Standard Terms and Conditions & List User Warranty - how to apply

These Terms & Conditions are deemed to be incorporated in every contract entered into with McCarthy O'Connor (hereinafter called MOC) for goods supplied. Located at 90a High Street, Berkhamsted, Herts, HP4 2BL.

As of 16/04/2004


1. DEFINITIONS AND INTERPRETATION

1.1 In these Conditions:

“Client” means the individual firm or limited company or other party specified in the Contract that is acquiring the right to use the Goods direct from MOC either for its own use or by a User. “Conditions” means the standard terms and conditions set out in this document and (unless the context otherwise requires) includes the Special Conditions. “Contract” means the contract between the Client and MOC for the right to use the Goods and which is made subject to these Conditions. “Copyright” means all copyright and rights in the nature of copyright to which the Owner now or may subsequently become entitled to in respect of the information. “Force Majeure” means in relation to either party to the Contract any circumstances beyond the reasonable control of that party (including without limitation any strike lockout or other industrial action). “Goods” means any product materials or services supplied by MOC including information and Lists, and personal data as defined in the Data Processing Act 1988. "Information" means any printed or data material supplied as Goods including printed lists computer tapes or any other form of transferring or recording data, including email. “List” means any information, which is made up of names and addresses of individuals and/or businesses, including email addresses which may or may not be accompanied by telephone number or other personal data. “Nett Names Arrangement means the percentage of the total number of names and addresses included in the List or Lists supplied to the Client as specified in the Special Conditions. “Owner” means the individual firm limited company or other party to whom the information belongs. “Processor” means any third party specified in the Contract responsible to the Client or User to assist the Client or User in the use of Goods. “Special Conditions” means the special terms and conditions agreed in writing between MOC and the Client. “User means the individual firm limited company or other party specified in the Contract that is using the Goods other than the Client. “PROJECT” means the specific details of goods to be supplied by MOC.

1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended re-enacted or extended at the relevant time.

1.3 The headings in these Conditions are for convenience only and shall not affect their Interpretation.

2. BASIS OF THE CONTRACT

2.1 These Conditions shall govern the Contract to the exclusion of any other terms and conditions subject to which any quotation is accepted or purported to be accepted or any order is made or purported to be made by the Client.

2.2 No variation to these Conditions shall be binding unless agreed in writing between the duly authorised representatives of MOC and the Client.

2.3 MOC employees or agents are not authorised to make any representations concerning the Goods unless confirmed by a duly authorised representative of MOC in writing. In entering into the Contract the Client acknowledges that it does not rely on and waives any claim for breach of any such representations which are not so confirmed.

2.4 Any typographical clerical or other error or omission in any literature quotation price list Acceptance of offer invoice or other document or information issued by MOC shall be subject to correction without any liability on the part of MOC.

2.5 A failure by either party to the Contract to exercise or enforce any rights conferred upon it by the Contract or these Conditions shall not be deemed to be a waiver of any such rights or operate so as to bar the exercise or enforcement thereof at any subsequent time or times.

3. ORDERS AND SPECIFICATIONS

3.1 No order submitted by the Client shall be deemed to be accepted by MOC unless and until confirmed in writing by a duly authorised representative of MOC.

3.2 The Client shall be responsible to MOC for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Client and for giving MOC any necessary information relating to the Goods within a sufficient time to enable to perform the Contract in accordance with its terms.

3.3 No order which has been accepted by MOC may be cancelled by the Client except with the Agreement in writing of MOC and on terms that the Client shall indemnify MOC and the owner in full against all loss (including loss of profit costs damages charges and expenses incurred by MOC and the Owner as a result of cancellation and in all cases shall be subject to a minimum charge to the Client by MOC of Ł250.00 + VAT.

3.4 When submitting an order or at such other time as required by MOC the Client shall provide samples of all promotional material which is to be delivered to any name and address included in a List for approval by the Owner.

3.5 Statements of the number of names and addresses included in a List are approximate only.

4. PRICE OF GOODS

4.1 The price of the Goods shall be MOC quoted price as stated in the Special Conditions. All prices quoted are valid for 30 days only or until earlier acceptance by the Client after which time they may be altered by MOC without giving notice to the client.

4.2 The Client shall be liable to pay MOC charges for handling and carriage.

4.3 The price is exclusive of any applicable value added tax which the Client shall be additionally liable to pay on the rendering by MOC of an invoice.

5. TERMS OF PAYMENT

5.1 Unless otherwise agreed by MOC the contract price shall be tendered in full at the time of submission of the client’s order. All other charges shall be paid upon receipt of the invoice. At the descretion of MOC special terms may be made available to the Client subject to such conditions as MOC may from time to time specify including, without limitation, the production of satisfactory references and/or the securing of third party guarantees satisfactory to the MOC. Subject to any special terms agreed in writing between MOC and the Client MOC shall be entitled to invoice the Client for the price of the Goods on or at any time after delivery of the Goods unless the Goods are to be collected by the Client or the Client wrongfully fails to take delivery of the Goods in which event MOC shall be entitled to invoice the Client for the price at any time after MOC has notified the Client that the Goods are ready for collection or (as the case may be) MOC has tendered delivery of the Goods.

5.2 The Client shall pay the price of the Goods within 30 days of the date of MOC invoice and MOC shall be entitled to recover the price notwithstanding that delivery may not have taken place.

5.3 The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.

5.4 If the Client fails to make any payment on the due date then without prejudice to any other right or remedy available to MOC, MOC shall be entitled to:

5.4.1 Terminate a contract.

5.4.2 Charge the Client interest (both before and after any judgement) on the amount unpaid at the rate of two per cent per month until payment in full is made (apart of a month for the purpose of calculating interest).

5.4.3 Require the immediate return of the information.

5.4.4 Set off against the price of the Goods any sums owed by MOC to the Client under any contract between MOC and the client.

5.5 If the Nett Names Arrangement is less than 100% the Client shall be entitled to claim a discount in the form of a credit note only provided that:

5.1.1 The Client claims the discount within 3 months of the invoice date (time being of the essence; and

5.5.2 When claiming the discount the Client provides MOC with such evidence satisfactory to MOC that the Client is in fact entitled to a discount.

5.5.3 In any case the maximum discount to which the Client shall be entitled shall be calculated according to the Nett Names Arrangement and if the evidence provided by the Client under clauses 5.5.2 of these Conditions shows a percentage of names and addresses actually used by the Client is more than the Nett Names Arrangement then this percentage figure shall be used to calculate the discount and not the Nett Names Arrangement.

6. DELIVERY

6.1 Any dates quoted for delivery of the Goods are approximate only. Time for delivery shall not be of the essence unless previously agreed by MOC in writing. The Goods may be delivered by MOC in advance of the quoted delivery date upon giving reasonable notice to the Client.

6.2 The Client must inspect the Goods upon delivery and must notify MOC in writing within 7 days of delivery of any damage or shortage to the Goods supplied. If no such notification is given it shall be conclusively presumed that the Goods are complete and in good order and condition and fit for the purpose for which they are required and in every way satisfactory to the Client.

7. LIST SUPPLIED

7.1 Where a List Owner makes an allowance to users of a List, the contents of any part of which have resulted in a mailing being undeliverable, than, subject to the User observing these terms and conditions, the User shall be entitled to a pro-rata rebate in respect of the invoiced rental charge provided that: more than on above 5% of the total number of addresses on the list are incorrect:; (rebate is on the quantity above 5%) the returned addressed Mailing Pieces are delivered by the User within 60 days of the agreed mailing date directly to the List Owner (and not to MOC unless otherwise agreed).

8. USE OF THE INFORMATION

8.1 Unless otherwise agreed in writing by the duly authorised representatives of the Client and MOC.

8.1.1 The Client shall use the information once only for the specific promotional material supplied and as specified in the Special Conditions and in any event within 6 months of the delivery of the information to the Client.

8.1.2. The Client shall not communicate with any name and address contained in any List supplied in any way other than through the Royal Mail or other similar distribution or delivery medium, unless agreed by the owner and MOC in writing.

8.1.3 The Client shall not use the information until it has complied with Clause 3.4 of these Conditions and the Owner has approved the sample.

8.2 Within one month of the date of use of the information and unless otherwise agreed by MOC in writing the Client shall comply with clause 15.2 of these Conditions as if a termination had occurred.

9 OWNERSHIP OF THE INFORMATION

9.1 At all times full legal and equitable title in all and any information and any modifications and Enhancements thereof supplied to the Client shall remain in the Owner.

9.2 The Client shall store or otherwise keep the information in such a way as clearly to indicate at all times that the information is owned by the Owner and shall not remove obscure or delete any mark placed on the information by the Owner which may enable the information to be identified.

10 PROTECTION OF COPYRIGHT

The Client agrees with MOC throughout the period of the Contract:

10.1 Not to cause or permit anything which may damage or endanger the Copyright of the Owner or the Owner’s title to the information or assist or allow others to do so.

10.2 To notify MOC and the Owner immediately of any suspected infringement of the Copyright.

10.3 To take such reasonable action as MOC and/or the Owner shall direct at the expense of the Owner in relation to such infringement.

10.4 To compensate MOC and the Owner for any use by the Client of the information otherwise than in accordance with the Contract.

10.5 To indemnify MOC and the Owner for any liability incurred to third parties for any use of the information otherwise than in accordance with the Contract.

11 CONFIDENTIALLY & NON-SOLICITATION

11.1 The Client agrees to maintain secret and confidential all information obtained from MOC or the Owner pursuant to the provision of the Contract and all other information that it may acquire from MOC and the Owner in the course of the Contract.

11.2 The Client shall procure that all its employees who have access to any information to which the Obligations of clause 11.1 of these Conditions apply shall be made aware of and subject to these Obligations.

11.3 The obligations as to confidentiality in this clause shall remain in full force and effect notwithstanding any termination of the Contract.

11.4 The Client undertakes and covenants with the other that during the continuation of the Contract and for a period of one year thereafter it will not endeavour to entice away from MOC any person who is employed by MOC and who is or was engaged in relation to the performance of the provisions of the Contract

12 CLIENT’S FURTHER OBLIGATIONS

12.1 The Client shall not be entitled to assign or sub-licence the rights of the Contract to any third Party without the prior written consent of a duly authorised representative of MOC.

12.2 The Client shall ensure that any User or Processor firstly is supplied with a copy of these Conditions and secondly undertakes to act or not to act (as the case may be) in such ways as shall be consistent with the Clients obligations in the Contract.

12.3 The Client shall indemnify MOC and the Owner against any breach of the Contract by the Client or due to any act or omission of the User and/or the Processor which if it were an act or omission of the Client would constitute a breach of the Contract. The Client and MOC are obliged under the Data Processing ACT 1998 to have a written agreement to ensure the protection and security of personal data and its processing. This is deemed to be incorporated in MOC Bureau Terms & Conditions and these Standard Terms & Conditions & List User Warranty. Where MOC act as data processor, is subject to MOC Bureau Terms & Conditions deemed to be incorporated into these Terms & Conditions and every contract entered into with MOC.
12.4 The Client agrees and warrants that any items mailed by or on behalf of the Client as a result of using the information shall conform to the samples supplied to and approved by the Owner in accordance with clause 3.4 of these Conditions and will not contain anything which infringes the Copyright is unlawful is in breach of industry regulations or codes of practice.

12.5 The Client agrees to conform and to procure that any User conforms at all times with the British Code of Advertising Practice and the Data Protection Act 1998.


13 MOC RIGHTS

13.1 MOC shall be entitled to assign sub-contract or sublet its obligations under the Contract or any part of it.

13.2 Lists agreed to be used for telephone canvassing must be screened against the Telephone Preference Service file before use and may only be used for the duration of the stated specific campaign. Any request for access, correction or deletion of inaccurate data received by the client or user from an individual whose name can be identified as being included in the list(s) / information supplied to will notified to MOC within 30 days of receipt. Any request for suppression received by the client or user from an individual whose name can be identified as being included in the list(s) information supplied will be so recorded and marked by the client and will be suppressed from any list subsequently used by the client or user and, referred to the Mailing Preference Service.

14 EXCURSION OR LIMITATION OF MOC’S LIABILITY

14.1 MOC relies on the description of a List given to it by the Owner and has not verified the accuracy of such description.

14.2 MOC does not accept any responsibility for the contents of or description attached to any lists supplied.

14.3 MOC does not accept any liability for loss resulting from the non-delivery of mail to names and addresses included in any Lists supplied.

14.4 MOC shall not be liable for any reduced quantity of names and addresses included in any List supplied other than to reduce the Contract price calculated pro rata by reference to the number of names and addresses supplied in the List.

14.5 In any event and notwithstanding anything contained in the Contract MOC liability in contract (including negligence or breach of statutory duty) or otherwise arising by reason of or in connection with the Contract shall be limited to the price of Goods specified in the Contract

14.6 MOC shall not be liable for any delay in delivery of the Goods howsoever caused.

14.7 MOC endeavour to supply the most accurate information possible, though no responsibility is taken to guarantee the result of any mailing. MOC shall not be liable for any loss, costs, claims, expenses (including consequential loss) which may arise in connections with the supply by MOC of a list. MOC does not give any warranty or statement, express or implied, statutory or otherwise as to the accuracy or completeness of the list or its fitness for any particular purpose.

15 TERMINATION

15.1 MOC may terminate the Contract by giving written notice to the Client.

15.1.1 immediately upon the Client entering into liquidation whether compulsory or (not being a voluntary liquidation for the purposes of reconstruction and amalgamation) or upon an encumbrancer taking possession or a receiver being appointed over any of the property of assets of the Client or upon the Client making any assignment for the benefit of its creditors or ceasing to carry on its business

15.2 Forthwith upon termination of the Contract howsoever arising the Client shall:

15.2.1 Cease to use the information and return the information to MOC unless MOC directs otherwise in writing.

15.2.2 Cause the Information to be erased from its computer if appropriate and unless otherwise agreed in writing with MOC.

15.2.3 Certify in writing by its duly authorised representative that clause 15.2.2 of these Conditions have been complied with if MOC so requires.

15.3 Termination of the Contract for any reason shall not bring to an end unless specifically stated in the Contract to do so:

15.3.1 The confidentiality of the parties to the Contract.

15.3.2 The Client’s further obligations under clause 12.3 of these Conditions

16 FORCE MAJEURE

16. 1 If either party to the Contract is a affected by Force Majeure it shall promptly notify the other party of the nature and extent of the circumstances in question.

16.2 Notwithstanding any other provision of the Contract neither party shall be deemed to be in breach of the Contract or otherwise be liable to the other for any delay in performance or the non-performance of any of its obligations under the Contract to the extent that the delay or non-performance is due to any Force Majeure of which it has notified the other party and the time for performance of that obligation shall be extended accordingly.

17 NOTICES

17.1 Any notice required to be given by either party to the Contract to the other shall be in writing and shall be served by sending the same by registered or recorded delivery post to the address of the other party as notified by that party as being its address for service.


17.2 All notices documents communications and any other data to be provided under the Contract shall be in the English language unless otherwise agreed.

18 GOVERNING LAW AND DISPUTES

18.1 The construction validity and performance of the Contract shall be governed in all respects by English law.

18.2 All disputes arising in any way out of or affecting the contract shall be subject to the exclusive Jurisdiction of the English Courts to which the parties to the Contract agree to submit.

18.3 If any term or provision in 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 or part shall to that extent be deemed not to form part of the Contract but validity and enforceability of the remainder of the Contract shall not be affected.