(i) The terms set out in this Agreement govern all transactions between the Customer and the Company except as otherwise specifically agreed in writing by a Director of the Company and to the exclusion of any other terms even if those terms are contained in any part of the Customer’s document that purports to provide that the Customer’s own terms shall prevail.
(ii) The term of this agreement shall commence on signature of the booking form, or, if the Customer has entered into a long term trading agreement with the Company, the Contract Commencement Date as specified on the front sheet and shall continue thereafter until either party terminates this agreement in accordance with Clause 12.
(iii) If there is a long term agreement in place, the Customer shall make each order by telephone. The Company shall confirm each order orally or by email. If no such agreement is in place the Company will issue a booking form, which must be signed by the Customer before the Company will accept the order. Acceptance by the Company creates a binding contract between the Company and the Customer for the supply of distribution services (the "Services")
(iv) Each clause and sub-clause is severable and independent of every other clause and sub-clause. If any provision is found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of the Agreement which shall remain in full force and effect.
(v) The agreement shall be governed and construed in accordance with English Law.
(i) The Company has an absolute discretion to refuse to accept publish or distribute any order, whether paid for or not, in particular, but without prejudice to the foregoing, if it believes the acceptance, publication or distribution of same would:
(A) infringe any law or statutory requirement
(B) Infringe the British Code of Advertising Practise
(C) Be a breach or infringement of a copyright, patent, trade mark or any other such right
(D) Be libellous, obscene, or in breach of any rights of any third party whatsoever.
(ii) An order may be cancelled if notice in writing is received by the Company seven days before scheduled date of distribution. In the event of a cancellation the Customer will pay to the Company:
(A) The costs incurred by the Company in connection with the said order including any costs incurred in the proposed distribution and,
(B) 25% of the order price representing an agreed estimate of the Company’s loss of profit on the order.
(i) The Customer’s order must specify:
(A) The precise area(s) in which distribution is required: and
(B) The dates on or between which distribution is required.
(ii) The Company will estimate the quantity of material required to cover the said area and advise the Customer accordingly.
(iii) In making such an estimate, the Company does not imply 100% coverage to the said area, nor can it guarantee distribution to a particular property in the area.
(iv) The Customer shall deliver the material for distribution to the address(es) supplied by the Company, not earlier than two weeks and not later than one week before the proposed distribution date, in units of 100 items, boxed in units of 1,000 or 2,000 items.
(v) The Company reserves the right not to distribute to any property or area that is considered to be unsafe or undesirable for distributing teams.
(i) Every order shall be paid for in full at least 7 days before the scheduled distribution date unless otherwise agreed in writing by an agent of the Company authorised to do so.
(ii) In the case of non-payment the Company shall be entitled to terminate the order without notice.
(iii) If monies due under this agreement are not paid on the due date the Customer will pay interest on the sum outstanding as four percent (4%) over the Base Rate from time to time declared by the Barclays Bank plc from the date due to the date of payment whether before or after Judgment.
(iv) Without prejudice to its other remedies, the Company shall in respect of all unpaid debts due from the Customer have a general lien on all goods and property in its possession and shall be entitled on the expiration of 14 days written notice sent to the Customer at his/her last known address to dispose of such goods and property as it thinks fit and to apply any proceeds towards such debts. The Company shall not be liable for any loss or damage caused by or consequent upon such action.
(v) The Company may make reasonable charge for storage of the Customer’s property if delivered before the date specified in clause 3 (iv) or if for any reason it is not distributed or delayed.
(vi) The Customer shall not make any deduction from the amount due or any deferment of payment on account of any disputes, set offs, or cross claims.
(vii) The prices quoted by the Company are exclusive of Value Added Tax, unless otherwise stated, which will be charged at the rate currently in force. (VAT Reg No. 942 416 726)
(i) The Company will endeavour to arrange for the distribution of the quantities of material in the area(s) on or about the dates specified in the confirmation of the Customer's order but cannot guarantee such distribution. All dates quoted for distribution of the material supplied by the Customer are approximate only and the Company shall not be liable for any delay in the distribution of the materials, howsoever caused. The time of distribution of the materials shall not be of the essence of the contract unless previously agreed in writing by the Company.
(ii) The Company shall not be liable to the Customer for any loss or damage suffered by the Customer arising from late distribution.
(i) Any dispute arising between the parties under or in connection with this Agreement will be resolved using the Company's Customer Complaint Procedure. This is available upon request.
(ii) All complaints or claims must be notified to the account handler or a Director of the Company within seven days of the relevant distribution dates(s)
(iii) In the event of a non-distribution complaint the Company will, upon receipt of the details of the properties or the area in question, investigate the complaint and depending upon the results of such investigation will reimburse the Customer that proportion of the order price (excluding the price of printing) as is equal to the proportion of the order found not to have been delivered.
The Company will not be liable to the Customer for delay in performing its obligations or failure to perform its obligations if such delay or failure results from circumstances beyond its control including but not limited to Act of God, failure to perform of third parties, fire, explosion, accident adverse weather conditions, flood, earthquake, terrorism, riot, civil commotion, war, hostilities, strikes, work stoppages, slow-downs or other industrial disputes, riots or civil disturbances, acts of government, lack of power and delays by suppliers or materials shortages.
The Customer shall at all times be responsible for the insurance of any material whether for distribution of otherwise in possession of the Company or its agents. Such materials are at all times at the risk of the Customer.
(i) EXCEPT AS PROVIDED HEREIN THE COMPANY SHALL BE UNDER NO LIABILITY WHATSOEVER TO THE CUSTOMER IN REGARD TO THE SERVICES PROVIDED PURSUANT TO THE ORDER AND ANY CONDITIONS OR WARRANTY WHICH MIGHT OTHERWISE BE IMPLIED OR INCORPORATED BY CONTRACT, BY REASON OF STATUTE, COMMON LAW OR CUSTOM OR OTHERWISE IS HEREBY EXCLUDED TO THE EXTENT PERMITTED BY LAW.
(ii) The Company will be responsible for damage to the Customer's property if such damage is caused directly by the Company’s negligence or of any person whose acts the Company is responsible save that the Company’s liability under this condition for damage to the Customer’s property shall be limited to the total value of the order.
(iii) Nothing in this Agreement shall operate to exclude or restrict the Company's liability for:
(A) death or personal injury resulting from negligence; or
(B) fraud or deceit.
(iv) The Company shall in no circumstances be liable to the Customer or to any other party whether in contract, tort (including negligence or breach of statutory duty) or otherwise for any of the following losses or damages, whether direct or indirect, arising out of, or in connection with, the supply, non supply or delay in supplying the Services or otherwise in connection with this Agreement:
(A) loss or damage incurred by the Customer as a result of third party claims;
(B) loss of actual or anticipated profits;
(C) loss of business opportunity;
(D) loss of anticipated savings;
(E) loss of goodwill;
(F) injury to reputation; or
(G) any indirect, special or consequential loss howsoever caused even if the Company was advised of the possibility of them in advance.
(v) SUBJECT TO CLAUSES 9(III) AND 9(IV) THE ENTIRE LIABILITY OF THE COMPANY ARISING OUT OF OR IN CONNECTION WITH THE SUPPLY, NON SUPPLY OR DELAY IN SUPPLYING THE SERVICES, OR OTHERWISE IN CONNECTION WITH THE AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY) OR OTHERWISE, IS LIMITED, PER ORDER, TO THE FEES PAYABLE FOR THAT ORDER
In the event that any complaint, claim, action proceedings, or prosecution is brought or made against the Company in respect of, or arising in any way from any matter or things appearing in or on the material published or dealt with by the Company for the Customer, whatever such matter or thing is, or is alleged to be illegal, unlawful, libellous, in breach of an infringement of copyright, trade mark, patent design or any third party right whatsoever of any nature, or in breach of any code, regulation or guide-lines whether they have statutory force or otherwise and whether such complaint, claim, action or proceeding is settled, compromised or litigated in any way and as a result the Company incurs any costs, loss, damage, liability or penalty of any kind, the Customer shall forthwith, upon demand in writing, sent to the Customer’s last known address indemnify the Company in full in respect of such cost, loss, damage or liability including any legal or other costs incurred in relation thereto and without exercising any right of set off, counterclaim or cross demand of any nature against the Company.
The intellectual property rights of any artwork documents or other material prepared by the Company for use in connection with any order whether published or not shall belong to the Company.
(i) Either party may terminate this Agreement by giving the other party seven days' written notice.
(ii) If the Customer:
(A) fails to pay for any order on the due date; or
(B) commits a breach of contract or obligation to the Company; or
(C) enters into liquidation whether compulsorily or voluntarily or makes or offers any arrangement or composition with its creditors or becomes subject to an administration order or commits any act of bankruptcy or if any petition or receiving order in bankruptcy is presented or make against him; or
(D) if a receiver is appointed to any of the Customer’s property or assets
the Company may determine any contract then subsisting without notice and without prejudice to any of the Company’s other rights and claim the Customer shall pay the Company forthwith:
The costs incurred by the Company in connection with the said order including any costs incurred with distribution; and
25% of the order price of any outstanding orders, representing an agreed estimate of the Company’s loss of profit on this Agreement.
The Company reserves the right to sub-contract any part of any order.
(i) In this clause 15, "Confidential Information" means all confidential information disclosed (whether in writing, orally or by another means and whether directly or indirectly) by one party to the other party whether before or after the date of this Agreement.
(ii) During the term of this Agreement and after expiry or termination of this Agreement for any reason a party :
(A) shall not use Confidential Information for a purpose other than the performance of its obligations under this Agreement;
(B) shall not disclose Confidential Information to any person except with the prior written consent, or to any of its directors, employees and sub- contractors to the extent that disclosure is reasonable necessary for the purposes of this Agreement; and
(C) shall make every effort to prevent the use or disclosure of Confidential Information.
The Customer may not assign its rights hereunder to a third party without prior written consent of the Company.
Any written notice under this Agreement shall be deemed to have been properly given if hand– delivered or sent by pre-paid first class letter post to the registered office or any one of the principle places of business of the party being served on the date two working days after posting.
The rights and remedies provided by this Agreement may be waived only in writing and any failure or any delay in exercising a right or remedy by the Company shall not constitute a waiver of that right or remedy or of any other rights or remedies. A waiver of any breach of any of the provisions of this Agreement shall not constitute a waiver of any other breach and shall not affect the other provisions of this Agreement.
(i) This Agreement represents the entire agreement and understanding between the parties and supersedes any previous agreement between the parties.
(ii) Each of the parties acknowledges and agrees that in entering into this Agreement, and the documents referred to in it, it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) other than as expressly set out in this Agreement. The only remedy available to either party in respect of any such statement, representation, warranty or understanding shall be for breach of contract under the terms of this Agreement
In Touch Local Media Ltd
PO Box 323
Distribution of the newspaper and leaflets are subcontracted by In Touch Local Media Ltd to Mailbox Distribution, a national company which specialises in the distribution of printed materials