Terms And Conditions
- Navigation
Background
The Supplier is a direct mailing company who provides enclosing and printing for customers and also cleans and enhances customer’s data as well as sourcing data for customer’s mailings.
Agreed terms
1. Interpretation
The definitions and rules of interpretation in this clause apply in these terms and conditions (Conditions).
Contract: the Customer's purchase order and the Supplier's acceptance of it, or the Customer's acceptance of a quotation for Services by the Supplier under condition 2.2.
Customer: the person, firm or company who purchases Services from the Supplier.
Data: names, addresses, telephones numbers, fax numbers, or email addresses or other data purchased by the Customer from the Supplier.
Goneaway: (a) in the case of a name and address an address to which (i) an item mailed cannot be delivered because the intended recipient has never been, or is no longer at the address or (ii) an address to which mail cannot be delivered or (iii) the item is returned to the Customer from Royal Mail because they are unable to deliver the same (b) in the case of a telephone number (i) is a dead line or wrong number or (ii) is a fax number (and not shared by a phone) or (iii) the customer is no longer contactable on the number provided (c) in the case of a fax number (i) is a dead line or a wrong number or (ii) a phone number (and not shared by a fax machine) or (iii) the customer is no longer contactable on that number (d) in the case of an email address is an address email at which the recipient is not be reachable for a number of technical and other reasons (such as, but not limited to, the account being disabled, the mailbox full, there being a limit on message size, or there is an anti-spam policy, firewall).
In-put Material: all documents, brochures, leaflets, literature, envelopes, letter headed paper, post cards, information and materials provided by the Customer relating to the Services including, computer programs, data, reports and specifications.
Mailing: the printing, enclosing and mailing of the Customer’s In-Put Material or the material supplied by the Supplier based on the Customer’s requirements.
Multi Use: the supply of Data on the basis that the Customer is able to use the Data on an unlimited amount of occasions within a specified time period (as agreed between the Supplier and the Customer from time to time) from date of the purchase of the Data from the Supplier.
Outright Use: the supply of Data on the basis that the Customer is permitted to use the Data indefinitely.
Pre-pack: a sample of the Mailing to be carried out by the Supplier containing the In-put Material or such other material as is agreed between the parties which has been prepared by the Supplier in accordance with the Customer’s instructions.
Services: the services to be provided by the Supplier under the Contract, and in particular the provision of Data and/or Mailing together with any other services which the Supplier provides or agrees to provide to the Customer.
Single Use: Data provided to the Customer by the Supplier on the basis that the Data will be used on a one off basis. A one off basis is as a single mailshot, phone call, fax or email. If the Customer uses the Data for an additional time, the Data automatically becomes Multi Use data for the purposes of these Conditions, and is subject to such additional charges as the Supplier may charge from time to time.
Supplier: DMS Limited (Company Number: 067115567) whose registered address is, Victory House, Unit 5, Denington Road, Wellingborough, Northamptonshire, NN8 2QH.
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
1.1 Condition, schedule and paragraph headings shall not affect the interpretation of these conditions.
1.2 Where the words include(s), including or in particular are used in these terms and conditions, they are deemed to have the words without limitation following them and where the context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them.
1.3 Any obligation in the Contract on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.
2. Application of conditions
2.1 These Conditions shall apply to and be incorporated into the provisions of the Services and shall prevail over any inconsistent terms or conditions contained, or referred to, in the Customer's purchase order, confirmation of order, acceptance of a quotation or specification, or implied by law, trade custom, practice or course of dealing.
2.2 The Customer's purchase order, or the Customer's acceptance of a quotation for Services by the Supplier, constitutes an offer by the Customer to purchase the Services specified in it on these Conditions. No offer placed by the Customer shall be accepted by the Supplier other than by a written acknowledgement issued and executed by the Supplier or (if earlier) by the Supplier starting to provide the Services when a contract for the supply and purchase of those Services on these Conditions will be established.
2.3 Quotations are given by the Supplier on the basis that no Contract shall come into existence except in accordance with condition 2.2. All quotations given by the Supplier are, unless otherwise agreed in writing, valid for a period of 30 days from the date of issue.
3. Commencement and duration
3.1 The Services supplied under the Contract shall be provided by the Supplier to the Customer from the date of acceptance by the Supplier of the Customer's offer in accordance with condition 2.2 and until the supply of the Services has been completed.
3.2 Where the Services are supplied by the Customer to the Supplier on an ongoing basis, the Services supplied shall continue to be supplied unless the Contract is terminated by one of the parties giving to the other not less than 3 months' notice, unless the Contract is terminated in accordance with condition 15.
4. Supplier's obligations
4.1 The Supplier shall use reasonable endeavours to provide the Services to the Customer and to meet any performance dates specified by the Customer, but any such dates shall be estimates only and time shall not be of the essence of the Contract.
4.2 In the event that the Supplier is providing Data to the Customer, the Customer hereby acknowledges that delivery of the Data can take up-to 7 working days from receipt by the Supplier of cleared funds in respect of the Data.
5. Customer's obligations
5.1 The Customer will:
(a) co-operate with the Supplier in all matters relating to the Services;
(b) provide, in a timely manner, such In-put Material and other information as the Supplier may request and ensure that it is accurate in all material respects;
(c) ensure the accuracy of all In-Put Material;
(d) at its own expense retain duplicate copies of all In-Put Material and insure against its accidental loss or damage;
(e) ensure that its equipment is suitable for the purposes for which it is used in relation to the Services; and
(f) obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services, and the use of In-put Material before the date on which the Services are to start.
5.2 If the Supplier's performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, sub-contractors or employees, the Supplier shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay.
6. Description of the Data
6.1 The quantity and description of the Data shall be as set out in the Supplier’s quotation or acknowledgement of order.
6.2 All descriptive matter, specifications and advertising issued by the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Data and Services described in them. They shall not form part of the Contract and this is not a sale by sample.
7. Goneaways
7.1 The Data may contain a number of Goneaways and that unless the level of Goneaways exceeds the following percentages then the Customer accepts that no replacement Data or refund shall be due in respect of these Goneaways:
(a) Addresses: 6%
(b) Telephone Numbers: 10%
(c) Fax Numbers: 10%
7.2 The Customer hereby acknowledges and accepts that:
(a) where Data contains a salutation, forename, initials, or surname not all elements may be present for each record;
(b) that duplication may exist in different databases;
(c) in the case of business data a named contact may comprise an individual name or job title or both and that people change positions frequently so the addressee may no longer be at that address;
(d) email addresses change frequently and the recipient may not be reachable for a number of technical and other reasons
and in these cases, no replacement Data or refunds will given.
7.3 Any claims for replacement Data or refund for Goneaways must be made with supporting documentation within 60 days of the date of purchase. Replacement Data or a refund will not be given where supporting documentation is not provided.
8. The Customer’s rights to the Data
8.1 The Customer may not use, copy, modify, transfer, the Data in whole or in part, except as expressly provided for in these Conditions.
8.2 The Customer only obtains the right to use the Data once payment for the Data has been received by the Supplier from the Customer in cleared funds.
8.3 Where the Data is provided on a Single Use basis, the Customer will be required to sign a Single Use form acknowledging that the Customer has purchased the Data on a Single Use basis.
8.4 Where the Data is provided on a Multi Use basis the Data can be used on a number of occasions over a period of time agreed between the Supplier and the Customer.
8.5 Where the Data is purchased on an Outright Use basis, once payment for the Data has cleared, the Customer has the right to use the Data on an indefinite period.
8.6 The Customer agrees not to use the Data in any way other than for mailing, phoning, faxing or emailing for marketing and promotional purposes relating to its business or that of any of its clients.
8.7 The Customer acknowledges that it is strictly prohibited from reselling the Data in any circumstances.
9. The Pre-pack – Mailings
9.1 Wherever possible, the Supplier and the Customer shall agree a Pre-pack for the Mailings which are to be provided by the Supplier.
9.2 Once the Pre-pack has been agreed and signed off by the Supplier and the Customer, in accordance with condition 9.1 no amendment shall be made to it except in accordance with condition 11 and condition 17.
10. Rights in Input Material
10.1 The property and any copyright or other intellectual property rights in:
(a) any In-Put Material shall belong to the Customer; and
(b) any operating software and system which manipulates the In-Put Material shall belong to the Supplier.
10.2 The Customer warrants that any In-Put Material and its use by the Supplier for the purpose of providing the Service will not infringe the copyright or other rights of any third party and the Customer shall indemnify the Supplier against any and all loss, damages, costs, expenses or other claims arising from any such infringement.
11. Change control – Mailings
11.1 If either party requests a change to the scope or execution of the Services, the Supplier shall, within a reasonable time, provide a written estimate to the Customer of:
(a) the likely time required to implement the change;
(b) any variations to the Supplier's charges arising from the change; and
(c) any other impact of the change on the terms of the Contract.
11.2 The Supplier may, from time to time, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services. Where practicable, the Supplier will give the Customer at least 48 hours notice of any change.
11.3 The Customer agrees that if the current published Royal Mail postage rates change at any time during or before a job has commenced, then the Customer hereby agrees that if the postage price increases, the Customer will be responsible for the increased cost, which is in addition to the Supplier’s charges.
11.4 Where the Service provided by the Supplier is the manipulation of data the Customer grants to the Supplier a non-exclusive licence to reformat and store such data either by itself or in combination with other information.
11.5 The Supplier may correct any typographical or other errors or omissions in the In-Put Material without any liability to the Customer.
11.6 If the Customer wishes the Supplier to proceed with the change, the Supplier has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its charges and any other relevant terms of the Contract to take account of the change.
11.7 The Supplier may charge for its time spent in assessing a request for change from the Customer on a time and materials basis in accordance with condition 12.
12. Charges and payment
12.1 Condition 12.2 shall apply if the Supplier provides the Services on a time and materials basis. Condition 12.3 shall apply if the Supplier provides the Services for a fixed price. The remainder of this condition 12 shall apply in either case.
12.2 Where the Services are provided on a time and materials basis:
(a) the charges payable for the Services shall be calculated in accordance with the Supplier's standard daily fee rates, as amended from time to time by the Supplier giving not less than 2 months written notice to the Customer;
(b) all charges quoted to the Customer shall be exclusive of VAT which the Supplier shall add to its invoices at the appropriate rate; and
(c) the Supplier shall invoice the Customer monthly in arrears for its charges for time, expenses and materials (together with VAT where appropriate) for the month concerned, calculated as provided in this condition 12.2 or on such other terms as are agreed between parties from time to time.
12.3 Where the Services are provided for a fixed price, the total price for the Services shall be the amount set out in the quotation.
12.4 The Customer shall pay each invoice submitted to it by the Supplier, in full and in cleared funds (without deduction or set-off), within 30 days of the invoice date, save that where the Supplier is supplying Data, payment must be received in cleared funds prior to the Data being despatched to the Customer.
12.5 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier on the due date, the Supplier may:
(a) charge interest on such sum from the due date for payment at the annual rate of 5% above the base lending rate from time to time of Barclays Bank Plc, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and the Supplier may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and
(b) suspend all Services until payment has been made in full.
12.6 Time for payment shall be of the essence of the Contract.
12.7 All sums payable to the Supplier under the Contract shall become due immediately on its termination, despite any other provision. This condition 12.7 is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
12.8 In the event that payment made by the Customer by cheque or credit card or otherwise is subsequently reversed by the Customer or its bank or by its card issuer or otherwise, any and all rights the Customer may have in the Data shall immediately cease and payment for the full amount will remain due to the Supplier and the Supplier reserves the right to use any and all applicable legal remedies to recover payment from the Customer as well as any additional costs (including legal fees) incurred by the Supplier in so doing.
12.9 The Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer.
13. Limitation of liability - THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF THIS CONDITION
13.1 This condition 13 set out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees and sub-contractors) to the Customer in respect of any breach of the Contract or any use made by the Customer of the Services, or any part of them and any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
13.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
13.3 Nothing in these Conditions limits or excludes the liability of the Supplier for death or personal injury resulting from negligence; or for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by the Supplier.
13.4 Subject to condition 13.2 and condition 13.3
(a) the Supplier shall not be liable, whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation or otherwise for loss of profits, loss of business depletion of goodwill and/or similar losses, or loss of contract, or loss of corruption of data or information, or, any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
(b) the Supplier's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of the Contract shall be limited to the price paid for the Services.
14. Data protection
14.1 The Customer acknowledges and agrees that details of the Customer's name, address and payment record may be submitted to a credit reference agency, and personal data will be processed by and on behalf of the Supplier in connection with the Services.
14.2 The Customer agrees to:
(a) comply with all data protection legislation as amended from time to time; and
(b) ensure that in using the Data it complies with the codes of best practice laid down by the Direct Marketing Association and other advisory bodies in the industry of direct marketing; and
(c) to be responsible for obtaining and applying to the Data any necessary suppression files including, where appropriate, the Mail Preference Service, the Telephone Preference Service and/or the Email Preference Service suppression files unless the Data is supplied by the Supplier to the Customer in which case, the Supplier will perform this service.
14.3 The Customer agrees to accept responsibility for its actions whilst using the Data and to indemnify the Supplier in respect of any claim howsoever arising from use of the Data made by it, its agents, employees or clients and/or arising from the materials dispatched using the Data by it, its agents, employees or clients, including but not limited to defamation, obscenity or infringement of others' rights.
15. Termination
15.1 Subject to condition 15.3, the Contract shall terminate automatically on completion of the Services.
15.2 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other on giving the other not less than 3 months written notice or immediately if:
(a) the other party commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
(b) an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party; or
(c) an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
(d) a receiver is appointed of any of the other party's assets or undertaking, or circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party's assets; or
(e) the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or
(f) the other party ceases, or threatens to cease, to trade; and
(g) there is a change of control of the other party (as defined in section 574 of the Capital Allowances Act 2001).
15.3 On termination of the Contract for any reason:
(a) the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt; and
(b) the accrued rights of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
16. Force majeure
16.1 The Supplier shall have no liability to the Customer under the Contract if it is prevented from or delayed in performing its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier 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 sub-contractors.
17. Variation
17.1 Subject to condition 11, no variation of the Contract or these Conditions shall be valid unless it is in writing and signed by or on behalf of each of the parties.
18. Waiver
18.1 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.
19. Severance
19.1 If any provision (or part of a provision) of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain in force.
20. Assignment
20.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
20.2 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
21. No partnership or agency
21.1 Nothing in the Contract is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
22. Rights of third parties
22.1 The Contract is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns and is not intended to benefit, or be enforceable by, anyone else.
23. Notices
23.1 Notice given under the Contract shall be in writing, sent for the attention of the person, and to the address given in the Contract (or such other address or person as the relevant party may notify to the other party) and shall be delivered personally or sent by pre-paid, first-class post or recorded delivery. A notice is deemed to have been received, if delivered personally, at the time of delivery, in the case of pre-paid first class post or recorded delivery, 48 hours from the date of posting and, if deemed receipt under this condition 23 is not within business hours (meaning 9.00am to 5.30pm Monday to Friday on a day that is a business day), at 9.00am on the first business day following delivery. To prove service, it is sufficient to prove that the envelope containing the notice was properly addressed and posted.
24. Governing law
24.1 The Contract and any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the law ofEnglandandWales.
