at 27, Cork Road, Midleton, Co. Cork.
“Author”, “you” and “the individual” refers to the person who is engaging the services of OKP and owns and/or exclusively controls the content which is submitted by you to us.
“Content” means the manuscripts, artwork, images, text, descriptive materials and other content that you have submitted to us in connection with the Services. By engaging our services, you acknowledge that all content is owned or controlled by you and/or has been cleared by you for all purposes and rights granted and authorised hereunder by you.
“Services” means the services described in the Services Schedule, together with such other services as may be agreed in writing from time to time between OKP and the Author
“Order” means a confirmed request by you for our Services made via email.
“Contract” means the contract for the supply of Services to you, the Author by OKP which is governed by the Terms and Conditions as set out hereunder.
IT IS AGREED as follows:
- GENERAL TERMS
a. These conditions apply to your use of the Services. Any breach by you of these Terms & Conditions shall entitle us to terminate or suspend your right to use the Services.
b. You agree that OKP will be listed on the finished book as the publisher. Furthermore, you agree that we can also use our logo on the back cover of the published book.
c. We reserve the right to change or alter these Terms & Conditions with or without notice to the Customer at any time and such changes will, unless otherwise stated, take immediate effect.
d. The headings in these Terms & Conditions are for convenience only and shall not affect their interpretation.
e. Where the context dictates in these Terms & Conditions, the singular shall include the plural and vice versa and any gender includes the other gender.
f. Any reference to a Clause shall mean a clause of these Terms & Conditions.
g. Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by OKP shall be subject to correction without any liability of the business.
- APPLICABILITY OF CONDITIONS
These conditions shall form part of all Contracts between OKP and the Author and shall prevail over any inconsistent terms and conditions contained in or referred to in any order or correspondence of the Author in writing which is accepted by the Business or elsewhere and all or any such conditions or stipulations contrary to these Conditions are hereby excluded and extinguished. No variation of these Conditions shall be binding unless accepted by the Business in writing.
- QUOTATIONS AND OFFERS
Quotations for Services by OKP will not constitute offers to the Author and will not be binding on us. An offer will be constituted by way of an order in writing from the Author based on details of the particular services you require from us and a Contract will be formed by our acceptance of your order. Each order from you will constitute the basis of a separate Contract but the application of these Conditions to a Contract shall constitute notice to you of their applicability to all future orders, which are accepted.
- OBLIGATIONS OF THE AUTHOR
The work and content provided to OKP is under ownership of the author and the author has full rights and authority concerning its usage. It does not infringe on the rights of another entity or person and is neither defamatory nor legally damaging to a third party and is an original work and not plagiarised from another source. The Author agrees to the warranties and indemnities as set out herein at number 13.
The Author must deliver to OKP all copies of the Work in such format as may be determined by OKP at any time and from time to time.
The Author undertakes to OKP that during the term of this Agreement it shall provide OKP with all relevant information concerning the Work and the Content and provide such other support and assistance as OKP will reasonably require in order to enable OKP to effectively provide the Services
- OBLIGATIONS OF OKP:- ORLA WE NEED TO DISCUSS THIS TO FINALISE SOME PROPOSALS HERE
OKP shall fulfil the tasks outlined and agreed in the proposal in as timely a manner as is reasonable and any issues that may occur will be clearly communicated in writing or via email to the client and a mutually agreeable resolution sought between the parties.
OKP will keep secure client files on their system and store them safely after completion of the project. In exercising their professional services, OKP will take on board client feedback and offer guidance from time to time but any guidance will be made in good faith and shall not constitute a disclaimer of any potential legal issue arising.
- TERM AND TERMINATION
a. If the Author for any reason cancels Services which have been commissioned charges will be payable for all the completed work up to the date of cancellation and for all other costs and expenses which have been incurred by OKP prior to the cancellation and for such other costs and expenses which may accrue as a result of such cancellation. Any such cancellation of Services must be notified in writing by providing the Business with 30 days’ notice.
b. OKP reserves the right to terminate the contract with the Author on providing you 30 days’ notice in writing of its intention to terminate the contract.
c. This Contract and your access to the Service may be terminated forthwith by written notice:
- if you are in material breach of this Contract and the breach is not capable of being remedied or is not remedied within the period of 14 days after written notice of the breach has been given to you;
- if the Author enters into any compromise or arrangement with your creditors, or if an order is made or an effective resolution is passed for your winding up (except for the purposes of amalgamation or reconstruction as a solvent company) or if a receiver, manager, or administrator is appointed in respect of the whole or any part of your undertaking or assets or if there is any similar or analogous event in any jurisdiction affecting you;
- if you cease or threaten to cease to carry on your Company (where applicable) or you are otherwise unable to pay your debts as they fall due.
- If we reasonably believe you are in breach of any provision of this Contract, we may suspend your access to the Service at any time.
d. OKP shall, in addition to all other rights and remedies under these Terms be entitled to terminate this Contract without notice if any of our charges for the Services are not paid in accordance with these Terms.
e. The expiry or termination of this Agreement shall be without prejudice to the rights of the parties accrued up to the date of such expiry or termination. Subject to the foregoing, OKP shall have no further or continuing right to provide the Services after the expiry or termination of this Agreement and OKP shall deliver to the Author any copies of the Author’s Content supplied by the Author and held by OKP and any other materials of any kind whatsoever given to OKP during the term of this Agreement.
a. OKP reserves the right to immediately terminate this Agreement and to immediately delete any online accounts set up by OKP in the name of the Author if:
- OKP, at its sole discretion, has reason to believe that the Content or any part thereof breaches any of the Author’s representations and warranties set out in clause 15 of this Agreement or any additional representations;
- OKP receives a bona fide request from a governmental or regulatory authority; or
- the Content could otherwise cause liability or damage to OKP or any of its respective officers, employees or agents. For the avoidance of doubt, OKP shall be neither responsible nor liable to the Author in any way whatsoever in respect of any retailers or end-users that fail to remove the Content or that continue to solicit orders for or to distribute the Content.
a. The Author shall pay to OKP the relevant amount set out in the Services Schedule in consideration for the Services provided by OKP.
b. Each amount stated to be payable by the Author to OKP under this Agreement: (a) shall be paid in euro; (b) shall be paid by direct debit to OKP’ bank account, or in such other manner as OKP may request from time to time; (c) is exclusive of value added tax unless otherwise stated by OKP; and (d) shall be paid without set-off or counterclaim, and free and clear of and without deduction or withholding for or on account of any taxes..
c. The Author shall discharge fifty percent (50%) of the fee upon the signing hereof. The Author shall discharge an additional twenty-five percent (25%) of the fee when the book cover and layout have been signed off on by the Author and shall discharge the balance of the fee within 14 days from the date that OKP notifies the Author in writing that the Services have been completed or within 3 months from entering into this Agreement whichever is the earlier.
- INTELLECTUAL PROPERTY
a. Except with respect to the limited licence granted to OKP under this Agreement, the Content shall at all times remain the property of the Author and, if applicable, the Author’s licensors. OKP is granted a limited, non-exclusive and non-transferable right and licence to use the Content, including the publication cover and marketing images, to exercise its rights hereunder, including without limitation the right and licence to display, distribute, reproduce and store the Content on OKP’ on-premises systems and off-site systems operated by third party service providers including the right and licence to display, distribute, reproduce and store the Content on any cloud based service providers.
b. The Author does not have and shall not acquire pursuant to this Agreement any right, title or interest in or to OKP’ trade names, trademarks, service marks, copyright, trade secrets, patents or any other of OKP’ intellectual or proprietary rights. OKP does not have and shall not acquire pursuant to this Agreement any right, title or interest in or to the Author’s trade names, trademarks, service marks, copyright, trade secrets, patents or any other of the Author’s intellectual or proprietary rights.
c. Any files created by OKP at its own expense remain the property of OKP. Any such files will be maintained securely or destroyed upon the cessation or termination of this Agreement and the usage of such files is governed by the terms of this Agreement. All Content remains the property of the Author at all times.
The parties may exchange information that is of a confidential and proprietary nature, both technical and commercial (collectively, the “Confidential Information”). Each party agrees not to disclose to any third parties any Confidential Information received from the other and agrees not to use any Confidential Information received from the other for any purpose other than performance under this Agreement. The parties acknowledge and agree that their respective remedy at law for any actual or threatened breach of this provision would be inadequate and that each party shall be entitled to specific performance or injunctive relief, or both, in addition to any damages otherwise recoverable in law. The confidentiality provisions of this clause will not apply to information that: (a) is not in fact kept as confidential by the disclosing party: (b) was known to the receiving party prior to its disclosure by the disclosing party, or is received by the receiving party, other than from a source that the receiving party knows is subject to a confidentiality agreement with the disclosing party: (c) is developed by the receiving party independently of its disclosure by the disclosing party, without use of the confidential or proprietary information, by one or more person(s) who do not have access to the confidential or proprietary information: or (d) is, or becomes other than by reason of a breach of this Agreement, generally known to the public.
- LIMITATION OF LIABILITY
a. OKP does not purport to limit or exclude any liability which may not be excluded or limited by applicable law.
b. OKP does not accept and hereby excludes any liability for breach of duty other than any such liability arising pursuant to the terms of this Agreement.
c. OKP will be relieved of all liability in respect of obligations owed to the Author which we cannot fulfil for reasons beyond our control. For the avoidance of doubt such reasons include but are not limited to strikes, lock-outs or other industrial disputes, failure of a utility service or transport network, act of God, public health pandemic, 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, failure of or interruptions in telecommunications or data transmission systems, or the inability to obtain materials, labour, equipment or transportation.
d. OKP hereby expressly excludes and shall have no liability for any indirect or consequential loss and such liability is excluded whether it is foreseeable, known, foreseen or otherwise.
e. To the fullest extent permitted by law, the total liability of OKP under or in any way connected with this Agreement and whether in contract, tort (including negligence) or otherwise, including (without limitation), liability expressly provided for under this Agreement or arising by reason of the invalidity or enforceability of any term of this Agreement, shall in no circumstances exceed a sum equal to the aggregate sums paid by the Author to OKP.
f. OKP shall not bear any liability for any lack of success experienced by the Author relating to the Services particularly if the Author does not implement some or all of the recommendations provided by us.
g. The terms of this Agreement are in lieu of all other conditions, warranties or other terms concerning the appointment of OKP and the performance by OKP of its obligations hereunder which might but for this sub-clause have effect between the Author and OKP or would otherwise be implied into or incorporated into this Agreement or any collateral contract, whether by statute, common law or otherwise all of which are hereby excluded.
- WARRANTIES; INDEMNITY
a. The Author represents and warrants to OKP on a continuing basis that:
- it has the full, right, power and authority to enter into and fully perform this Agreement;
- the Content does not:a. infringe any copyright, trademark, trade secret, patent or other intellectual property or proprietary right, or violates any right of privacy, publicity or other right of any person;
b. violate any applicable laws or regulations, including without limitation any export controls; and
c. contain any recipes, formulae or instructions that, if implemented, might be injurious to end users, retailers or others; and
- the Author has used its best endeavours to ensure that any digital reproduction of the Content furnished to OKP does not and shall not contain any viruses, Trojan horses, trap doors, worms or any other malicious computer programming routines that might damage a computer system.
b. Except to the extent caused by the gross negligence or wilful misconduct of OKP, the Author hereby indemnifies and agrees to indemnify OKP and its officers, directors, employees and agents on demand from and against any and all third-party claims, actions, proceedings, damages and expenses (including reasonable legal fees and costs) arising out of or in any way connected with (a) the Services or otherwise connected with the publication of the Content; or (b) any breach by you of these Terms and Conditions. We shall provide notice to you promptly of any such claim, suit or proceeding and shall assist you, at your expense, in defending any such suit or proceeding where applicable.
a. The Author shall not assign, transfer or sub-contract any of its rights nor delegate any of its obligations hereunder without the prior written consent of OKP.
b. The Author agrees that OKP may at any time during the currency of this Agreement assign its rights and obligations under this Agreement to any company/business that is controlled by Orla Kelly, and, upon completion of any such assignment (including the assumption by the transferee of all of OKP’ remaining obligations under this Agreement) OKP shall be released from, and shall have no further obligations under, this Agreement. The Author shall promptly execute all documents reasonably requested by OKP to effect, perfect, record or implement any such assignment, and shall promptly comply with any other reasonable requests of OKP or its successors or assigns in respect of any such assignment.
c. NO PARTNERSHIP
Nothing contained in this Agreement shall be deemed to create any partnership, agency, joint venture or fiduciary relationship between OKP and the Author for any purpose.
d. GOVERNING LAW AND JURISDICTION
This Agreement and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with the laws of the Republic of Ireland and the parties hereby submit to the exclusive jurisdiction of the courts of the Republic of Ireland as regards any dispute or proceedings arising out of or in connection with this Agreement.
Any notice or other communication required or permitted under the terms of this Agreement shall (unless otherwise provided) regardless of whether the applicable subsection of this Agreement contemplates email delivery of such notice or communication, may be done via email. As an alternative to email, any notice shall be in writing and shall be delivered in person or sent by registered post, properly posted and fully prepaid in an envelope properly addressed to the respective parties at their address as set out above or to such other address as may from time to time be designated by notice hereunder. Any such notice shall be in the English language and shall be considered to have been given at the time when actually delivered if delivered in person or 48 hours after posting if sent by registered post in the manner hereinbefore provided.
In the event that any clause of these Terms and Conditions shall be determined by a court to be invalid, unlawful or unenforceable to any extent, such clause shall to that extent be severed from the remaining provisions which will continue to be valid to the fullest extent permitted by law.