Reference number: 25 HAMILTON HOUSE MAILINGS plc ("Hamilton")
STANDARD TERMS AND CONDITIONS OF TRADING
1. DEFINITIONS AND INTERPRETATION
In these conditions, unless the context otherwise requires the following words and expression shall have the meanings set out next to them:- " Conditions" means the terms and conditions set out in this document; “Confirmation of order” means a written confirmation of order sent to the customer by Hamilton setting out the Services; "Contract" means the legally binding agreement between Hamilton and the customer arising out of the customer's signed Confirmation of Order being received by Hamilton in accordance with Clause 3; "Goods" means any goods supplied by Hamilton in connection with the Services; "Guarantee Fee" means such fee as is agreed between Hamilton and the customer in relation clause 6(2); "Input Material" means any document, map, plan, graph, drawing, photograph, film, negative, computer disc or other materials, data or information supplied by the customer to Hamilton relating to the Services; "Mailing List" means any list compiled by Hamilton or used by Hamilton in connection with the Services but not supplied to the customer; "the Services" means the services specified in the Confirmation of Order; “Supplied” means any mailing list supplied by Hamilton to the customer in connection with the Services; “Data Protection Act 1984” means that act and any other relevant act which supplements or replaces that act. “Royal Mail” means the national postal service operated by the Post Office, or any other postal service operated under licence from Postcomm.
The headings in these Conditions are for ease of reference only and shall not be taken into account in the construction or interpretation of any provision to which they refer. References to any statute or statutory provision include a reference to that statute or statutory provision as from time to time amended or re-enacted.
The singular includes the plural and vice versa and any gender includes any other gender.
2. APPLICABILITY OF CONDITIONS
The provision of the Services and the supply of Goods in relation thereto by Hamilton are subject to the provisions of the Confirmation of Order and the Conditions and the Conditions override all other express or implied terms and conditions contained in any order, correspondence or other communication with the customer other than the Confirmation of Order. No variation of the Conditions will be binding on Hamilton unless it is in writing and signed by a director of Hamilton. If there is a conflict between the provisions of the Conditions and any provision of the Confirmation of Order, the Confirmation of Order shall take precedence over the Conditions.
3. ACCEPTANCE OF CONFIRMATION OF ORDER
The Confirmation of Order is open for acceptance by the customer by signing and returning a copy to Hamilton without making any alterations thereto without Hamilton's prior consent within 30 days of the date of the Confirmation of Order. Hamilton reserves the right to refuse to proceed with any order not accepted in this manner, or to proceed subject to such amendments to the Confirmation of Order as are agreed in writing between Hamilton and the customer.
4. PRICE AND PAYMENT
(1) Hamilton will provide the Services at the prices specified in the Confirmation of Order. Hamilton shall charge the appropriate amount of value added tax due whether or not included on the Confirmation of Order.
(2) The customer will pay for the Services at the times and in the manner specified in the Confirmation of Order.
(3) If no such provision is made in the Confirmation of Order, the customer will pay any invoice rendered by Hamilton in full within 28 days of the invoice date. The customer shall not be entitled to make any deduction from any payment due to Hamilton in respect of any set-off or counter-claim.
(4) Hamilton reserves the right to correct prices and invoices where typographical, clerical or other errors have been made in the Confirmation of Order or in any invoice.
(5) If the customer fails to pay any sum due to Hamilton under the Contract within 70 days of the invoice date, Hamilton reserves the right to charge interest on the outstanding amount at a rate of either 3% per month or £25 per week, whichever is the greater, for each week or part of a week from the date of invoice until the date payment is received. Hamilton will write to the customer to remind the customer of this potential charge and will invoice for the charge once the original invoice is paid, or in the event of the matter going to court, will add it to the sum claimed in court.
(6) Title to any Goods supplied by Hamilton shall not pass to the customer until all payments in respect thereof have been made in full. The Goods shall be at the sole risk of the customer from the time of delivery.
5. CUSTOMER'S OBLIGATIONS
(1). GENERAL OBLIGATIONS
(a) The customer shall:-
(i) supply at its own expense Hamilton with all necessary Input Material within sufficient time to enable Hamilton to provide the Services in accordance with the Contract and shall ensure the accuracy of all Input Material acknowledging that Hamilton may not have the time nor the expertise to check the accuracy of any input material nor any material printed by Hamilton or its agents on behalf of the customer.
(ii) at its own expense retain duplicate copies of all Input Material and insure against its accidental loss or damage; Hamilton shall have no liability for any such loss howsoever caused;
(iii) if appropriate ensure that it complies in all respects with The British Code of Advertising Practice, the British Code of Sales Promotion and Practice, the Advertising Association Code of Practice covering the use of personal data for advertising and direct marketing purposes and all other appropriate codes of conduct;
(iv) ensure that any Input Material does not infringe any copyright owned by any third party;
(v) ensure that no Input Material is defamatory, obscene, indecent or otherwise illegal or unlawful and shall indemnify Hamilton against any loss, claims, damages, costs and expenses howsoever arising in connection with any Input Material which is actually or allegedly defamatory, obscene or indecent;
(vi) ensure that if necessary it is registered under the Data Protection Act 1984 and that it complies fully with the terms of such registration and the provisions of that act;
(vii) and inspect the Goods on delivery of the same (the customer's attention is drawn to the provisions of clause 7).
(2) OBLIGATIONS IN CONNECTION WITH SUPPLIED MAILING LISTS
(a) The customer shall:-
(i) state in writing at the time of making the order if the lists are to be de-duplicated. Where no instruction is received Hamilton will not de-duplicate the lists.
(ii) inspect the Supplied Mailing List on delivery of the same and verify that it is as ordered (the customer's attention is drawn to the provisions of clause 7);
(iii) use the Supplied Mailing List within 6 months of the date of supply and shall keep the copy of the Supplied Mailing List secure and safeguarded against unauthorised use or disclosure;
(iv) unless otherwise stated in the Confirmation of Order, only use the Supplied Mailing List in accordance with the use set out in the Confirmation of Order once and shall not re-use any Supplied Mailing List or part thereof without the prior written consent of Hamilton and where such consent is given the customer shall comply with any terms and conditions set out in such consent; the customer's attention is drawn to the provisions of Clause 9;
(v) shall not give, sell or rent any Supplied Mailing List or part thereof to any third party or disclose any information contained in any Supplied Mailing List to any third party without the prior written consent of Hamilton unless the third party is a client of the customer who is named in the Confirmation of Order and in any event, the customer shall fully indemnify Hamilton for any loss, claims, damages, costs and expenses howsoever arising as a direct or indirect result of the sale or rent of or the disclosure of information in a Supplied Mailing List to a third party;
(vi) not copy any Supplied Mailing List or part thereof in any way by whatever means except to make a backup copy of a computer disc or list supplied via email by Hamilton. Where such a copy is made it, and the original data supplied for mailing must be destroyed within six months of the mailing, and in any event no later than one year after supply.
(vii) not use any Supplied Mailing List for any telephone sales or telephone research unless the Confirmation of Order specifically states that telephone numbers are provided for that purpose;
(viii) at all times indemnify Hamilton against any loss, claims, damages, costs and expenses arising from any disclosure of personal data contained in any lists supplied by Hamilton to the customer in breach of the customer's registration under the Data Protection Act 1984;
(ix) use the Royal Mail or other organisation licensed by Postcomm for mailing items using data contained in the Supplied Mailing List;
(x) keep the envelopes of all items of mail returned undelivered by the Royal Mail and shall keep accurate data and records identifying the particular Supplied Mailing List containing the data in respect of which items have been returned undelivered and shall provide Hamilton with all such information concerning undelivered items as Hamilton may request;
(xi) where Input Material is to be provided, supply Hamilton with more than enough Input Material in order for the Services to be provided to cover, for example, spoilage or bad printing.
6. HAMILTON'S OBLIGATIONS
(1) Hamilton will provide the Services subject to these Conditions in a good and professional manner and in accordance in all respects with the Confirmation of Order, and will provide any Supplied Mailing List in the format specified in the Confirmation of Order.
(2) Where any dates are specified in the Confirmation of Order, Hamilton will endeavour to perform the Services by such date. If the customer requires a guarantee from Hamilton that the Services will be performed on or by a specified date then the customer must inform Hamilton and Hamilton will charge the customer a Guarantee Fee which will be shown as a separate item on the confirmation and invoice. If Hamilton fails to perform the Services by the date guaranteed then Hamilton will pay to the customer a refund equal to double the amount of the Guarantee Fee.
(3) If any data is supplied to the customer on computer disc Hamilton will check the disc prior to despatch for computer viruses. However, no warranty can be given that any computer disc supplied is free from computer virus and Hamilton will not accept any liability whatsoever for any loss or damage caused by a computer virus. The customer must always check any discs supplied himself to ensure that they are free from computer viruses.
(4) Hamilton will despatch the Supplied Mailing List and Goods to the customer by courier unless otherwise stated in the Confirmation of Order.
(5) Where the customer provides Hamilton with Input Material and there are excess items after the Services have been performed, Hamilton shall despatch the excess items to the customer at the customer's expense in such manner as the customer wishes and if the customer fails to indicate how such items should be despatched within 14 days of service of a notice by Hamilton requesting such information then the items will be despatched to the customer at the customer's expense in such manner as Hamilton may decide or destroyed, at Hamilton’s sole discretion.
(6) Where the customer requests that Hamilton keep input material either prior to or subsequent to a mailing, Hamilton reserves the right to charge for such storage at a rate of £2.50 per pallet (or part thereof) per week (or part thereof). Hamilton will not impose this charge without first giving 2 weeks notice in writing of its intention to charge for storage.
(7) By its very nature Hamilton undertakes work for a wide variety of companies, and nothing in this contract should be taken to mean that Hamilton will work exclusively for one company, and not supply services to a rival company. Where a customer wishes to ensure Hamilton does not work for a rival company this must be expressed in writing prior to work commencing. In particular but not exclusively, nothing in this contract excludes the possibility of two rival companies having mail within the same shared mailing.
7. WARRANTY AND LIMITATION OF LIABILITY
(1) Hamilton shall not be liable in respect of any defect in the Goods unless written notice of the alleged defect is given to Hamilton by the customer within 3 days of receipt of the Goods or within 3 days of discovery of the alleged defect if such defect is not reasonably apparent and provided that the customer does not use the Goods. If the claim is found to be valid Hamilton will replace the defective Goods without charge but otherwise shall have no further liability in respect thereof. However, Hamilton shall not accept any liability whatsoever if any defect is as a result of the specification provided to Hamilton by the customer or caused by a defect in any Input Material which form part of the Goods.
(2) If an inspection of a Supplied Mailing List by the customer reveals an inaccuracy in the data contained in the list the customer shall notify Hamilton of the inaccuracy within 3 days of receipt of the Supplied Mailing List and shall not use or tamper or alter the data contained in the Supplied Mailing List in any way. If the claim is found to be valid Hamilton will correct the data contained in the Supplied Mailing List at no further charge but otherwise shall have no further liability in respect thereof other than pursuant to clause 7(3) below.
(3) Hamilton shall not be liable in respect of any inaccuracy in a Mailing List or a Supplied Mailing List unless more than 2% of the addresses of business lists or more than 10% of the addresses on consumer lists are returned undelivered by the Royal Mail; or more than 1% of the names of companies contained in the Mailing List or the Supplied Mailing List are duplicated where the customer has asked in writing for the list to be de-duplicated in which case Hamilton shall reimburse the customer an amount equal to 4 times the cost of the label used for mailing purposes for each address returned undelivered or duplicated provided that the customer has delivered to Hamilton all envelopes of mail returned undelivered by the Royal Mail and paid the invoice relating to the mailing list in question but otherwise shall have no further liability in respect thereof.
(4) Subject to clauses 7(1) to 7(3) above, all conditions, warranties and representations (unless fraudulent) expressed or implied by statute, common law or otherwise in relation to the Goods and the Services provided hereunder, with the exception of liability for death or personal injury caused by the negligence of Hamilton, are hereby excluded and Hamilton shall be under no liability to the customer for:-
(a) any costs or expenses;
(b) any loss of profit, business, contracts, revenue or anticipated savings; or
(c) any special, indirect or consequential loss of any nature suffered by the customer arising directly or indirectly out of the provision of the Services or the Goods by Hamilton, its employees, its sub-contractors or its agents or any defect in the Services or the Goods.
(5) Notwithstanding the provisions of sub-Clauses 7(1) to (4), where any matter gives rise to a claim against Hamilton its liability shall be limited to a sum equal to the price paid by the customer under the Contract.
(6) Liability of Hamilton when using Royal Mail or other carrier to transport goods.
(a) The value of the property intended to be carried and/or delivered by Hamilton and also the amount of any consequential loss which might arise from damage or loss to or delay in the arrival of the said property are matters which are better known to and/or more readily ascertainable by the customer than Hamilton; indeed to some extent they cannot be known by Hamilton but are under the control of the customer.
(b) Likewise the loss in value of any goods carried by Royal Mail or any other carrier caused by Royal Mail or the carrier not delivering the goods at the time anticipated are also better known to the customer.
(c) The potential extent of the damage as defined below that might be caused or be alleged to be caused to the customer is disproportionate to the sum that can reasonably be charged by Hamilton under this agreement and Hamilton is concerned to keep down the costs of the service it provides to its customers.
(d) In the circumstances Hamilton intends to limit its liability for any damage caused to the customer as defined below to amounts which are not out of proportion to its charges and which directly relate to the liability given to Hamilton by Royal Mail in its Code of Practice and any courier contractors that it chooses to use. Hamilton strongly urges customers using Hamilton to post materials via Royal Mail to verify the level of compensation, and to note the exceptions imposed by Royal Mail as to the applicability of its Code of Practice. Where the customer requires consequential loss insurance this can be achieved via Royal Mail Special Delivery, and the customer must inform Hamilton at the time of quotation that this service is required.
(e) In this agreement “damage caused to the customer” means any damage suffered by the customer (including for the avoidance of any doubt any loss or damage to any consignment and loss of any other kind whether direct or consequential, and including any loss sustained by the customer due to the late arrival of goods) howsoever arising caused by any negligence, breach of duty or other wrongful act or omission and any breach, howsoever fundamental of any express or implied term of this agreement on the part of Hamilton its servants or agents (including for the sake of clarity Royal Mail and courier companies used to carry goods for Hamilton).
(f) In order that the customer is aware of the level of compensation that may be claimed by Hamilton from Royal Mail and courier companies, Hamilton will declare, where asked, details of the companies involved in carrying goods on its behalf. Further it will copy to the customer where asked the standard terms of contract operated by these organisations, so that the customer can see the level of compensation that may be claimed.
(g) Where a claim arises Hamilton will pursue the claim with the third party with due diligence, and will not be liable to pay any money or other form of compensation until such time as that compensation is agreed and paid by the agent, and will under no circumstance be liable for a higher level of compensation than that which is obtainable from the agent. At all times the customer will provide Hamilton with information in such a form and at such a time as to allow Hamilton to pursue its claim within the requirements of the terms of contract agreed with the agent.
(h) Where time is of the essence Hamilton urges customers to make their own arrangements directly with a carrier of their choice for the collection of goods from Hamilton’s premises and delivery to their specified addresses. For the sake of clarity Hamilton makes clear that “next day”, “three day”, “first class”, “mailsort” and other delivery services which carry an explicit delivery period do not always achieve that delivery period and the failure to achieve such delivery periods can be 10% or more. Because the achievement of deliveries by the designated time is totally outside the control of Hamilton, Hamilton cannot accept any responsibility for the failure to achieve delivery by the designated time.
(7) Procedures where Hamilton mails materials on behalf of the customer.
(a) Hamilton specifically does not guarantee to check the weight of leaflets and other items upon arrival and before posting and does not inform customers prior to the mailing of any variation in the weight of a leaflet or other item from that declared by the customer unless the customer asks in writing for this to be done.
(b) Hamilton takes all due care in the activity of filling envelopes with mail. However it is not possible to guarantee that small numbers of envelopes will not being filled exactly as required. In placing the order the customer acknowledges that it is not possible within the constraints of the time available for Hamilton to check each and every envelope and package against occasional errors caused by machine slippage or human error.
8. FORCE MAJEURE
(1) Hamilton shall not be liable for any failure or delay in the provision of the Services caused by Force Majeure provided that, as soon as Hamilton is aware of any such delay or failure, it gives written notice to the customer explaining the nature of the Force Majeure, how long it is anticipated to last and when normal service will be resumed.
(2) If the Force Majeure persists or is, in the opinion of Hamilton, likely to persist for a period longer than one month, Hamilton may terminate the Contract or the provision of the relevant part of the Services on giving the customer not less than one month's prior notice in writing.
(3) For the purposes of this clause, "Force Majeure" means:
act of God; outbreak of hostilities, riot , civil disturbance, acts of terrorism; the act of any government or quasi-governmental authority (including the refusal or revocation of any licence, consent or permit); fire, explosion, flood, fog or bad weather; power failure, failure of telecommunication lines, failure or breakdown of plant, equipment or machinery; theft, malicious damage, strike, lockout or industrial action of any kind; any other cause or circumstance beyond Hamilton's reasonable control.
9. UNAUTHORISED USE OF LISTS AND RE-USE OF LISTS
(1) Each Supplied Mailing List contains control addresses. If it transpires that a customer has used all or part of a Supplied Mailing List in breach of any of the obligations contained in the Conditions Hamilton shall invoice the customer at up to three times the applicable charge for the provision of the Supplied Mailing List that is in force from time on each occasion an unauthorised use occurs.
(2) Where a Supplied Mailing List has been provided for re-use such re-use is only permitted for the customer or a client of the customer who has been notified to Hamilton in accordance with Clause 5(2)(a)(iv) in accordance with the Conditions. The customer is reminded of the provisions of Clause 5(2)(ii) which states that any Supplied Mailing List supplied for once only use must be used within 6 months of the date of supply.
(3) As it is impractical for Hamilton to have control addresses in every part of the UK both parties explicitly agree that the delivery of material at a single control address shall be taken as proof of the use of all the lists that Hamilton previously supplied unless the customer can prove otherwise. The customer is referred to clauses 5(2).a.iii and 5.(2).a.vi concerning the storage of the disk, and where there is evidence that the customer has breached either of these clauses (eg through the mailing of at least one control address) but not used the whole list the customer will pay a fee of up to 50% of the current rate for the whole list.
10. VERIFICATION OF WORK
(1) If Hamilton is responsible for packaging and mailing any items and the customer wishes to verify that Hamilton carries out such work as required then he may visit Hamilton's warehouse on the appropriate day when the work is being carried out and select packages at random that relate to the Services to verify the contents of the packages.
(2) Where a customer chooses not to attend at the warehouse in accordance with clause 10(1), the customer hereby accepts the word of the directors of Hamilton that a particular mailing has been carried out in accordance with the Contract.
(3) If the customer requires copies of Post Office documentation to verify despatch information then he must request these at the time of the order otherwise the customer acknowledges that, save in the event of manifest error, the quantity of mail posted will be as stated in Hamilton's final invoice.
11. SHARED MAILINGS
Shared mailings are subject to the terms and conditions laid down within this document, and additionally:
(1) While Hamilton will do everything reasonable to ensure despatch of a shared mailing on a date advertised this date of despatch is not guaranteed. Hamilton does not recommend shared mailings for mailing time sensitive items. Where none of a shared mailing can be despatched within one week of the advertised date Hamilton House will despatch the mailing via second class post, rather than mailsort 3.
(2) Shared mailings will normally be despatched in stages to allow for regional and other variations in packs to be processed.
(3) Because shared mailing packs carry materials from a variety of customers the postal dockets relating to the mailing will not indicate which items are in each pack. Because the mailings are normally split into regional selections it is extremely time consuming to retrieve the individual posting dockets after the mailing, and thus where the customer requires the dockets for a mailing these must be requested in advance of the mailing.
(4) Hamilton strongly recommends that all leaflets included in a shared mailing should have the generic title of the teacher to be reached shown in large text on the top right of the leaflet. A list of the leaflets and the person for whom each is intended is generated from the title of the leaflet and the generic title of the intended recipient printed on the leaflets. Where no generic title appears or where the leaflets arrive at Hamilton later than 9.30am nine days prior to the mailing date, and where by this time the customer has not provided the information in writing as to whom the leaflets should reach at the time of booking, Hamilton at its absolute discretion will either omit the leaflet from the cover page list, or will print a generic title that in its experience it feels is correct for the leaflet.
12. COPYRIGHT
(1) Any copyright and other intellectual property rights in any Mailing List or Supplied Mailing List will belong either to Hamilton or the particular third party concerned who may own a particular Mailing List or Supplied Mailing List and no intellectual property rights in any Mailing List or Supplied Mailing List shall pass to the customer under the Contract.
(2) Any copyright and other intellectual property rights in any design or other artwork generated by Hamilton in connection with the Services will belong to Hamilton until the customer has paid in full all sums that may be due to Hamilton in respect of the Services. Hamilton hereby grants to the customer a non exclusive licence to use such design or artwork until the due date for payment of all sums due in respect of the Services and after such date Hamilton may revoke the licence hereby granted by notice.
13. THIRD PARTY INTELLECTUAL PROPERTY RIGHTS
Hamilton and the customer each undertake and agree to indemnify the other for any expense, damage or loss suffered as a result of any claims or proceedings against the other, regarding infringement or alleged infringement of any intellectual property rights owned by a third party, resulting from the use of any data or design or artwork or other materials or items supplied by that party, including Input Material, in connection with the Services.
14. TERMINATION
Without prejudice to any other rights or remedies Hamilton may have, Hamilton may terminate the Contract and any other contract between the customer and Hamilton immediately by notice in writing if the customer breaches any provision of the Contract which cannot be remedied to the satisfaction of Hamilton within 7 days of Hamilton serving notice of the breach and the remedy required or if the customer goes into liquidation, or, in the case of an individual or a firm, becomes bankrupt, makes a voluntary arrangement with his creditors or has a receiver or administrator appointed.
Upon termination of the Contract Hamilton shall be entitled to invoice the customer for any costs incurred in connection with any contract terminated and the amount invoiced shall be immediately due and owing. In addition, Hamilton shall return all Input Material in accordance with the terms of Clause 6(5).
15. NOTICES
Any notice required to be given under these terms and conditions must be in writing and be served on the recipient by personal delivery, first class post or fax at the address shown in the Confirmation of Order, or any other address notified by the recipient from time to time.
A notice received personally shall be deemed to have been served at the time of delivery.
A notice sent by first class post shall be deemed to have been served two working days after the day of posting.
A notice served by fax shall be deemed to have been served at the time of transmission provided the sender is able to produce evidence of its having duly transmitted and received.
A notice served by email shall be deemed to have been served at the time of transmission.
16. WAIVER
The waiver or forbearance of failure of either party in insisting in any one or more instances on the performance of any provisions of a Contract shall not be construed as a waiver or relinquishment of that party's rights in respect of any continued default of any future non-performance of that or any other provision.
17. ARBITRATION
Hamilton reserves the right to take matters relating to non-payment of invoices, unauthorised use of mailing lists and similar cases to the County Court. Any dispute arising under or in connection with the Conditions or the provision of the Services or Goods which Hamilton deems to be more appropriate to be dealt with by other means shall be referred to arbitration by a single arbitrator appointed by agreement or, in default, nominated on the application of either party by the President for the time being of the Law Society for England and Wales.
18. INDEMNITY
To the extent not provided for elsewhere in the Contract the customer shall indemnify Hamilton for any loss, costs, claims, damages and expenses, incurred indirectly or directly by Hamilton in connection with any breach of the Contract by the customer.
19. INVALIDITY
If any term of the Contract shall be held to be illegal or unenforceable, in whole or in part, under any enactment or rule of law, such term or provision shall to that extent be deemed not to form part of the Contract but the enforceability of the remainder of the Contract shall not be affected.
20. PROPER LAW
The Conditions and any Contract to which they apply shall be interpreted and construed under English law and the parties hereby agree to submit to the non-exclusive jurisdiction of the Supreme Court of Justice in England.