1.1 “This Agreement” means the terms and conditions set out hereunder.
1.2 “The Client” means the individual firm or limited company specified to whom the Services are to be provided.
1.3 “The Company” means BMS Data Services a division of BMS Marketing Services Ltd.
1.3 “The Information” means any information (in whatsoever form) (including without limitation any list of names and addresses of individuals and/or businesses) contained in the Media.
1.4 “The Charges” means the amount payable for the services.
1.5 “The Media” means the records, tapes or other materials and documents by which the Information is communicated to the Client.
1.6 “The Services” means the Media and the services to be provided by the company in accordance with this Agreement (details of such services being set out below).
1.7 “The User” means that individual firm or limited company or other party as may be specified below that is to use the Services.
1.8 “Bureau” means any third party which is responsible to the Client and/or the User and which is to assist the Client and/or the User in using the Services.
2. Application of the Terms and Conditions
The terms and conditions set out herein shall apply to all contracts for the sale of services by the company to the buyer with the exclusion, which placed by the buyer and confirmed accepted by the company. No other terms and conditions shall be binding upon the parties, and this contract embodies the entire understanding of the parties and there are no promises, terms, conditions, obligations, oral or written, expressed or implied, other than those contained herein, or confirmed in writing by the company and attached here-to.
2.1 These conditions shall apply to all contracts for the sale of services by the company to the Client with the exclusion of all other terms and conditions including any terms or conditions which the buyer may purport to apply under any purchase order, confirmation of order or similar document.
2.2 The company reserves the right to alter, add and subtract from these terms and conditions at any time. The Terms and Conditions are available to view online at www.bmsmarketingltd.co.uk these Terms and Conditions replace any previously agreed and It is the responsibility of the buyer to make themselves aware of what these are.
2.3 Any variation to these terms and conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless confirmed in writing by the company.
2.4 All orders for services shall be deemed to be an offer by the Client to purchase services pursuant to these conditions.
2.5 Signing of any contract order form,clicking submit on our online order form, or receipt of an email to proceed shall be deemed conclusive evidence of the Buyer’s acceptance of these terms and conditions.
3. CONTRACT TERMS
3.1 Subject to Clause 17 hereunder this Agreement and any other agreement between the company and the Client shall be upon the terms and subject to the conditions set out below to the exclusion of any other terms and conditions whether or not the same are endorsed upon delivered with or referred to in the order or any other document delivered sent or otherwise disclosed by the Client to the company. The Client has not relied upon any representations or warranties by the company save as expressly provided in this Agreement.
4. PAYMENT OF CHARGES
4.1 The charges payable for the Services (“the Charges”) shall be as specified below.
4.2 The company require the charges to be paid in full before the Services are provided to the Client.
4.3 All charges are required to be paid 30 days from invoice date.
4.3 Payment by credit / debit card is preferred. By this method the company will at no time hold a record of your credit or debit card details.
4.4 The company also accept cheques as payment. Cheques must be for UK Pounds only, made payable to BMS MARKETING SERVICES Ltd and posted to the address shown on our contacts page.
4.5 The company accepts orders from any country in the world. All non UK Pounds payments must be made by credit or debit card.
4.6 If payment of the contract price is unpaid for after 30 days of the due invoice date, the full amount shall immediately become due and payable, the company reserves the right to charge interest at current Barclays Bank rate on any outstanding balances overdue for payment.
4.7 Interest at an annual rate of 4% above Barclays Bank plc’s base rate from time to time shall accrue daily and be calculated on a daily basis on any sum overdue from the date of invoice until payment in full of the Charges (whether before or after any judgment)
4.8 Unless expressly stated otherwise the Charges shall be exclusive of VAT (which for the avoidance of doubt shall be payable at the prevailing rate by the Client in accordance with the terms and conditions hereof)
4.9The Client shall have no right of set-off against the company in respect of any claims it may have against the company (whether in connection with this Agreement or otherwise)
4.10 Additional charges shall be payable for any additional services which the Client requires the company to provide subsequent to any quotation given by the company.
4.11 All delivery and handling charges shall be payable by the Client.
4.12.0 In the event that the company agrees to supply the Information for the purpose of deduplication against other data held by the Buyer and on the basis that the Buyer shall only pay a proportion of the price reflecting the “Net Names” actually used, any claim for credit for the unused portion of the Information.
4.12.1 must be made within a period not exceeding four months from the date of delivery, unless otherwise agreed in writing by the company.
4.13.2 must be supported by a deduplication report or certificate from a recognized data processing bureau or other independent agency approved by the company.
5.1 Any quotations made by the company is made on the basis that all services quoted for will be ordered and in accordance with costs prevailing at the time of quotation. Quotations and the Charges are subject to amendment at the company’s discretion on or at any time after acceptance in order to meet any increase in such costs (due to whatsoever cause).
5.2 The company may correct any charges payable under this Agreement and invoices in respect thereof where typographical clerical or other errors have been made.
6.1 Property and the copyright (and all other intellectual property rights) in the Media and the Information (other than any information which was passed to the company by the Client in connection with the Services or which has been obtained from any third party by the company) shall at all times remain vested in the company.
7.1 The Client undertakes:- 7.1.1 that it shall not (without the prior written consent of the company) re-use copy reproduce publish or transmit the Information (or any part thereof) in any manner whatsoever.
7.1.2 that it shall not disclose communicate or make available the Information or any confidential information (as defined hereunder) to any third party Provided always that the Client shall be permitted to disclose the Information to any User and/or Bureau specified in this Agreement solely in accordance with Clause 8.4 hereunder.
7.2 For the purposes of sub-clause 7.1.2 hereof the expression “confidential information” shall mean (as the context may require).
7.2.1 any information concerning the company’s trade secrets or business dealing transactions or affairs which may come to the notice of the Client.
7.2.2 any information or know-how relating to the methods or techniques used by the company in devising and developing the Services and any tapes documents or other materials comprising any part of such information and/or know-how made available by the company hereunder.
7.3 The provisions of sub-clause 7.2 hereof shall not apply to any confidential information to the extent that the Client is required to divulge the same by a Court tribunal or governmental authority with competent jurisdiction.
8.1 If the Client has ordered single use of the Information it shall use the Information once only and within 3 months of being supplied by the company. If the Client has ordered multiple use of the Information the Client may use the Information an unlimited amount of times within 12 months of being supplied by the company. Irrespective of single or multiple use the Client shall only use the Information for the purpose specified to the company in accordance with sub-clause 8.2 hereunder Provided that the Client shall be entitled to use the Information subsequently in respect only of those individuals and/or businesses which become bona fide customers of the Client as a result of a mailing carried out using the Information and in accordance with this Agreement.
8.2 It is a condition of the provision of the Services that prior to such provision the Client shall specify in writing to the company the full name and address of the User and the Bureau and such information concerning such User and Bureau as the company shall reasonably require together with the estimated date upon which the Information is intended for use and the purposes of such use.
8.3 A reasonable time prior to such use the Client shall provide to the company a sample of all promotional material to be delivered to any and all names and addresses included within the Information and the Client further expressly agrees that it shall not send out any promotional material if so required by the company.
8.4 Subject always to sub-clause 8.1 above the Client may use the Information for the bona fide business purposes of the User and may provide the Information to the User and/or Bureau solely for such purposes to be carried out but the Client shall procure that the User and the Bureau shall (where the context so admits) fully comply with the obligations of the Client under this Agreement as if they were each a party hereto (without limitation including the provisions of Clause 7.1 hereof) and shall supply the User and Bureau with a copy of these terms and conditions.
8.5 The Information will contain a number of check names and addresses in order to monitor the usage and to ensure that the Information is used in accordance with this Agreement.
8.6 The Client agrees that (and shall procure that the User and/or Bureau shall agree that) the company shall be entitled to publicize or disclose to third parties the existence of or the outline of the subject matter of this Agreement.
8.6.1 Where the Information is used in contravention of the provisions of the Agreement the Client shall be liable to pay the company a sum equivalent to the value of the Charges on each occasion that the Information is so used which sum shall be payable in accordance with the provisions of Clause 4.2 above.
8.6.2 Client expressly agrees and acknowledges that the provisions of sub-clause 8.6.1 above shall operate by way of liquidated damages and are a genuine pre-estimate of the company’s loss in such circumstances.
8.7 All computer tapes must be returned to the address specified on the tape within one month of completion of the mailing.
9. LIMITATION OF LIABILITY
9.1 While all reasonable endeavours will be made to provide the Services in accordance with any delivery dates or manner specified and to ensure that the Information is accurate the company does not warrant the accuracy or fitness for any particular purpose of the Information (or any part thereof) and nor does it warrant or guarantee the results of any mailing and the company shall not be liable to the Client for any loss damage costs or expenses suffered or incurred by the Client (and/or the User and/or the Bureau) by reason of the Services not being provided on the said dates or the said manner or any Information being inaccurate or in the event of any defect in or failure of any mailing.
9.2 Without prejudice to any other provision contained in this Agreement.
9.2.1 The company shall not be liable (whether in contract or in negligence or other tort or otherwise) for any indirect or consequential loss of any kind whatsoever (including without limitation loss of profit or loss of business) suffered by the Client (and/or the User and/or the Bureau) as a result of or arising out of the use of the Services or otherwise in connection with this Agreement.
9.2.2 The company’s maximum aggregate liability hereunder whether for breach of this Agreement or otherwise and whether or not arising from the negligence of the company or any other person involved directly or indirectly in the provision of the Services shall not exceed an amount equal to the Charges (exclusive of VAT) payable to the company hereunder in respect of the particular mailing the subject of such breach or other claim.
9.3 The provisions of sub-clauses 9.1 and 9.2 above shall not apply to any liability in respect of death or personal injury arising out of the negligence of the company its servants or agents.
9.4 The Client hereby expressly agrees that time shall not be of the essence in relation to the companys obligations under this Agreement and that upon leaving the premises of the company the Media shall be at the risk of the Client.
10.1The Client shall indemnify and keep indemnified the company from and against any and all liability loss claims demands costs or expenses of any kind whatsoever which it shall at any time suffer or incur.
11. STATUTORY REQUIREMENTS
11.1 The Client undertakes that it shall not use the Information for any unlawful purpose and that at all times it shall comply fully with all relevant statutory requirements and regulations from time to time in force (including without limitation the provisions of the Data Protection Act 1984 and 1998 in so far as the provisions are applicable).
11.2 The Client undertakes to work within all of the relevant codes of practice for the advertising industry including without limitation. “The British Code of Advertising Practice”, “The British Code of Sales Promotion Practice” and “The Advertising Associations “Standards of Practice” in List and Database Management (as such codes are amended and re-drafted from time to time).
12. EXCLUSION OF WARRANTIES AND REPRESENTATIONS
Save as expressly provided in this Agreement or to the extent that it is unlawful for any said representations, terms, warranties or conditions to be excluded the company makes or includes no representations, terms, warranties or conditions (whether express or implied (by statute or otherwise) in connection with the Services or use thereof by the Client and/or User and/or Bureau or otherwise in connection with the Agreement).
13.1 The company shall be entitled to terminate this Agreement immediately by written notice to the Client if:-
13.1.1 The Client is guilty of any material breach of the provisions of this Agreement.
13.1.2 The Client has had a bankruptcy order made against it or has made an arrangement or composition with its creditors or (being a body corporate) has had convened a meeting of creditors (whether formal or informal)or has entered into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation or has a receiver manager administrator or administrative receiver appointed of its undertaking or any part thereof or a resolution has been passed or a petition presented to any Court for the winding-up of the Client or for the granting of an administration order in respect of the Client or any proceedings have been commenced relating to the insolvency of the Client
13.2 The termination of this Agreement shall be without prejudice to the rights of the company accrued prior to such termination or any provision which by its terms is intended to survive the termination of this Agreement (including without limitation Clause 6 and Clause 9 hereof).
14. FORCE MAJEURE
14.1 Not withstanding anything herein contained neither party shall be under any liability to the other in respect of any failure to perform or delay in performing any of its obligations hereunder which is due to any cause of whatsoever nature beyond its reasonable control and no such failure or delay shall be deemed for any purpose to be a breach of this Agreement.
15. ASSIGNMENT AND SUB-CONTRACTING
15.1The rights granted to the Client hereunder are personal to it and the Client shall not assign or grant any rights in respect of or otherwise deal in the same THe company shall be entitled to assign or sub-contract the provision of the Services (or any part thereof) to any third party and reference in the terms and conditions to the company shall be deemed to include reference to such assignee or sub-contractor.
Failure or delay by either party to enforce any of the provisions of this Agreement shall not operate as a waiver of any of its rights hereunder or operate so as to bar the exercise or enforcement thereof at any time or time.
This Agreement constitutes the whole of the terms agreed between the parties hereto in respect of the subject matter hereof and supersedes all previous negotiations understandings or representations and shall be capable of being varied only by an instrument in writing signed by a duly authorised representative of each of the parties hereto.
This Agreement is severable in that if any provision hereof is determined to be illegal or unenforceable by any Court of competent jurisdiction such provision shall be deemed to have been deleted without affecting the remaining provisions of this Agreement.
19. Cancellation,Change,Closure or Disposal of Business
19.1 No cancellations will be accepted after instructions to commence output have been issued by The company. In the event that the company accepts cancellation of this order 75% of the order value will be payable by the Buyer.
19.2 The buyer hereby agrees that this contract cannot be cancelled and in the event of a closure, change of location or change in style or nature of the business this agreement shall still continue and all liabilities hereunder shall accrue to the advertiser.
19.3 The buyer hereby agrees that in the event of the disposal of the business the agreement shall continue and the advertiser will endeavour to pass on the terms, obligations and liabilities to any purchaser or successor in the title, in the event the buyer does not procure such agreement, the liabilities under this agreement shall continue to accrue to the advertiser.
20. The Services.
20.1 The quantity and the description of the services shall be as set out in the Contract Order form and pro-forma invoice. 20.2 The Company warrants that the services will at the time of delivery correspond to the description given by the Company, either verbally or by means such as order forms, invoices etc.
20.3 The Company shall not be liable for any loss or damage (including but not limited to consequential loss or damage) arising from the use of the services.
20.4 By signing the contract order form, clicking submit on an online order form, or receipt of an email to proceed, the client and The Company shall both be bound these the Terms and Conditions of which are displayed on the companies web site.
21.1 It is always the policy of the Company to develop and improve its services. The Company, therefore, reserves the right to make any improvements to the designs and specifications of the services.
21.2 Nothing in this Agreement shall confer, nor do the parties intend it to confer, any enforceable right on any third party and the Contracts (Rights of Third Parties) Act 1999 shall not apply.
21.3 This Contract shall be governed by the Laws of England and the parties submit to the exclusive jurisdiction of the English Courts in relation to any dispute hereunder.
21.4 The start date of the contract held between the buyer and the company is when the order form is signed by the buyer.
22. Trade Monopolies
The company retains the right to accept contracts from a similar business trade occupation or profession to that of the client.
a) Any notices required to be given, hereunder shall be deemed effectively served if sent through the post, in the case of the client to the last known place of business abode or its registered office. In the case of the company when sent by RECORDED delivery to:
BMS DATA SERVICES.
BMS Marketing Services Ltd,
Unit 31 Moorlands Business Centre,
(b) By interpretation this contract is deemed confirmed at the company’s place of business