The Original Data Company Limited
STANDARD TERMS & CONDITIONS OF CONTRACT FOR LIST RENTAL AND TRADING
1. APPLICATIONS OF CONDITIONS
a) In these Conditions
* the "Broker" means the person or organisation acting as officially appointed agent representing advertisers using mailing lists or insert programs (Buyers).
* the "Buyer" means the individual firm, company or other party with whom the Broker contracts.
* the "Contract" means the agreement made between the Broker and the Buyer for the sale or use of the Materials as set out in Clause 6 (g)
* the “List Owner” means the individual firm, company, Broker or other party who has any interest in the list forming the whole or part of the subject matter of the Contract
* the "Materials'" shall mean the lists, product dispatches, third party inserts or any of them compromised in the Contract between the Broker and the Buyer
* the "Terms and Conditions" means these terms and conditions
* the "User" means the Buyer or his Broker
b) The Terms and Conditions are applicable to the Buyer, and are also binding on any agents, sub-agents, contractors, sub-contractors, licensees, any type of third parties whom the Buyer chooses to employ, directly or otherwise (provided such instructions are done as at 1 (f) below), and that the Buyer warrants that any such persons or firms thus engaged will comply fully with these obligations attributed to the Buyer in these Terms and Conditions.
Furthermore, the Buyer will indemnify the Broker for damages, with all costs suffered as a result of any breach of the Terms and Conditions by such persons or firms who have undertaken work on the Buyer’s behalf.
c) The Contract shall be subject to the Terms and Conditions; any representation or warranty made by or on behalf of the Broker prior to the Contract whether orally or in writing is hereby expressly excluded and shall be of no effect.
d) Unless otherwise agreed in writing signed by the Broker, the Terms and Conditions shall override any Terms and Conditions stipulated, incorporated, referred to by the Buyer in his order or any other document or during pre-contract negotiations.
e) The Broker reserves the right to insist that the Buyer notifies him in writing of the full name and address of the Buyer and all its branches and where the Buyer is a limited company its registered office and the names of all persons who have authority to bind the Buyer. If the information is not provided within seven days of request, the Broker may terminate the Contract and the rights and liabilities of the parties shall be the same as if the Contract had been cancelled in accordance with the provisions of paragraph 5(a).
f) The Contract shall be personal to the Buyer who shall not be entitled to assign subcontract or sub-let the benefit or the burden of the Contract without the prior written consent of the Broker.
g) The Broker will not be prejudiced by any forbearance granted to the Buyer, nor by any waiver by the Broker of any future breach.
2. PRICE
a) Unless the Broker agrees in writing the price for the Materials shall be as follows:
i) the rental charge for the use of a List once only on the date agreed for the purpose agreed between the parties.
ii) the cost of the Materials on which the List is supplied.
iii) the fee schedule for product dispatches or third party inserts
The price appears in the Broker's List rental rates and fee schedule from time to time but the Broker reserves the right to increase the List rental rates and fee schedule at any time.
b) Additional charges shall be payable for:
i) limited or additional selection from the List
ii) preliminary work undertaken by the Broker at the Buyer's request whether experimentally or otherwise..
iii) in accordance with Terms and Conditions 4 & 5.
iv) more than one use of the List if such further use shall be agreed in accordance with clauses 7(a) and 7(c) herein.
c) V.A.T. is payable (whether or not mentioned in any quotation or invoice) in addition to the price and any additional charges.
d) Commission from new business introduced by buyers &/or agents will be paid for 12 months only.
e) All orders must be prepaid nett and in cash unless, at the Broker’s discretion, a monthly account has been set up. Where the execution of a job extends over a period exceeding one month the Broker will, if the Broker considers it appropriate, invoice all work carried out by the Broker monthly or at such other times as may be agreed with the Buyer and all such charges will be payable forthwith nett and cash.
Final payment is due within thirty days of delivery of the Broker's invoice.
f)Notwithstanding the above the Broker shall, at the request of the Buyer and in the Broker's absolute discretion open an account facility for the Buyer for payments to be remitted to the Broker on a calendar monthly basis. See also Term and Condition 10.
g) The Broker will take all normal steps to obtain payment including instigating legal proceedings in the name of the List Owner where the Broker is unable to obtain payment from the User. Such legal proceedings will not be instigated unless the List Owner provides the Broker with a full indemnity against the costs involved and any loss that the Broker might incur.
h) In the event of the insolvency/liquidation of the User, the Broker will only be liable for the List Owner's reasonable costs of address production, delivery and handling charges. In the event that any recovery is made following the insolvency/liquidation, such sums shall be applied to reimburse sums paid by the Broker to the Owner and any surplus will be remitted to the List Owner after deduction of the Broker’s commission, which shall be at the agreed percentage on the full sum recovered.
3. ACCEPTANCE OF ORDERS
a) The Broker shall be under no obligation whatsoever to contract with the Buyer and shall not be required to give any reason for refusal to contract.
b) The Buyer shall provide two examples of each item intended to be mailed for submission to the Broker and acceptance of a Buyer's order shall not be deemed to have taken place unless and until the Broker shall, in his absolute discretion, have confirmed such order is acceptable. See also Term and Condition 10
c) Where the Materials supplied (Lists or Data) have been sold for email broadcast or postal mailing they must be broadcast/posted within 21 days of supply. If this time frame is exceeded the Buyer must inform the Broker who will provide a replacement updated list which will have all unsubscribes/removal-requests received since the original supply. Any reduction in records will be refunded on a pro-rata basis.
d) The Buyer must pass any Subject Access Requests to the “The Original Data Company Ltd” within 24 hours of receipt. These will then be dealt with solely by “The Original Data Company Ltd”.
4. DELIVERY AND TIME
a) The Broker shall notify the Buyer when the Materials are available for collection by the Buyer. Alternatively, the Buyer may request the Broker to deliver the Materials to him or to his nominated clients, in which case the Broker shall be entitled to charge the Buyer for the costs and expenses of such delivery. Delivery shall be deemed to have taken place when the Materials are handed into the custody of the person collecting the Materials on behalf of the Buyer, when posted or delivered into the custody of any carrier or messenger, whether appointed by the Buyer or the Broker.
b) Whilst the Broker shall make every effort to complete the Contract within the time quoted, time shall not be of the essence of the Contract unless specifically agreed by the Broker in writing.
c) In the event of the Buyer requesting expedited completion of the Contract the Broker shall use his best endeavors to complete the Contract in accordance with the Buyer's request but shall be entitled to charge the Buyer for any overtime or other additions necessitated by or in connection with the request.
d) Delivery of data will be via either SFTP server with unique usernames and passwords or encrypted media sent using signed for courier services.
5. CANCELLATION
a) The Broker shall be entitled to cancel the Contract and any future contract;
i) in the event of the Buyer failing to make payment to the Broker within the term specified in Term and Condition 2(d)
ii) in the event of the Buyer failing to give instructions for delivery or collection of the materials.
iii) in the event of a receiver being appointed over the whole or any part of the assets of the undertaking of the Buyer or a winding up order is made against the Buyer or the Buyer goes into liquidation or makes any arrangement with his creditors or commits any act of bankruptcy.
iv) in accordance with Term and Condition 11.
v) if the Buyer shall, in the Broker's opinion, have breached the provisions of Term and Condition 7 & 8.
In any such case, the Broker shall be entitled to charge the Buyer any costs, charges or expenses (both direct and consequential) incurred by the Broker by reason of such cancellation and such expenses will be reimbursed by the Buyer forthwith.
b) Cancellation of the Contract by the Buyer will only be accepted at the sole discretion of the Broker and unless otherwise agreed in writing, only upon condition that any costs, charges or expenses (both direct or consequential) incurred by the Broker by reason of such cancellation will be reimbursed by the Buyer forthwith. Acceptance by the Broker of any cancellation by the Buyer will only be binding upon the Broker if it is made in writing.
6. BROKERS RIGHTS AND OBLIGATIONS
a) Quotations of the number of names and addresses included in a list or product dispatch program are approximate only.
b) A small percentage of dummy names, addresses and/or email addresses shall be included in all lists to enable the Broker to monitor usage.
c) Lists and dispatch program are not built up from any personal knowledge of any particular trade and the Broker relies upon the description of a list or dispatch program accorded to him by the List Owner. No warranty is therefore given as to the accuracy of any list or program and the accuracy of any list is not a condition of the Contract.
d) Whilst every effort is made by the Broker to supply accurate information on the list or program, the Broker does not guarantee the result of any mailing or accept liability in the event of failure.
e) Liability is not accepted by the Broker for any loss resulting from non-delivery of mail, save that the Buyer shall be entitled to rely upon the List Owner's specific conditions. The Broker shall supply to the Buyer a copy of the List Owner's specific conditions at the Buyer's request.
f) Information concerning postal regulations will be given by the Broker at the request of the Buyer, but on the strict understanding that no responsibility is accepted by the Broker for the accuracy of such information. The Buyer should refer to the Royal Mail guide.
g) Damages for consequential loss or otherwise in respect of any claim by the Buyer arising out of or in connection with the Materials or their supply or any breach of Contract by the Broker shall, in any event, be limited to the price of the Contract. The List Owner and the Buyer acknowledge that the Broker is contracting as agent on behalf of the List Owner who is the principal in any contract and therefore the Broker will not be liable under the rental agreement except as provided by the Terms and Conditions and the List Owner acknowledges that in the event of non-payment or other default by the Buyer the List Owner shall have no right to recover from the Broker any sums due to it from the Buyer.
h) The buyer shall be liable for any re-mailing or telephone calling misuse of a list whilst in his care. The penalty for such misuse will equate to three (3) times the value of the original order or orders if more than one makes up the original supply. Where no order is in existence then the value of this misuse will be calculated to be three (3) times the value of the database the records have been selected from. In addition breach of copyright and other charges can be brought against the buyer the damages for which will be unlimited.
i) The broker reserves the right without prior notification to use part or all of the selection criteria requested by the Buyer and to make further inclusions or exclusions as deemed appropriate in order to fulfill a contract. See also Term and Condition 10.
7. BUYERS RIGHTS AND OBLIGATIONS
a) Unless the Broker and Buyer shall agree otherwise in writing, the Buyer shall be entitled to use the Materials once only on the date agreed between the Broker and the Buyer and for the purpose specified by the Buyer at the time of acceptance of his order and using only Materials approved by the List Owner.
b) The Buyer shall not be entitled to pass on, disclose or otherwise communicate the Materials or any part thereof or information, extracted there from to any addressing bureau, computer bureau or any third party without the written permission of the Broker.
c) The Buyer shall not be entitled to record or retain or cause to be recorded or retained any part of the Materials or data supplied by the Broker for any purpose other than the mailing to which the Contract applies without the written permission of the Broker except that information volunteered by the person or organisation responding to the mailing.
d) The Buyer shall not be entitled to refer to the Materials source or data characteristics in any mailing package or telephone solicitation without the written permission of the Broker.
e) Copyright in lists, envelopes, labels, data contained on magnetic tapes and all other such material supplied by the Broker shall at all times remain with the List Owner or the Broker as such the case may be.
f) Whether or not the Broker and/or List Owner shall have seen copies of the items to be mailed by or on behalf of the Buyer, the Buyer warrants that items contain nothing which infringes copyright or is defamatory, obscene, indecent or otherwise illegal or unlawful, and shall keep the Broker and/or List Owner fully indemnified against losses, costs, charges and expenses of whatsoever nature arising out of or in connection with a claim that such items infringe copyright, are defamatory, indecent or otherwise illegal or unlawful whether or not such claim is upheld or justified.
g) The Buyer shall be liable for loss or misuse of the Materials whilst in his care, or in the care of his agent, mailing house, computer bureau, etc. It will be deemed a misuse of the Materials if the Materials having been supplied for mailing are used for telephone or for any activity other than the purpose for which they were originally provided.
h) The List Owner reserves hereby all his rights under the copyright laws and all other rights in the event of a breach of any clause herein.
i) Subject to and without prejudice to the generality of the foregoing and particularly paragraphs 1(f) 7(a) and (c) the Buyer will ensure that in any dealings he has with any third parties in respect of the subject matter of any agreement between the Broker and Buyer he shall ensure that the Terms and Conditions mutatis mutandis shall govern any such dealings with any such third party and that in any event the Buyer hereby warrants that any such third party will comply fully with the obligations attributed to the Buyer herein and will indemnify and keep indemnified the Broker with regard to all costs, claims, damages and expenses that may arise for any breach thereof.
8. Buyers obligations where “The Original Data Company Ltd” contact details are to be used on a mailing piece/creative:
a) The Buyer must receive written approval of the creative from “The Original Data Company Ltd” before any broadcast is sent.
b) The Original Data Company Ltd do not permit their headers or footers to be used on any data supplied on an outright purchase or on perpetual use.
c) An email footer must be included at the base of the mailing piece/creative as supplied by “The Original Data Company Ltd”. A copy of which can be found HERE.
d) The Buyer must supply “The Original Data Company Ltd” with a full list of all unsubscribe email addresses it has received and all hard bounce email addresses within 7 days of the first and all subsequent email broadcasts.
e) Before each and all email broadcasts are made the Buyer must request a new mailing file from “The Original Data Company Ltd” which has been cleaned against all received unsubscribes.
f) The Buyer must pass any Subject Access Requests to the “The Original Data Company Ltd” within 24 hours of receipt. These will then be dealt with solely by “The Original Data Company Ltd”.
9. LIST EXCHANGES
a) The following provision b) shall apply where the Broker arranges for a List Owner (the first List Owner) to agree with another List Owner (the second List Owner) to rent out his list once to the second List Owner in consideration of the second List Owner agreeing to rent out his list once to the first List Owner in lieu of a rental charge by either List Owner to the other.
b) The Broker shall be entitled to charge to each List Owner a fee to be payable by the relevant List Owner when he takes delivery of the other List Owner's list. The fee shall be 20% of the rental charge for the use of the list by that List Owner unless otherwise previously agreed.
10. GUARANTEES (RIDER)
If at any time the Broker shall give a written guarantee as to price and for the numbers of names and addresses included on a list such guarantee shall be subject to an allowable discrepancy of 15% more or less.
11. FORCE MAJEURE
Notwithstanding the provisions of paragraph 4(b) the Broker shall not be liable for any loss suffered or incurred by the Buyer as a result of the Broker being unable to perform the Contract by reason of any act of God, war, lockout, strike, fire, flood, delay in transit, postal delay, riot or any other unexpected or exceptional cause or circumstance beyond the Broker's control, in which case the Broker shall be entitled to cancel the Contract or delay the performance thereof for as long as reasonably necessary.
12. ENFORCEABILITY
If at any time any one or more of the provisions of the Terms and Conditions becomes invalid, illegal or unenforceable under any law or is held by a Court to be invalid, illegal or unenforceable the validity and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby.
13. JURISDICTION
The Terms and Conditions and each and every contract pursuant thereto shall be governed by and construed in all respects in accordance with the laws of England, and the Broker and Buyer hereby agree to submit to the jurisdiction of the English Court.