Terms

1. Introduction

1.1 These terms and conditions shall apply to any contract between Bay Mailing Limited or Bay Mailing Services Limited (the “Mailing House”) and the Client (which shall mean the person, firm or company placing any order which is accepted by the Mailing House) 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.

1.2 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 Mailing House and the Client.

1.3 These Terms and Conditions include the Mailing House’s Standard Service Level Agreement, a copy of which is available on request.

2. Estimates

2.1 An estimate is based on information available to the Mailing House at the date of the estimate and is subject to sight of materials, their suitability and any artwork to be supplied to the Mailing House by the Client.

2.2 Estimates are valid for a period of 30 days and are for the whole of the goods or services to which the estimate relates.  The Mailing House may extend the period for consideration of its estimate at its discretion and may refuse to accept any order for goods and services, which constitute only a part of the estimate unless the initial specification requested separate estimates for separate elements of the order.

2.3 All orders must be in writing. No contract shall exist between the Mailing House and the Client where the Mailing House rejects the order.

3. Order, supply and delivery of materials

3.1. Supply of Materials

3.1.1. The Client shall be responsible for ensuring that the materials supplied by it, or on its behalf: -

a) conform to specifications in the quotation and Royal Mail requirements;

b) are supplied punctually;

c) are accompanied by a delivery advice note stating the quantity and description of the materials supplied;

d) are delivered on pallets, boxed, packed and supplied in such a way as to withstand normal storage and handling;

e) 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.

3.1.2. 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.

3.2. Checking Materials

3.2.1 The Mailing House shall count the number of pallets containing materials supplied by or on behalf of the Client against any delivery note and shall immediately report and 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.

3.2.2 The Mailing House shall not be required the check the contents of pallets supplied by or on behalf of the Client.

3.3. 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 have been made to the contrary, and confirmed in writing by the Mailing House.

3.4. Storage of Materials

Any of the Client’s materials which remain in the Mailing House’s possession after 14 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 at the Client’s costs not less than 14 days after written notice to that effect is given to the Client.

3.5. Physical delivery of Materials

The cost of collection and delivery of the Client’s goods or materials 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 Goods

The specified time for delivery, which shall 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.

5.  Force Majeure

5.1 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 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 employees).

5.2 During the continuance of a situation of ‘Force Majeure’ the Client may give written notice to the Mailing House to terminate the contract 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

6.1.1 The Mailing House represents, warrants and undertakes to the Client that it shall process any personal data (as defined in the Data Protection Act 1998) solely for the purpose of this contract and for no other purpose.

6.1.2 The Mailing House represents, warrants and undertakes 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.

6.1.3 The Mailing House shall ensure that each of its employees, agents and subcontractors are made aware of their obligations with regard to the security and protection of personal data and shall require that they enter into binding obligations reflecting the provisions of this clause.

6.2. Auditing of security measures

6.2.1 The Mailing House shall, when requested to do so by the Client, submit its data processing facilities, data files and relevant documentation to auditing by the Client and shall comply with all reasonable requests from the Client to enable it to comply with any and all of its’ obligations under the Act.

6.2.2 Upon the completion or termination of the contract the Client shall provide instructions for the return or destruction of personal data.

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

8.1.1 Invoices will be issues on completion of the contract, or in any event at not less than monthly intervals, and shall be paid within 30 days of the invoice date unless otherwise agreed.

8.1.2 All prices quoted are strictly net and are exclusive of VAT which should be payable by the Client.

8.1.3 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.

8.2 Payment for Postage

8.2.1 Where a mailing is to be undertaken through the Mailing House’s postal account, the cost or estimate of the postage shall be cleared in the Mailing House’s bank account at least 48 hours before the mailing begins.

8.2.2 Where the Client pays by cheque, it must be received by the Mailing House not later than five business days before the mailing begins.

8.2.3 Where the Client uses electronic transfer, it must be cleared in the Mailing House’s bank account at least 48 hours before the mailing begins.

8.2.4 If the cost or estimate of postage is not paid within the specified time limit then the Mailing House shall have the right to withhold the mailing until the postage costs are cleared in the Mailing House’s bank account.

8.2.5 If the postage costs are not received according to the above, and the Mailing House continues with the mailing on the assurances of the Client, then Bay reserves the right to apply a penalty of the greater £12.50 or of 1% of the outstanding cost or estimate of postage each day or part thereof for every day or part thereof that the costs or estimate for postage is late in being cleared in the Mailing House’s bank account.

8.2.6 A management charge will apply for the use of the Mailing House’s postal account. This charge will be the higher of 1% of the postage cost or £5 per mailing.

8.3 Postal charge refunds

Where the cost of postage is less than the amount paid by telegraphic transfer the Mailing House shall either refund any sums remaining to the Client or 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 2% per month or part thereof on any overdue sums from the date on which payment was due (which shall mean 30 days after the date of any invoice) to the date on which payment is received.

8.5 Invoice Issues

Any issues with an invoice or job must be notified to Bay by the customer in writing within 14 days of the date of invoice for them to be taken into consideration; otherwise the customer will be liable for the full amount of the invoice irrespective of any issues.

9. Codes of practice and indemnities

9.1 The Client shall:

a) 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.

b) 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 and Sale Promotion (BCASP); and the Direct Marketing Association’s Code of Practice.

9.2 The Client shall indemnify the Mailing House against all costs, claims, liabilities, penalties and expenses which the Mailing House may incur by reason of it’s work 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.

9.3 The Mailing House shall have the right upon request from the body administering the Quality Standard in Mail Production (QMP) or any successor accreditation scheme, to supply that body with samples of any mailings relating to the contract.

9.4 The Mailing House reserves the right not to undertake or continue work at any stage during a project or provision of service where that work involves or becomes involved with  materials, practices or anything else that the Mailing House determines at its sole discretion to be offensive or against the Mailing House’s business, moral or other ethics. In the event that any information regarding the work that would be covered by this clause is not made available to the Mailing House at the outset, then the Mailing House reserves the right to charge for services provided to the point of that information being made available to the Mailing House and for any expenses incurred by the Mailing House.

10.  Provision of computer data

10.1 The Client shall ensure that any computer data supplied to the Mailing House is clean, unadulterated, capable of being read and processed and does not contain any computer viruses. In the event of the computer 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 decontaminate the data itself but at the Client’s expense.

10.2 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. Liability

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 shall be limited to the contract price (excluding postage and telecommunications costs).

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, other than the direct loss suffered by the Client and subject to limitation under sub clause 11.1

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.

12.  Termination and Cancellation

12.1 Termination in the event of breach of contract by either party or upon the bankruptcy liquidation etc of the Client

12.1.1 Subject to clauses 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 days after receipt of written notice unless the defaulting party has remedied the default within this time.

12.1.2 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 and agreement with its creditors or having a receiver or administrative receiver appointed over any of its assets.

12.1.3 In the event of termination by the Mailing House under this clause, the Client shall immediately pay any outstanding sums due from it to the Mailing House.

12.2 Termination in other circumstances.

12.2.1 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:

a) where the Client cancels the contract it will pay to the Mailing House a reasonable sum for any work carried out by it prior to such cancellation together with a reasonable profit on the uncompleted portion of the contract.

b) where the Mailing House cancels the contract it will pay to the Client all costs incurred by the Client relating to that contract.

12.2.2 Termination of the contract by cancellation in 12.2(a) and (b) above will take effect immediately upon receipt of written notice from the cancelling party to the other party.

13. Agency, partnership and joint ventures

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.

14. Enforceability

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.

15. Severability

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. Entire agreement

These terms and conditions constitute the entire contract between the Mailing House and the Client with respect to the matters dealt with herein. No variation to this contract shall be valid or effective unless made in writing and signed by both the Mailing House and the Client.

17. Jurisdiction

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.

END.