In these conditions “the Company” means First Move Marketing Services Ltd trading as First Move direct marketing., “the client” means the client named overleaf, “the goods” and “the services” means contract between the Company and the Client—the particulars of which appear overleaf, “intellectual property rights” means any letters patent, registered trademark or trade-name, any copyright or other intellectual property rights whatsoever existing.
The conditions form part of the Contract.
2. Status of conditions
These conditions can only be cancelled or varied by agreement signed by the Company or by its expressly authorised agents.
In the absence of such agreement any conflict or uncertainty arising between these conditions and any other document passing between the parties in relation to the Contract shall be resolved in favour of these conditions which shall prevail.
Goods and services are supplied at the price ruling at the time of the delivery of the goods or the performance of the services called for by the Contract.
If the price of such goods or services is increased between the date of the Contract and the date of delivery or the performance of services, the Company shall give written details to the Client of the appropriate increase (“The Company’s Notice”).
Except to the extent that work has already commenced within the terms of the Contract or a commitment has been entered into by the Company pursuant to the Contract, the Client may within seven days of the receipt of the Company’s Notice by written notice (“The Client’s Notice”) to the Company at its address shown overleaf cancel that part of the Contract (but no more) which relates to the goods or services specified in The Company’s Notice. Subject thereto the Contract shall remain in full force and effect and the Client shall be liable to pay to the Company the increase (or increases) specified in The Company’s Notice.
The Company’s Notice if sent by post shall be deemed to have been received by the Customer on the business day following posting.
4. Extra charges
Increases in postal, other Post Office costs or courier or delivery charges whether or not notified to the Client shall be borne by the Client.
Goods supplied or services performed additional to the Contract will be charged for at the prices ruling at the date of delivery or performance thereof. In the case of instructions given or contracts placed with third parties in accordance with the Contract, the Company will endeavour, if required by the Client, to modify or cancel any such existing instructions or contracts but the Client agrees to accept responsibility for all additional costs incurred by virtue of any such modification or cancellation including the costs incurred by virtue of existing instructions or contracts which cannot be modified or cancelled for whatever reason.
Unless expressly otherwise agreed the Contract price does not include expedited delivery or performance which if agreed to be performed by the Company shall be charged as additional to the Contract.
5. Payment and interest
Postal and other Post Office costs will be invoiced and payment will be due in advance of posting or delivery.
Charges for all other goods supplied and services rendered (including any other or additional costs and charges, including delivery charges, incurred) will be invoiced by the Company and payment will be due in respect of the same 30 days after the date of invoice.
If a Client shall fail to make payment as aforesaid the Company shall be entitled to refuse to post or deliver the goods or to supply any remaining goods or perform any remaining services under the Contract or under any other contract between the Company and the Client and the Company shall not be liable for any loss or damage suffered by the Client arising directly or indirectly out of any such refusal.
If the Client shall fail to pay any invoiced sum when due, interest on such sum may be charged at the rate of 1.25% per month from the due date for payment.
For the purpose of this condition time shall be deemed to be of the essence of the Contract.
Any sums due or owing to First Move Marketing Services may at any time be offset by the Company against any sums due or owing by Paradigm Holdings Limited or any other associated company.
6. Client goods
To the extent that the Company receives, stores, uses or delivers Clients’ own goods the Client warrants that it is the owner of such goods and that they are not likely to cause any damage or injury and that they do not infringe any third party rights.
The Client acknowledges that the risk in such goods remains in the Client and that the Company is only responsible for any loss or damage to the same or for any non-delivery, mis-delivery or delay in delivery, if the same has arisen due to the act, neglect or default of the Company or its employees but so that in no case shall the liability of the Company exceed a total of £100 per tonne weight of that part of the goods in which any claim arises. The Company shall in no case be liable for any indirect or consequential loss of any kind whatsoever. The Client acknowledges that, subject as aforesaid, it is solely responsible for insurance of the goods against all risks. The Company will only deal with any claim if it is responsible for the same under the terms of this Condition, otherwise the Client accepts responsibility for the conduct of claims.
This Condition is to relieve the Client of the additional costs which would otherwise need to be included in the Price to recover the cost of insurance by the Company if liability were not restricted as provided herein. Where appropriate Clients are advised to ensure that they have suitable insurance arrangements in force.
If it is necessary for the Client to notify its insurers of the place at which its goods are being stored under the Contract the Company will, at the request of the Client, confirm this to the Client. The Company shall not be liable for any loss or damage which arises to the Client as a result of any default or inaccuracy on its part in any such notification requirements.
Where the Company buys printed or other goods for the Client under the Contract, the Company agrees to be liable for any loss or damage to the same whilst at the Company’s premises until the risk in the same passes to the Client. Risk in the same shall pass to the Client on delivery to the Client by the Company of an invoice in respect thereof and thereafter the provisions of 6a and b above shall apply to such printed or other goods or materials.
7. Cost Variation
Estimates or quotations are based on the current cost of production and are subject to amendment to meet any rise in such cost.
VAT. The Company shall be entitled to charge the amount of any VAT payable whether or not the same is included in any estimate or quotation.
The Company shall have a general lien on any property of the Client in the possession of the Company under the Contract for any sum owed by the Client to the Company thereunder or under any other contract between the parties and the Company and shall be entitled to retain possession of such property until the payment of any such sum.
The Company shall be entitled to charge the Client with and the lien shall be deemed to extend to all storage rent and other expenses incurred in connection with the exercise of the aforesaid lien.
The Company may by notice in writing to the Client call on the Client to pay forthwith all sums then due to the Company and if the Client fails to comply within fourteen days of the receipt thereof (including the day of receipt) the Company shall be at liberty to sell, remove or otherwise dispose of any property of the Client in the possession of the Company and may apply the proceeds of any such sale removal or disposal (“disposal”) towards the discharge of such sums. The Company shall be under no duty to the Client in respect of any such disposal and the same shall not in any way prejudice the right of the Company to recover any balance thereafter due to the Company. If the property of the Client is of little or no commercial value and is a source or a potential source of danger, nuisance, inconvenience or embarrassment to the Company, the Company may call upon the Client to remove the same within forty-eight hours and if not so removed the Company may destroy the same or dispose of it gratuitously or otherwise in any way the Company sees fit.
10. Illegal infringement
The Client warrants that the execution by the Company of the Contract and the use by the Company of any goods supplied by the Client or the use by the Client of any goods supplied to the Client by the Company will not cause any damage or injury, cause the Company to infringe any intellectual property or other third party rights, to be in breach of the general law or cause any defamation and the Client shall fully indemnify the Company against any loss or damage arising from any such infringement, breach or defamation, except where such loss or damage arises from the wilful default or neglect on the part of the Company.
If the performance of any part of the Contract would in the opinion of the Company infringe or be likely to infringe any intellectual property or other third party rights or cause to be likely to cause any defamation or be likely to be in breach of the general law or would be prejudicial to the interests of the Company or its Clients the Company may without prejudice to the continued existence of the Contract refuse to execute such part of the Contract or rescind the Contract.
The Client shall if required furnish the Company with all advertising or other material and a true description of any other material intended to be enclosed in any envelope, package or container to be posted or otherwise dealt with by the Client through any addresses or any document or other item supplied by the Company under the Contract or otherwise. In the event of any default by the Client the Company shall be entitled to rescind the Contract.
Upon a refusal or rescission under sub-clauses 10b or c hereof the Company shall not be liable to the Client for any loss or damage, whether direct or indirect, suffered by the Client and the Company may charge the Client with such costs and charges incurred or made under the Contract to the date of such rescission.
11. Postal and marketing information
Any postal or marketing information given by the Company is given by way of comity only and without responsibility or warranty by the Company and the Client must satisfy itself as to the accuracy thereof.
12. Postal certificates
The Company may at its option furnish postal certificates to the Client and if so the cost of the same shall be charged to the Client and any such certificate shall as between the Company and the Client be conclusive evidence of posting.
13. Default of post office
The Company shall not be liable for any loss or damage suffered by the Client by reason of any act, default or omission by the Post Office or other delivery firm or Company or non-delivery, mis-delivery or delayed delivery by any of them and the same shall not entitle the Client to any adjustment in the amount of the costs and charges chargeable to it or to withhold any part thereof.
14. Number of addresses
The Company will use its best endeavours to estimate or quote the number of any names and addresses to be supplied to the Client under the Contract accurately but the Company does not warrant that such estimate or quotation will tally with the final figures reached in connection therewith during the execution of the Contract and the Company does not accept any liability for any shortfall therein.
15. Company’s lists
Lists of names and addresses are supplied for the sole and exclusive use of the Client for the purposes of the Contract only and for no other purpose. Such lists are and the information emanating from them is confidential to the Client and must not be passed or communicated to any third party. The copyright in such lists shall remain vested in the Company and the Contract shall not confer upon the Client any rights in respect of such lists or the copyright therein or to make use of the same save under and for the purposes of the Contract.
Subject to Condition 15a and to any other conditions or restrictions which may be binding on the Company (particulars of which, if relevant, the Company shall disclose to the Client) the copyright in any copy or creative work created by the Company under the Contract shall vest in the Client when the Client has paid the invoice or invoices rendered in respect of the same.
16. Quantities of excess goods
All goods to be supplied by the Client shall be of sufficient quantity and shall be delivered to the Company in sufficient time. The Company shall be under no obligation to examine or check the same whether as to quality or quantity or as to the accuracy, legality or suitability of any printed matter or logo thereon.
Where goods are supplied or obtained by the Company for the Client, quantities and time of supply and delivery are not guaranteed and due allowance shall be given for wastage and tolerances generally or customarily accepted. Any additional postage or delivery charges incurred in delivering any excess quantities shall be reimbursed by the Client to the Company. The Company shall not be liable for any shortages in quantities unless directly attributable to the Company’s omission or default.
Any goods not required under the Contract or remaining unused following completion of the Contract will be returned at the Client’s expense within 14 days of the completion of the Contract if the Client so requests. In the event of the Client failing to remove the goods, the Company shall have the power to destroy, sell or otherwise dispose of the same without further notice and may apply the proceeds of sale in or towards the payment of any sums due from the Client and any expenses incurred by reason of sale or disposal. Any surplus will be paid over to the Client without interest.
The Company will use its best endeavours to perform the Contract within the time quoted for its performance or to comply with any request or contractual provision for expedition but time shall be deemed not to be of the essence of the Contract unless specified by the Client before the making of the Contract, and agreed in writing, nor does the Company give any warranty as to time and the Company shall not be liable for any loss or damage suffered by the Customer consequential upon any failure by the Company to perform the contract within the quoted time or to comply with any request or contractual provision for expedition.
The Client shall provide the Company with sufficient specifications in writing of its requirements under the Contract and any variation thereof must be in writing and agreed by the Company. The Company reserves the right to refuse to act upon any specifications which in the opinion of the Company are not sufficient and such right shall not be affected by any earlier acceptance by the Company of the same.
Where the Company prepares, makes or advises on any copy or creative work under the Contract, when such copy or creative work has been approved by the Client, the warranty in Condition 10a shall apply to the same as if it were goods supplied by the Client under such Condition.
The Company shall not be under any obligation to verify the legality, accuracy or viability (whether commercial or otherwise) of any specification accepted or of any copy or creative work supplied or accepted by the Company (whether or not the Company has been involved in its creation or preparation) nor shall it be liable for any loss or damage suffered by the Client consequent upon any defect in any such specification, copy or creative work and the Client shall indemnify the Company against any such loss or damage suffered by the Company.
The Company, being an agency recognised by the Direct Mail Services Standards Board, has an obligation to uphold the British Code of Advertising Practice and the British Code of Sales Practice. Acceptance of work from Clients is based upon the understanding that the Client warrants to operate within and to observe the normally accepted codes of conduct for the advertising industry, including in particular the said Codes.
The Company is registered as a Data User under the Data Protection Act 1998 and work undertaken, which utilises information supplied by the Client, is carried out on the understanding that the Company is authorised to utilise such information and, where appropriate, that the Client is registered as a Data User under the said Act.
The Company may (i) delegate the performance of the Contract or any part thereof to any of the Company’s subsidiary or associated companies or employees and (ii) sub-contract the performance of the Contract or any part of it, and these conditions shall apply for the benefit of any company or person to which or whom such delegation or sub-contract is made as they apply to the Contract.
20. Risk and property
Subject to Condition 6d, the risk in any goods supplied under the Contract shall pass to the Client upon delivery but the property in such goods shall not pass to the Client until the goods have been invoiced to, and have been paid for by the Client in accordance with these conditions.
So far as the law allows all conditions and warranties as to the condition, quality, description or fitness for any purpose of any goods to be supplied or as to the nature or quality of any services to be performed under the Contract are excluded.
Neither the servants nor the agents of the Company are authorised to make representations on behalf of the Company.
The Company will not be liable for any failure or delay in publication or transmission or for any error in any advertisement in the absence of wilful default or neglect on the Company’s part.
22. Force majeure
In the event of the Company being prevented from or delayed in carrying out the Contract by reason of Act of God, fire, flood, strikes, lock-outs, sit-ins, industrial disputes, war (whether declared or not), riots, civil strife, delays in transit, shortages of or difficulties in procuring goods or any other unexpected or exceptional causes beyond its control the Company shall be relieved of liability incurred under the Contract whenever and to the extent to which the fulfilment of its obligations thereunder is thereby prevented or frustrated and the time for the execution of the Contract shall be extended until a reasonable time after the said event has ceased and the Company shall not be liable for any loss or damage howsoever suffered by the Client as a result of that event or extension.
In addition to any other rights to terminate the Contract, the Company may terminate this or any other contract between the Company and the Client without compensation to the Client (i) if the Client is one or more individuals or are partners, his death or the death of any of them, a change in any of the partners, his or any of them suffering execution to the levied on his goods, entering into any composition or arrangement with his creditors or becoming bankrupt; or (ii) if the Client is a Company, its passing a resolution or the court ordering that it be wound up or a receiver or manager being appointed, or if an application is made for an administrative order in respect of the Client.
No forbearance or indulgence by the Company shown or granted to the Client either in respect of these conditions or otherwise shall prejudice or affect the rights of the Company against the Client or be taken as waiving any of these conditions.
In the event of any termination by the Company hereunder the Client shall forthwith pay to the Company all sums due from the Client to the Company and the Company shall forthwith be relieved of any obligation to make any further performance of the Contract and of all liability thereunder.
The exercise of any of the rights granted to the Company pursuant to this clause shall not prejudice or affect any right of action or remedy which shall have accrued or shall accrue thereafter to the Company.
The Client may not assign, charge or otherwise deal or dispose of the benefit of the Contract without the prior consent in writing of the Company.
25. Proper law
The Contract shall be subject to and construed in accordance with English law and all proceedings shall be brought in the courts of England.
The headings in these Conditions are for convenience and identification only and are in no way to restrict, prejudice or affect the meaning or interpretation of the particular clause or clauses concerned or the terms of the Contract.
As a member of the Data and Marketing Association we have an obligation to uphold at all times, in letter and spirit, the British Code of Advertising Practice.
Our acceptance of work from clients is based upon the understanding that they too undertake to work within the normally accepted codes of conduct for the advertising industry, including in particular the British Code of Advertising Practice, the British Code of Sales Promotion Practice and the Code of Practice of the Independent Committee for the Supervision of Standards of Telephone Information Services.