TERMS OF BUSINESS
These terms and conditions govern all offers, quotations, orders, order acknowledgements and Contracts for the provision of Goods and/or Services between Market Sell Repeat Ltd trading as Explosive Marketing (“The Company”) and any user of the Goods and/or Services (“the Client”) to the exclusion of any other terms. These terms and conditions can only be varied with the written consent of a Director of The Company.
- 1.1 “Contract” – The signed Explosive Marketing System Scheme Agreement to which these terms and conditions relate. Accepting these Terms of Business via our online submission is classed as an online signatory and agreement to this Contract
- 1.2 “Contract Date” – Means the date of signing the Contract or the renewal date of a Contract in accordance with these terms and conditions, including online form submission.
- 1.3 “Minimum Term” – Means the initial period detailed on the Contract.
- 1.3 “Goods” – Means all or any parts of the items and products supplied by the Company to the Client, including printed material and any other product or service.
- 1.4 “Services” – Means all or any part of the Services supplied by the Company to the Client, including loyalty card production, postcard printing, mailing, email, SMS, web terminal/online portal access and any other related Services.
- 1.5 “Set-Up Fee” – Means the initial charge for establishing a marketing and loyalty system for the Client, in line with the specifications detailed in the Contract.
- 1.6 “Management Fee” – Means the monthly charge, which is fixed for the duration of the Contract term and charged monthly in advance.
- 1.7 “Usage Fees” – Means the variable monthly charges covering the utilisation of the scheme, including the volume of postcards, emails, SMS, and any other ad-hoc Goods and Services provided under the scheme.
- 1.8 “Member” – Means all persons signed up to the Client’s loyalty scheme and/or contained within relevant customer databases in use for the purposes of the marketing and loyalty package.
- 1.9 The clause headings do not form part of the Contract.
2. DELIVERY AND SPECIFICATIONS
- 2.1 Following the Contract Date and payment of the relevant Set-Up Fee, the Company shall create a marketing and loyalty package, in accordance with the specifications agreed with the Client in that Contract and shall thereafter deliver the same, along with any other Goods and/or Services specified in the Contract, to the Client.
- 2.2 Time shall not be of the essence with regards to delivery and/or provision of the Goods and/or Services and any dates quoted are estimates only.
- 2.3 The Company may make partial deliveries.
- 2.4 All illustrations and specifications relating to the Goods and/or Services are approximate only and the Company reserves the right to make such alterations as it sees fit.
3. CANCELLATION BY THE CLIENT
- 3.1 The Client may terminate the Contract at any time by giving the Company not less than forty-two days’ written notice in accordance with clause 5.2 and paying the sum calculated in accordance with clause 4.
4. TERMINATION PAYMENT
- 4.1 If the Client gives notice of termination of the Contract, in accordance with clause 3.1, the Client shall pay to the Company an amount equal to any arrears or other payments outstanding under the Contract at the date of termination, together with agreed compensation for the loss of future earnings, which shall be the total sum that would have been payable during the remained of the fixed period of that Contract. All such payments are due immediately following the termination date.
5. LENGHT OF CONTRACT
- 5.1 The term of the initial Contract shall commence on the Contract Date and shall continue until the end of the Minimum Term scheduled on the front of the Contract.
- 5.2 Unless the Contract detailed in 5.1 is terminated by the Client, in accordance with clause 3.1, the Contract shall continue after the expiration of the Minimum Term for an additional period of time equivalent to the Minimum Term. Unless that Contract is terminated by the Client, in accordance with clause 3.1, that Contract shall continue after the expiration of the extended term for an additional period of time equivalent to the length of the extended term, and so on and so forth.
6. PRICES AND PAYMENT TERMS
- 6.1 All prices quoted are exclusive of any Value Added Tax and any similar taxes.
- 6.2 The Company reserves the right to vary the price by any reasonable amount attributable to any changes in the cost to the Company of purchasing or producing the Goods or any materials incorporated in them, or procuring the necessary Services, or to fluctuations in currency exchange rates between the date of the Contract and the date of delivery of the Goods and/or Services specified in that contract.
- 6.3 Payment in respect of Set-Up Fees must be made by cheque or credit card at the time of signing the Contract.
- 6.4 Payment in respect of all Management Fees and Usage Fees should be made by Direct Debit. In instances where such payments are not to be made by Direct Debit, which will be by exception and must be agreed in writing with the Company, the Client must pay the Management Fees for the initial Contract term in advance. Paying this initial Contract term in advance does not constitute cancellation of the Contract.
- 6.5 Payment in respect of invoices that are not to be settled by Direct Debit, which must be agreed in writing with the Company, shall be made strictly within 30 days from the date of the invoice.
- 6.6 Statutory interest, currently at a rate of the Bank of England Base Rate plus 8%, will be charged on overdue accounts. Interest remains payable after judgement.
- 6.7 No payments may be withheld nor may any counterclaims of the Client be set against any payments due.
7. OBLIGATION OF THE CLIENT
- 7.1 The Client will ensure accurate day-to-day administration of the scheme requirements at all times.
- 7.2 The Client will communicate any issues or problems arising in relation to the Goods and/or Services to the Company at the earliest possible opportunity.
- 7.3 The Client will use the system, together with any associated web portals, only for their intended purpose at all times.
8. OBLIGATIONS OF THE COMPANY
- 8.1 The Company will establish the marketing and loyalty scheme in accordance with the particulars of the Contract.
- 8.2 The Company will supply the Goods and Services in a timely manner to ensure the effective operation of the marketing and loyalty scheme.
- 8.3 The Company will process Client and associated membership information in accordance with the principals and requirements of the Data Protection Act 1998.
- 8.4 The Company will create a monthly business intelligence report reflecting information about the Client’s membership and marketing scheme.
9. FORCE MAJEURE
- 9.1 The Company shall be under no liability should it be unable to carry out any provision of the Contract for any reason beyond its reasonable control, including (without limiting the foregoing) Act of God, legislation, war, fire, flood, drought, failure of power supply, lock-out, strike or other action taken by employees in contemplation of furtherance of a dispute or owing to any liability to procure materials required for the performance of the Contract.
- 10.1 The Company shall not be liable for any claim in respect of Goods and/or Services alleged to be defective unless made in writing to the Company within ten days of delivery.
- 10.2 The Client shall be deemed to have accepted the Goods and/or Services ten days after delivery to the Client and no Goods and/or Services delivered to the Client that are in accordance with the relative Contract will be accepted for return without prior approval of the Company in writing on terms to be determined at the absolute discretion of the Company.
- 10.3 If the Client finds a defect in the Goods and/or Services, the Client shall inform the Company at the earliest possible opportunity, shall not use those Goods and/or Services, shall not attempt to remedy any defect found in the Goods and/or Services and shall return any allegedly defective Goods for inspection by the Company, in accordance with Clause 10.2.
- 10.4 Should the Company agree that any Goods and/or Services are defective then the company has the option, at the sole discretion of the Company, to repair or replace the Goods and/or Services, to refund a reasonable proportion of the payments made under the relative Contract, to pay over any insurance proceeds, or to assign to the Client any rights which the Company has against any third party manufacturer.
11. EXCLUSION OF LIABILITY
- 11.1 The Company’s aggregate liability in tort and/or for breach of Contract and/or for misrepresentation and/or for breach of statutory duty in connection with the Goods and/or Services shall not exceed the sum paid to (and to be kept by) the Company for the goods and/or Services in relation to which such claims may have arisen. The Company shall have no liability in any case for loss or profit or other indirect or consequential loss. To the extent that the law may prevent such limitation of liability to a third party, the Client will indemnify the Company against any claim in excess of this limit.
- 11.2 The parties have freely negotiated the Contract, including the payments due under the Contract, in the knowledge that the liability of the Company is to be limited. It is acknowledged that a higher price would have been payable for such limitation.
- 12.1 Risk in Goods shall pass to the Client on delivery.
- 12.2 The Client shall indemnify the Company against all loss or damage to the Goods on delivery.
13. INTELLECTUAL PROPERTY RIGHTS
- 13.1 All intellectual property rights in the Goods, Services and/or any document, data, intelligence, invention or information made or compiled in connection with the Goods and/or Services shall be vested in the Company. The Client shall have a license to use (but not copy) the Goods and/or Services. This license is granted on the following conditions:
- 13.1.1 The license shall not be assigned or transferred to a third party.
- 13.1.2 The license period shall be equivalent to the term of the Contract and any renewal fee shall be determined by that Contract.
- 13.1.3 The Client shall use the Goods and/or Services only insofar as all sums due and payable under the relative Contract have been made.
- 13.1.4 The Client shall not copy or alter the Goods and/or Services or any portion of the Goods and/or Services provided by the Company.
- 13.1.5 The Client shall not use the Goods and/or Services provided by the Company under the terms of the Contract to provide services to a third party.
- 13.1.5 The Goods and/or Services shall not be used for any purpose other than defined by the agreement.
- 13.1.6 The Client shall notify the Company of any infringement of the Company’s intellectual property rights that come to its attention.
- 13.1.7 The Client shall indemnify the Company against any infringements of any rights caused by the supply by the Client to the Company of any plans, drawing reports, designs or other materials for use by the Company in its production of the Goods and/or Services.
14. SCHEME DATA
- 14.1 The Company warrants that it has adopted the appropriate security measures in its installations, systems and files. Likewise, the Company guarantees the confidentiality of the Personal Data, although it shall reveal to the competent public authorities Personal Data or any other information it has in its power or is accessible through its system when required pursuant to applicable legal provisions and regulations.
- 14.2 The Company retains the title and use of the membership behaviour data.
- 14.3 The Client warrants and is liable for, in all cases, the veracity, exactness, update and authenticity of the Personal Data provided and undertakes to keep them fully updated.
- 14.4 In the event of any damage, deletion, loss, alteration or disclosure of Member data, or any part of Member data, caused by the Client or its authorised users is the sole responsibility of the Client. The Company shall not be liable for any legal repercussions leading from the accidental or otherwise lost or distributed data caused by the Client or its authorised users.
- 14.5 The Client’s loyalty club members have the right to make a written request for a copy of the personal data that we keep about them (for which the Company may, at its discretion, make a small administration charge of £10) or to correct the details that the Company holds about them.
15. INDEMNITY AND INSURANCE BY THE CLIENT
- 15.1 The Client shall insure fully against and shall indemnify the Company against all expenses and liabilities connected with:
- 15.1.1 any defect with Goods and/or Services unless such liability is caused solely by the Company’s negligent act of omission in the design or manufacture of the Goods and/or Services.
- 15.1.2 any infringement of any intellectual property rights of any third party caused by the production, supply, use or sale of the Goods and/or Services or the use of any trademark.
- 15.1.3 any negligent or wilful act or omission of the Client in connection with the use or supply of the Goods and/or Services.
- 15.1.4 any liability or loss arising from or connected with any specification supplied by the Client for the manufacture or creation of Goods and/or Services by the Company.
16. TERMINATION BY THE COMPANY
- 16.1 The Company reserves the absolute right to terminate the Contract if the client:
- 16.1.1 fails to make payments for Goods and/or Services in accordance with the Terms and Conditions.
- 16.1.2 commits any other break of any Contract.
- 16.1.3 offers to make an arrangement with its creditors or commits an act of bankruptcy.
- 16.1.4 is unable to pay their debts as they fall due.
- 16.1.5 suffers any analogous proceedings under foreign law.
- 16.2 Or if any:
- 16.2.1 distress or execution shall be levied upon the Client’s Goods and/or Services
- 16.2.2 petition in bankruptcy is presented against the Client.
- 16.2.3 resolution or petition to wind up the Client being a limited company (other than for the purpose of amalgamation or reconstruction without insolvency) is passed or presented.
- 16.2.4 a receiver, administrator, administrative receiver, or manager is appointed over the whole or any part of the Client’s business or assets, then the Company may (without prejudice to its other rights) forthwith terminate the relative Contract or any part of it (in which case the Client shall forthwith pay to the Company compensation for the loss of future earnings, which shall be the total which, but for such termination, would have been payable during the remainder of the fixed period of the relative Contract), and/or withhold delivery of Goods and/or Services.
- 17.1 If any of these terms or any part of any of these terms is unenforceable or void in law, it shall not affect the remainder of such term or any such term or otherwise affect the relative Contract and shall be replaced by such valid term as is near as many give effect to the original term.
- 20.1 The Contract shall be governed by the laws of England and disputes arising from it shall be subject to the jurisdiction of the English courts.
- 20.2 Any dispute or difference arising between the parties in respect of the meaning of any Contract or any other matter arising out of, or connected with, any Contract shall be referred to the determination of an arbitrator to be applied:
- 20.2.1 by agreement between the parties, or;
- 20.2.2 in default of agreement within 21 days of the service upon one party of a written request to concur in such an appointment by the president for the time being of the Chartered Institute of Arbitrators.