Terms and Conditions
Terms and Conditions of Business, Send DM Limited.
|“The Mailing House”:||Send DM Limited.|
|“The Client”:||any business with whom the Mailing House is trading.|
These terms and conditions shall apply to any contract between the Mailing House and the Client for the supply of goods (including any instalment or part of them) and services (including any part of them) which the Mailing House is to supply or deliver.
These terms and conditions supersede any of the Mailing House’s previous terms and conditions and any practice or course of dealing previously applying between the Mailing House and the Client.
A quotation is based on information available to the Mailing House at the date of the quotation and is subject to sight of materials, their suitability and any artwork to be supplied to the Mailing House by the Client. A quotation shall not constitute an offer. Quotations are valid for a period of 30 calendar days and are for the whole of the goods or services to which the quotation relates. The Mailing House may extend the period for consideration of its quotation at its discretion and may refuse to accept any order for goods and services, which constitute only a part of the quotation unless the initial specification requested separate quotations for separate elements of the order. An order constitutes an offer by the Client to purchase the goods and services in accordance with these terms and conditions. All orders must be in writing and the Client must ensure the terms of the order are complete and accurate. No contract shall exist between the Mailing House and the Client where the Mailing House rejects the order.
Where quotations may go back and forth between a Client and its Mailing House, the quotation or order form acknowledgement that is accepted by both of them will form the contract, and the Terms and Conditions as laid out within this document are deemed to be agreed and accepted by the Client.
3. Order, supply and delivery of materials
3.1. The Client shall be responsible for ensuring that the materials supplied by it or on its behalf to the Mailing House:
- conform to specifications in the quotation and Royal Mail’s, or any other carrier’s as appropriate, requirements;
- are supplied punctually;
- are accompanied by a delivery advice note stating the quantity and description of the materials supplied;
- are delivered on pallets, boxed, packed, clearly labelled and supplied in such a way as to withstand normal storage and handling;
- are sufficient to enable the Mailing House to deliver the correct quantity of any printing or reproductive work ordered allowing for normal wastage and spoilage.
3.2. The Mailing House shall use its reasonable endeavours to provide the Client with a reasonable estimate of the quantity of printing or reproductive work required.
3.3. Checking materials
The Mailing House shall count the number of pallets or parcels containing materials supplied by or on behalf of the Client against any delivery note and shall immediately report any discrepancy to the Client. The Mailing House shall not however be responsible for any loss arising from any errors or omissions in the goods supplied.
3.4. Checking of proofs
The Client’s approval of drafts, proofs, copy, layouts or artwork and costs of production will be the Mailing House’s authority to produce the mailings and any other materials and to despatch them. The Mailing House shall not be liable for any errors or omissions in such mailings and materials to the extent that they have been so approved.
3.5. Supply of goods by the Mailing House
The Mailing House will use reasonable endeavours to ensure any goods to be produced by the Mailing House shall be as described in the specification agreed by the Mailing House in writing in all material respects. The Mailing House reserves the right to amend the specification of the goods if required by any applicable statutory or regulatory requirement.
3.6. Insurance of materials
All materials supplied by or on behalf of the Client are at the Client’s risk whilst on the Mailing House’s premises or in transit to such premises and the Client is responsible for arranging adequate insurance cover for those materials unless arrangements in writing have been made to the contrary.
3.7. Storage of materials
Any of the Client’s materials or any goods which remain in the Mailing House’s possession after 30 calendar days from the completion of any order will be subject to storage charges. The Mailing House reserves the right to destroy or dispose of all such materials not less than 6 weeks after completion of each mailing unless written notice to the contrary is given by the Client.
3.8. Physical delivery of materials
The cost of collection and delivery of the Client’s materials or any goods is not included within the quotation and where this is carried out by the Mailing House for the Client it will be charged for as an extra.
4. Delivery of Orders
The specified time for delivery, which shall not be of the essence, shall be subject to receipt by the Mailing House of all information and materials to enable it to proceed with the contract and to comply with any applicable governmental or other consent. Postage is an un-tracked, non-guaranteed service. The Mailing House accepts no responsibility for delays caused by third party postal carriers.
The Mailing House may deliver the goods by separate instalments. Each separate instalment may be invoiced separately and, if so, shall be paid for in accordance with the contract. Where the goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by The Mailing House to deliver any one or more of the instalments in accordance with these terms and conditions, or any claim by the Client in respect of any one or more instalment, shall not entitle the Client to treat the contract as a whole as repudiated.
5. Force Majeure
The Mailing House shall be under no liability if it shall be unable to carry out any of the provisions of the contract for any reason beyond its control (a ‘Force Majeure Event’) including (without limiting the foregoing) Act of God; legislation; war; fire; flood; drought; failure of power supply; lock out; strikes or other action in contemplation of the furtherance of a dispute (but not strikes or other action in contemplation of the furtherance of a dispute taken by the Mailing House’s employees).
If the Force Majeure Event continues for a period of 7 calendar days then the Client may by written notice to the Mailing House terminate the contract upon 7 calendar days notice and pay for work done and materials used, but subject to this shall otherwise accept delivery when available.
6. Data Protection
6.1. The processing of personal data
For the purposes of processing of personal data, the parties agree to the following definitions as incorporated within GDPR legislation;
|“Controller”||A controller determines the purposes and means of processing personal data. The controller (or “Client”) will be you, our client.|
|“Processor”||A processor is responsible for processing personal data on behalf of a controller. The processor (or “Mailing House”) will be us, Send DM Limited.|
GDPR applies to both controllers and processors.
As controller, you have a legal obligation to ensure that your processor is GDPR compliant. Acceptance of our T&Cs provides you with assurance of our commitment to operate within the GDPR legal framework and principles.
The Mailing House warrants to the Client that it has in place appropriate technical and organisational measures against accidental or unlawful destruction or loss of alteration to, unauthorised disclosure of or unauthorised access to any personal data.
The Mailing House shall ensure that each of its employees, agents and subcontractors are made aware of its obligations with regard to the security and protection of personal data.
We will undertake work on your behalf on acceptance by you of this document, being our Terms and Conditions of Business.
We shall assume, unless otherwise communicated to us, that your acceptance of a quote or order acknowledgement from us, or your explicit instructions to proceed, act as your acceptance to our Terms and Conditions of business as set out in this document.
Specifically, insofar as the data you provide to us;
- We shall only use your data for the specific means established with you, as set out within the quotation, order acknowledgement or clear email trail supporting the quote, order of instructions to proceed.
- These permissions will likely include;
- a description of the data processing that we will undertake, which may include, but is not limited to, cleansing, categorising, sorting and analysing the data, and the purpose for which the personal data will be processed by us, being, unless otherwise stated, one, some or all of direct mail marketing, print personalisation, fulfilment and postage.
- the duration for which we will process your customers’ personal data which, unless otherwise stated, shall be the period starting on the date on which we receive personal data from you (or, if in tranches, receipt of the first tranche from you) and will continue until we have processed the data and posted it to your customers (or, if posted in tranches, the date of the last tranche to be posted).
- We shall delete the personal data we have received from you within a period not more than 45 days from the date on which the final tranche is posted by us.
- If we have agreed with you to manage postal returns, we shall delete the personal data from you within a period of not more than 90 days from the date on which the last tranche is posted by us.
- the types of personal data that will be processed by us including, but not limited to, title, and name and address including postcode. Should the data include data fields defined as ‘special category’ data, we shall expressly agree with you the transfer, processing, storage and deletion of this data. The following categories of data are deemed to be ‘Special category’;
- Racial or ethnic origin
- Political opinions
- Religious or philosophical beliefs
- Trade-union membership
- Data concerning health or sex life or sexual orientation
- Genetic data
- Biometric data where processed to uniquely identify a person.
- your rights and obligations under the contract. We will assume, unless otherwise instructed by you, that the personal data to be processed by us relates to prospective, current or lapsed customers of your company and is being legitimately used by you because its use satisfies one or more of the following six criteria;
- You have the explicit consent of the data subject
- Processing is necessary for the performance of a contract with the data subject, or to take steps to enter into a contract
- Processing is necessary for compliance with a legal obligation
- Processing is necessary to protect the vital interests of a data subject or another person
- Processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller
- Necessary for the purposes of legitimate interests pursued by the controller or a third party, except where such interests are overridden by the interests, rights or freedoms of the data subject.
- These permissions will likely include;
- We will implement appropriate security measures to manage, store and process your data. These measures will take account of the following factors:
- the nature, extent, context and purposes of the data processing
- the available technology
- the costs of implementation of the security measures
- the risk of accidental, unlawful or unauthorised destruction, loss, alteration, disclosure of, or access to the client personal data, as well as the impact this would have on the individuals concerned.
These security measures will likely include encryption, resilience of processing systems and backing up personal data in order to be able to reinstate the system.
- The security measures over specific client data that we shall adopt will be appropriate to the risks of using and storing the personal data. Different types of personal data will have different levels of risk depending upon its volume and sensitivity. We shall be cognisant of the type of data and its sensitivity and adapt our security measures accordingly to provide an appropriate level of risk mitigation.
- We shall adopt appropriate security measures to protect the data on its transfer from you, the Controller, to us, the Processor. Where this transfer is by electronic means, we would expect the line through which the transfer is happening to be secured through a mechanism such as SFTP (Secure File Transfer Protocol).
- We will complete and retain documentary records of the processing activity that we undertake on your behalf.
- In the circumstance that we plan to use a third party supplier and to share your data with them, we will;
- ensure we have your express contractual agreement in advance, and
- have a written and legally-compliant contract in place with the third party.
- Should we experience a data breach we recognise our obligation to inform you without “undue delay”. We recognise also our legal requirement to assist you in ensuring compliance with your obligations in relation to the requirement for data breach notification to the Information Commissioner’s Office (ICO) to take place without undue delay and, where feasible, not later than 72 hours after having become aware of it.
- We recognise our responsibility to support you to comply with your legal obligations to respond to requests from individuals whose personal data we are processing. Such requests are not restricted to but may include;
- to exercise their rights of access to their personal data
- rectification or erasure of their personal data
- restriction of the processing of their personal data
- their right to object to their personal data being processed for certain purposes
- their right to “data portability”, and
- their right not to be subject to certain types of “automated decisions”.
- We also recognise that we shall delete any and all copies of your personal data (after the end of the provision of the data processing services) unless we are legally required to continue storing the data.
6.2. Auditing of security measures
We shall, when reasonably requested to do so by you, the Client, submit our data processing facilities, data files and relevant documentation to audit, subject to our security and confidentiality procedures, and shall comply with all reasonable requests from you to enable it to comply with any and all of its obligations under GDPR and the Data Protection Act 1998.
We recognise our responsibility to make available to you all information necessary to demonstrate that we have complied with our data protection obligations, and to contribute to audits of our data processing operations conducted by you or a party mandated by you.
7. Intellectual Property
The intellectual property rights in any work created by or for the Mailing House in relation to this contract shall vest in the Mailing House unless it is agreed in writing that such intellectual property rights shall pass to the Client.
8. Charges and Payment
8.1. Payment of invoices
The price payable by the Client for the goods and/or services shall be calculated in accordance with the amounts set out in any quotation and as set out in these terms and conditions. All prices quoted are strictly net and are exclusive of VAT which is payable in addition by the Client.
The Client shall also be charged for any preliminary work produced by the Mailing House at the Client’s request whether experimentally or otherwise and any corrections made after the first proof and any other changes requested by the Client on or after the first proof.
Except as set out in clause 8.2 below, invoices will be paid on completion of the contract and in any event at not less than monthly intervals within 30 days of the invoice date unless otherwise agreed and the Client shall make any payment due to the Mailing House without any set-off, counterclaim, deduction or withholding (unless required by law).
8.2. Payment for postage
Where the mailing is to be undertaken through the Mailing House’s own postal account, the cost of postage shall be paid, and cleared, no later than 48 hours before the mailing begins. If the cost of postage is not paid within the specified time limit the Mailing House shall have the right to withhold the mailing and shall not be liable in respect of any delay to the mailing.
8.3. Postal charge refunds
Where the cost of postage is less than the amount paid by Direct Bank transfer the Mailing House shall provide a credit for the Client for the next mailing it puts through the Mailing House’s account.
8.4. Interest on overdue bills
The Mailing House reserves the right to charge interest at the rate of 6% above the base rate of Barclays Bank or part thereof on any overdue sums from the date on which payment was due to the date on which payment is received.
9. Codes of Practice and Indemnities
The Client shall:
- provide the Mailing House with a true copy of all advertising material or other material intended to be enclosed with any material prepared by the Mailing House;
- ensure that all information or materials provided by it complies with all applicable statutory requirements and with the codes of practice of the appropriate supervisory bodies including, but not limited to, the British Codes of Advertising, Sales Promotion and Direct Marketing (Cap code); and the Direct Marketing Association’s Code of Practice and all applicable data protection legislation;
- ensure that any consumer mailing addresses provided to the Mailing House are up to date, current and, where applicable, cleaned against the Mailing Preference Service (MPS) files and cleaned against other suppression lists such as ‘deceased’ and ‘gone away’, unless it is agreed that any or all of these activities will be carried out by the Mailing House;
- comply with its obligations as a data controller within the legal framework and principles of GDPR.
The Client shall indemnify the Mailing House against all costs, claims, liabilities, penalties and expenses (including any direct, indirect or consequential losses, legal and other professional costs and expenses) which the Mailing House may incur by reason of any goods or any materials supplied being or alleged to being illegal, unlawful, infringing any copyright, trademark or other intellectual or other proprietary rights of any third party or is defamatory, obscene or the distribution of which may infringe postal or other regulations or which is in breach of any trade description or other legislation.
10. Provision of Computer Data
The Client shall ensure that any computer or electronic data supplied to the Mailing House is clean, unadulterated, capable of being read and processed and does not contain any computer or electronic viruses or malware. In the event of the computer or electronic data supplied being corrupt, the Mailing House shall either require the Client to supply clean unadulterated data which does not contain any computer viruses or malware or decontaminate the data itself but at the Client’s expense.
The Client shall ensure that all data supplied to the Mailing House are completely unambiguous with regard to their format. A specification of the formats of the data supplied and instructions for interpretation must be provided in writing.
11.1. Limitation of Mailing House’s liability
The Mailing House’s entire liability (including liability for acts and omissions of its employees, agents and sub contractors) in respect of any breach of its contractual obligations and of any representations, statement or tortious act or omission including negligence (“Obligations”) shall be limited to the contract price (excluding postage and telecommunications costs). The Mailing House will not be liable to the extent that any breach of its Obligations has been caused, directly or indirectly, by the Client or by any third party.
11.2. Consequential or indirect loss
The Mailing House shall not be liable for any indirect or consequential loss or damage, loss of profits or goodwill or loss of any kind.
11.3. Liability for death or personal injury
Notwithstanding the sub clauses 11.1 and 11.2 above, the Mailing House’s liability to the Client for death or injury resulting from its own or that of its employees, agents or sub contractors negligence shall be unlimited.
The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
This clause 11 shall survive termination of the contract.
12. Termination and Cancellation
12.1. Subject to clause 12.2 either party shall be entitled to terminate this contract by notice in writing to the other in the event of any material breach by the other party of any of its obligations under this contract. The termination will take effect 14 calendar days after receipt of written notice unless the defaulting party has remedied the default within this time.
The Mailing House shall be entitled to terminate this contract by notice in writing in the event of the Client’s failure to pay in accordance with the terms of the contract or in the event of the Client committing an act of bankruptcy or taking any steps leading to liquidation, making any agreement with its creditors or having a receiver or administrative receiver appointed over any of its assets.
In the event of termination by the Mailing House under this clause, the Client shall immediately become liable for any outstanding sums due from it to the Mailing House.
12.2. If either the Mailing House or the Client wishes to cancel the contract (other than for a breach of the contract by the other and the instances arising under clause 12.1) then:
- where the Client cancels the contract it will pay to the Mailing House a reasonable sum for any work carried out by the Mailing House prior to such cancellation together with a reasonable profit on the uncompleted portion of the contract;
- where the Mailing House cancels the contract it will pay to the Client all reasonable costs incurred by the Client relating to that contract.
Termination of the contract by cancellation in 12.2 (a) & (b) above will take effect immediately upon receipt of written notice from the cancelling party to the other party.
13. Agency, partnership and joint adventure
Nothing in this contract shall be construed as to constitute either the Mailing House or the Client to be the agent of the other and it shall not operate so as to create a partnership or joint venture of any kind between them.
No failure or delay by either the Mailing House or the Client in exercising any of their rights under this contract shall be deemed to be a waiver of those rights. No waiver by either of them of any breach of the contract by the other, shall be considered as a waiver of any subsequent breach of the same or any other provision.
Notwithstanding that any provisions of this contract may prove to be illegal or unenforceable the remaining provisions shall continue in full force and effect.
16. Third Party Rights
A person who is not a party to this contract shall not have any rights to enforce its terms.
17. Entire Agreement
The contract between the Mailing House and the Client for the supply of goods and/or services as set out in the Client’s order and any agreed specification in accordance with these terms and conditions constitute the entire contract between the Mailing House and the Client with respect to the matters dealt with herein. The Client acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Mailing House which is not set out in the order. No variation to this contract shall be valid or effective unless made in writing and signed by parties.
This contract is subject to English law and the Mailing House and the Client agree to submit to the jurisdiction of the English courts in respect of any dispute or difference arising under it.