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In so far as the context admits these terms and conditions are deemed to be incorporated into any agreement entered into with Refreshed Direct for the provision of list rental services
In this Agreement the following expressions shall have the following meanings:-
"this Agreement" means the terms and conditions set out hereunder
"the Client" means the individual firm or limited company specified to whom the Services are to be provided
"the Information" means any information (in whatsoever form) (including without limitation any list of names and addresses of individuals and/or businesses) contained in the Media
"the Media" means the records, tapes or other materials and documents by which the Information is communicated to the Client
"the Services" means the Media and the services to be provided by Refreshed Direct in accordance with this Agreement (details of such services being set out below)
"the User" means that individual firm or limited company or other party as may be specified below that is to use the Services
"Bureau" means any third party which is responsible to the Client and/or the User and which is to assist the Client and/or the User in using the Services
Subject to Clause 17 hereunder this Agreement and any other agreement between Refreshed Direct and the Client shall be upon the terms and subject to the conditions set out below to the exclusion of any other terms and conditions whether or not the same are endorsed upon delivered with or referred to in the order or any other document delivered sent or otherwise disclosed by the Client to Refreshed Direct. The Client has not relied upon any representations or warranties by Refreshed Direct save as expressly provided in this Agreement
4.1 The charges payable for the Services ("the Charges") shall be as specified below
4.2 Refreshed Direct may at its option require the charges to be paid (either in full or part) before the Services are provided to the Client but otherwise the Charges shall be due and payable to Refreshed Direct within 30 days of the date of Refreshed Direct's invoice therefor
4.3 Interest at an annual rate of 5% above Barclays Bank plc's base rate from time to time shall accrue daily and be calculated on a daily basis on any sum overdue from the date of invoice until payment in full of the Charges (whether before or after any judgment)
4.4 Unless expressly stated otherwise the Charges shall be exclusive of VAT (which for the avoidance of doubt shall be payable at the prevailing rate by the Client in accordance with the terms and conditions hereof)
4.5 The Client shall have no right of set-off against Refreshed Direct in respect of any claims it may have against Refreshed Direct (whether in connection with this Agreement or otherwise)
4.6 Additional charges shall be payable for any additional services which the Client requires Refreshed Direct to provide subsequent to any quotation given by Refreshed Direct
4.7 All delivery and handling charges shall be payable by the Client
4.8 In the event that Refreshed Direct agrees to supply the Information for the purpose of deduplication against other data held by the Buyer and on the basis that the Buyer shall only pay a proportion of the price reflecting the "Net Names" actually used, any claim for credit for the unused portion of the Information
4.8.1 must be made within a period not exceeding four months from the date of delivery, unless otherwise agreed in writing by Refreshed Direct; and
4.8.2 must be supported by a deduplication report or certificate from a recognised data processing bureau or other independent agency approved by Refreshed Direct.5.1 Any quotations made by Refreshed Direct are made on the basis that all services quoted for will be ordered and in accordance with costs prevailing at the time of quotation. Quotations and the Charges are subject to amendment at Refreshed Direct's discretion on or at any time after acceptance in order to meet any increase in such costs (due to whatsoever cause)
5.2 Refreshed Direct may correct any charges payable under this Agreement and invoices in respect thereof where typographical clerical or other errors have been made
Property and the copyright (and all other intellectual property rights) in the Media and the Information (other than any information which was passed to Refreshed Direct by the Client in connection with the Services or which has been obtained from any third party by Refreshed Direct) shall at all times remain vested in Refreshed Direct
7.1 The Client undertakes:-
7.1.1 that it shall not (without the prior written consent of Refreshed Direct) re-use copy reproduce publish or transmit the Information (or any part thereof) in any manner whatsoever
7.1.2 that it shall not disclose communicate or make available the Information or any confidential information (as defined hereunder) to any third party Provided always that the Client shall be permitted to disclose the Information to any User and/or Bureau specified in this Agreement solely in accordance with Clause 8.4 hereunder
7.2 For the purposes of sub-clause 7.1.2 hereof the expression "confidential information" shall mean (as the context may require)
7.2.1 any information concerning Refreshed Direct's trade secrets or business dealing transactions or affairs which may come to the notice of the Client and/or
7.2.2 any information or know-how relating to the methods or techniques used by Refreshed Direct in devising and developing the Services and any tapes documents or other materials comprising any part of such information and/or know-how made available by Refreshed Direct hereunder
7.3 The provisions of sub-clause 7.2 hereof shall not apply to any confidential information to the extent that the Client is required to divulge the same by a Court tribunal or governmental authority with competent jurisdiction
8.1 If the Client has ordered single use of the Information it shall use the Information once only and within 3 months of being supplied by Refreshed Direct. If the Client has ordered multiple use of the Information the Client may use the Information an unlimited amount of times within 12 months of being supplied by Refreshed Direct. Irrespective of single or multiple use the Client shall only use the Information for the purpose specified to Refreshed Direct in accordance with sub-clause 8.2 hereunder Provided that the Client shall be entitled to use the Information subsequently in respect only of those individuals and/or businesses which become bona fide customers of the Client as a result of a mailing carried out using the Information and in accordance with this Agreement.
8.2 It is a condition of the provision of the Services that prior to such provision the Client shall specify in writing to Refreshed Direct the full name and address of the User and the Bureau and such information concerning such User and Bureau as Refreshed Direct shall reasonably require together with the estimated date upon which the Information is intended for use and the purposes of such use.
8.3 A reasonable time prior to such use the Client shall provide to Refreshed Direct a sample of all promotional material to be delivered to any and all names and addresses included within the Information and the Client further expressly agrees that it shall not send out any promotional material if so required by Refreshed Direct
8.4 Subject always to sub-clause 8.1 above the Client may use the Information for the bona fide business purposes of the User and may provide the Information to the User and/or Bureau solely for such purposes to be carried out but the Client shall procure that the User and the Bureau shall (where the context so admits) fully comply with the obligations of the Client under this Agreement as if they were each a party hereto (without limitation including the provisions of Clause 7.1 hereof) and shall supply the User and Bureau with a copy of these terms and conditions
8.5 The Information will contain a number of check names and addresses in order to monitor the usage and to ensure that the Information is used in accordance with this Agreement
8.6 The Client agrees that (and shall procure that the User and/or Bureau shall agree that) Refreshed Direct shall be entitled to publicise or disclose to third parties the existence of or the outline of the subject matter of this Agreement
8.6.1 Where the Information is used in contravention of the provisions of the Agreement the Client shall be liable to pay Refreshed Direct a sum equivalent to the value of the Charges on each occasion that the Information is so used which sum shall be payable in accordance with the provisions of Clause 4.2 above
8.6.2 Client expressly agrees and acknowledges that the provisions of sub-clause 8.6.1 above shall operate by way of liquidated damages and are a genuine pre-estimate of Refreshed Direct's loss in such circumstances
8.7 All computer tapes must be returned to the address specified on the tape within one month of completion of the mailing
9.1 While all reasonable endeavours will be made to provide the Services in accordance with any delivery dates or manner specified and to ensure that the Information is accurate Refreshed Direct does not warrant the accuracy or fitness for any particular purpose of the Information (or any part thereof) and nor does it warrant or guarantee the results of any mailing and Refreshed Direct shall not be liable to the Client for any loss damage costs or expenses suffered or incurred by the Client (and/or the User and/or the Bureau) by reason of the Services not being provided on the said dates or the said manner or any Information being inaccurate or in the event of any defect in or failure of any mailing
9.2 Without prejudice to any other provision contained in this Agreement
9.2.1 Refreshed Direct shall not be liable (whether in contract or in negligence or other tort or otherwise) for any indirect or consequential loss of any kind whatsoever (including without limitation loss of profit or loss of business) suffered by the Client (and/or the User and/or the Bureau) as a result of or arising out of the use of the Services or otherwise in connection with this Agreement
9.2.2 Refreshed Direct's maximum aggregate liability hereunder whether for breach of this Agreement or otherwise and whether or not arising from the negligence of Refreshed Direct or any other person involved directly or indirectly in the provision of the Services shall not exceed an amount equal to the Charges (exclusive of VAT) payable to Refreshed Direct hereunder in respect of the particular mailing the subject of such breach or other claim
9.3 The provisions of sub-clauses 9.1 and 9.2 above shall not apply to any liability in respect of death or personal injury arising out of the negligence of Refreshed Direct its servants or agents
9.4 The Client hereby expressly agrees that time shall not be of the essence in relation to Refreshed Direct's obligations under this Agreement and that upon leaving the premises of Refreshed Direct the Media shall be at the risk of the Client
The Client shall indemnify and keep indemnified Refreshed Direct from and against any and all liability loss claims demands costs or expenses of any kind whatsoever which it shall at any time suffer or incur
11.1 The Client undertakes that it shall not use the Information for any unlawful purpose and that at all times it shall comply fully with all relevant statutory requirements and regulations from time to time in force (including without limitation the provisions of the Data Protection Act 1984 and 1998 in so far as the provisions are applicable)
11.2 The Client undertakes to work within all of the relevant codes of practice for the advertising industry including without limitation. "The British Code of Advertising Practice", "The British Code of Sales Promotion Practice" and "The Advertising Associations "Standards of Practice" in List and Database Management (as such codes are amended and re-drafted from time to time)
Save as expressly provided in this Agreement or to the extent that it is unlawful for any said representations, terms, warranties or conditions to be excluded Refreshed Direct makes or includes no representations, terms, warranties or conditions (whether express or implied (by statute or otherwise) in connection with the Services or use thereof by the Client and/or User and/or Bureau or otherwise in connection with the Agreement)
13.1 Refreshed Direct shall be entitled to terminate this Agreement immediately by written notice to the Client if:-
13.1.1 The Client is guilty of any material breach of the provisions of this Agreement
13.1.2 The Client has had a bankruptcy order made against it or has made an arrangement or composition with its creditors or (being a body corporate) has had convened a meeting of creditors (whether formal or informal)or has entered into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation or has a receiver manager administrator or administrative receiver appointed of its undertaking or any part thereof or a resolution has been passed or a petition presented to any Court for the winding-up of the Client or for the granting of an administration order in respect of the Client or any proceedings have been commenced relating to the insolvency of the Client
13.2 The termination of this Agreement shall be without prejudice to the rights of Refreshed Direct accrued prior to such termination or any provision which by its terms is intended to survive the termination of this Agreement (including without limitation Clause 6 and Clause 9 hereof)
Notwithstanding anything herein contained neither party shall be under any liability to the other in respect of any failure to perform or delay in performing any of its obligations hereunder which is due to any cause of whatsoever nature beyond its reasonable control and no such failure or delay shall be deemed for any purpose to be a breach of this Agreement
The rights granted to the Client hereunder are personal to it and the Client shall not assign or grant any rights in respect of or otherwise deal in the same Refreshed Direct shall be entitled to assign or sub-contract the provision of the Services (or any part thereof) to any third party and reference in the terms and conditions to Refreshed Direct shall be deemed to include reference to such assignee or sub-contractor
Failure or delay by either party to enforce any of the provisions of this Agreement shall not operate as a waiver of any of its rights hereunder or operate so as to bar the exercise or enforcement thereof at any time or time
This Agreement constitutes the whole of the terms agreed between the parties hereto in respect of the subject matter hereof and supersedes all previous negotiations understandings or representations and shall be capable of being varied only by an instrument in writing signed by a duly authorised representative of each of the parties hereto
This Agreement is severable in that if any provision hereof is determined to be illegal or unenforceable by any Court of competent jurisdiction such provision shall be deemed to have been deleted without affecting the remaining provisions of this Agreement
No cancellations will be accepted after instructions to commence output have been issued by Refreshed Direct. In the event that Refreshed Direct accepts cancellation of this order 75% of the order value will be payable by the Buyer.
This Agreement shall be governed by and construed in accordance with English law and the parties hereto agree that the English Courts shall have exclusive jurisdiction. By accepting this Confirmation of Order the Buyer agrees to use the services and/or data upon and subject to the payment details above and the terms and conditions above.
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