Insert Terms and Conditions
1. Definitions
1.1 In these conditions the following words have the following meanings:-
“the Appointor” means the organisation distributing certain items to individuals and organisations by post;
“the Customer” means the organisation requesting inclusion of Inserts in the Appointor’s mailing;
“Inserts” means advertising and promotional material which the Customer wishes to be sent out by the Appointor;
“Order Confirmation” means Canopy’s confirmation of the order received from the Customer for Inserts to be distributed by the Appointor specifying the price to be paid by the Customer;
“Canopy” means Canopy Media Management Limited;
2. Application of Terms
2.1 Contract for the dispatch of Inserts between the Customer and Canopy is on these Terms and Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 No terms or conditions endorsed upon, delivered with or contained in the Customer’s purchase order, confirmation of order, specification or other document will form part of the Contract.
2.3 These conditions apply to all Inserts negotiated by Canopy and any variation to these Conditions shall have no effect unless expressly agreed in writing.
3. Inserts
3.1 The Customer shall supply to Canopy one representative example of the items intended to be the Inserts and Canopy shall submit the representative example to the Appointor for approval.
3.2 The Appointor and Canopy shall have absolute discretion in deciding whether or not to accept the proposed Inserts for mailing and the Appointor and Canopy shall not be under any obligation to give any reason for refusal.
3.3 The Customer shall be responsible for the costs and expenses of delivering the Inserts to the Appointor’s warehouse.
3.4 The Customer will make every effort to ensure that only those Inserts are delivered to the Appointor’s warehouse that can be inserted during the current and next inserting cycle.
3.5 The Customer will ensure that the Inserts are packaged in accordance with the Appointor’s instructions.
3.6 Any extra costs incurred at the Appointor’s warehouse in order to enable the Appointor’s warehouse to insert the Inserts will be borne by the Customer.
3.7 Canopy will procure that the Appointor uses its reasonable endeavours to ensure that all Inserts are dispatched on the agreed dates.
4. Customer’s Warranties
4.1 The Customer hereby undertakes to Canopy and the Appointor that any advertising copy included in the Inserts will comply with all relevant statutory provisions and regulations, and any other relevant legislation and with the British Code of Advertising Practice and that none of the Inserts concerned infringe the copyright, patents or trademarks of another person.
4.2 The Customer undertakes that none of the material in the Inserts contains matter which is of an illegal or libellous nature nor infringes the property rights of any third party and the Customer shall indemnify and keep indemnified Canopy and the Appointor indemnified against all direct, indirect or consequential liabilities (including without limitation, loss of profit, loss of business, depletion of goodwill and like loss), costs and expenses (including legal and other professional fees and expenses), loss, damages, injury and costs arising out of the Customer’s breach of contract, liability in tort or infringement of copyright, patent, design or any other proprietary or personal rights contained in any of the material in the Inserts.
5. Price and Payment
5.1 The Customer will pay to Canopy the price for dispatch of the Inserts in accordance with Canopy’s Insert rates as applying at the time of acceptance of the Order Confirmation.
5.2 Unless otherwise agreed in writing prior to dispatch of the Inserts, if the Customer delivers to Canopy or the Appointor more than the number of Inserts specified in the Order Confirmation and the Appointor distributes such additional Inserts as part of the distribution programme the Customer agrees that it will pay for the distribution of those additional Inserts at the same gross rate per thousand as agreed in the Order Confirmation. The Appointor’s dispatch count will be conclusive evidence of the number of Inserts completed.
5.3 Prices are subject to increase at any time. In the event of a price increase within one month of notice of such price increase from Canopy the Customer may either cancel the Contract and pay for the number of Inserts completed by Canopy at the date they receive notice of cancellation or the Contract will continue at the revised increased rates.
5.4 Except in the circumstances set out in clause 5.3 if the Customer gives notice of cancellation to Canopy the following charges shall be due and payable :-
5.4.1 If notice of cancellation is given to Canopy by the Customer in writing less than two months’ prior to the agreed date of insertion of the Inserts the Customer will pay immediately to Canopy 50% of the price specified in the Order Confirmation subject to Canopy agreeing to accept such notice of cancellation which shall be entirely at Canopy’s sole discretion;
5.4.2 If notice of cancellation is given to Canopy by the Customer in writing between two and six months prior to the agreed date of insertion of the Inserts the Customer will pay immediately to Canopy 25% of the price specified in the Order Confirmation.
5.4.3 If notice of cancellation is given to Canopy by the Customer in writing six months or more prior to the agreed date of insertion of the Inserts the Customer will pay immediately to Canopy10% of the price specified in the Order Confirmation.
5.5 The Customer shall pay to Canopy any VAT properly chargeable.
5.6 No payment shall be deemed to have been received until Canopy has received cleared funds.
5.7 If any payment is overdue the Customer shall pay to Canopy interest on the overdue amount at the rate of 5% above HSBC plc’s base rate from time to time from the due date until the date of payment. Such interest shall accrue on a daily basis and the Customer will not be entitled to have any further Inserts dispatched until full payment has been received.
6. Limitation of Liability
6.1 Canopy and the Appointor shall not be responsible:-
6.1.1 for any loss arising from any error in the insertion of or any omission to insert any Insert;
6.1.2 for any damage to or loss of the materials supplied by the Customer or any third party;
6.1.3 shall not be liable for any loss or circulation or ineffectiveness of any advertising programme or any other loss (save for death or personal injury caused by the Appointor’s negligence or Canopy’s negligence) howsoever arising.
6.2 The Customer acknowledges that it should maintain suitable insurance cover in respect of such risks.
6.3 Canopy and the Appointor reserve the right to withdraw any of their proposed mailings without notice and no liability shall attach itself to the Appointor or Canopy in respect of any costs, losses, damages or other liabilities arising out of such withdrawal.
6.4 The entire liability of the Appointor and Canopy to the Customer in respect of all claims arising out of or in connection with the acceptance and dispatch of the Inserts (whether for breach of contract, negligence under statute or otherwise or at all) shall be limited to an amount equal to the price paid for the dispatch of the Inserts.
6.5 Neither Canopy nor the Appointor limits or excludes liability for death or personal injury arising from its negligence.
6.6 Except as expressly provided in these Terms and Conditions all representations, conditions and warranties, whether expressed or implied (by statute or otherwise) are hereby excluded to the fullest extent permitted by law.
6.7 If any provision of this condition 6.7 is or becomes invalid or unenforceable it shall be severed from the rest of these Terms and Conditions. No other provision in these Terms and Conditions shall be rendered invalid or unenforceable or be otherwise affected.
7. Miscellaneous
7.1 Force majeure – Canopy shall not be liable to the Customer for any delay in or failure of performance of its obligations under these Terms and Conditions arising from any cause beyond its reasonable control including, without limitation: act of God, governmental act, war, fire, flood, explosion, civil commotion, failure of the Canopy’s information technology or telecommunications services, failure of a third party (including, without limitation, failure to supply information) and industrial action.
7.2 Assignment – The Customer may not transfer or in any other way make over to any third party the benefit of these Terms and Conditions without Canopy’s express prior written consent.
7.3 Waiver - Failure by either party to exercise or enforce any rights, or the giving of any forbearance, delay or indulgence, will not be construed as a waiver of those rights.
7.4 Entire agreement - These Terms and Conditions constitute the entire agreement between the parties and supersedes all oral or written agreements, representations, understandings or arrangements, relating to its subject matter. The Customer agrees that Canopy shall not be liable in respect of any warranty or misrepresentation and the Customer waives any right it may have to rescind these Terms and Conditions by virtue of any misrepresentation, unless in either case Canopy made it fraudulently.
7.5 Variation – These Terms and Conditions may not be amended, modified, varied or supplemented except in writing signed by both parties.
7.6 Notices - Notices under these Terms and Conditions shall be in writing and sent to Canopy’s registered office from time to time or to the Customer’s address appearing overleaf (or such other address in the United Kingdom as the intended recipient may notify to the other in accordance with this clause) and may be sent by first class mail. Correctly addressed notices sent by first class mail shall be deemed to be delivered 2 days (excluding Saturdays, Sundays and bank and public holidays) after posting.
7.7 Governing law – These Terms and Conditions shall be governed by English law. The parties hereby submit to the exclusive jurisdiction of the English Courts.
