List Rental Terms and Conditions
“the list Owner” means the Owner of the List
“the list Manager ” means Canopy Media Management Ltd
“the Client” means the organisation or persons placing the order for the Advertisement to the List whether they are the advertiser of the product or service referred to in the Advertisement or the advertising agency or media buyer for such advertiser
1. Application of Terms
1.1 The Contract for the hire of the List between the List Manager and the Client is on these terms and conditions to the exclusion of all other terms and conditions (including any terms and conditions which the client purports to apply under any purchase order, confirmation of order, specification or other document.
1.2 No terms and conditions endorsed upon, delivered with or contained in the Client’s purchase order, confirmation of order, specification of other document will form part of the contract.
2. Warranties
The Owner has warranted to the List Manager that it is the legal owner of all rights and title in the List and that all data in the List has been lawfully obtained including the offer of opt out and opt-in where appropriate. The Owner has warranted that it is registered in accordance with the Data Protection Act 1998 and that requests for suppression or subject access for amendments to the File are made by the Owner within 30 days of receipt. The Owner has warranted to the List Manager that where necessary the List has been cleaned in accordance with the mailing preference service.
3. Intellectual Property
The Client acknowledges that the List Owner owns the copyright in the List, data contained on disk, email or FTP site and all other materials supplied by the List Owner on behalf of the Owner shall at all times remain the property of the Owner. The Client agrees that no Intellectual Property Rights in the List or the information contained within it (including but not limited to copyright and rights of confidence) are transferred or licensed to the Client save as may be expressly provided in these Terms and Conditions.
4. Supply of the Service
The Client shall supply to the List Manager two representative examples of items intended to be mailed and the List Manager shall submit those examples to the List Owner for its approval.
The List Owner shall have absolute discretion in deciding whether or not to provide the List for the proposed mailing and the List Owner shall not be under any obligation to give any reason for its refusal. When the List Owner provides to the List Manager its consent to supply the List for the proposed mailing will the Client’s order be deemed to have been accepted. The Client shall be responsible for the costs and expenses of delivering the List to the Client. Delivery shall be deemed to have taken place when the password that is attached to each order is received by the Client. The List Manager shall use reasonable endeavours to provide the List within the time quoted but the List Manager does not warrant that it will meet any dates for delivery specified by the Client and time shall not be of the essence of the Contract. The List will include a small percentage of seed names (unique names and addresses) so as to enable the Owner to monitor and verity usage of the List The numbers of names and addresses included in the List are approximate only. No information will be given concerning postal regulations and the Client should refer to the Royal Mail Guide.
5. Use of the List
The Client shall be entitled to use the List once only within 3 months of the date of order for the specific mailing that has been agreed by the List Manager. The Client must not make the List available to any third party directly or indirectly and must not incorporate the List into or use it in order to produce or develop any other product or service or to use it for any other mailing purposes. The Client may not record or retain the List or any part of the List for any purpose other than the mailing that has been approved by the List Manager and the List Owner. The List may not be used for telephoning or any other activity other than the one mailing that has been approved by the List Manager. The Client shall not make any reference to the list source or data characteristics in any mailing. The Client warrants that the mailing will not include any items which infringe the Intellectual Property Rights of any third party or is defamatory, obscene, indecent or otherwise illegal or unlawful. If requested, the Client will return to the List Manager a signed List User’s warranty. The Client shall at all times comply with the Data Protection Act 1998 and all subsequent legislation and the Client will also comply with the best working practices of the industry as set out in the Guidelines and Codes of Practice of the British List Brokers Association, the British Direct Marketing Association, the Direct Mail Producers Association, and all other self regulatory organisations.
6. Price and Payment
The Client will pay to the List Manager the rental charge for the use of the List in accordance with the List Manager’s rental rates as applied at the time of the acceptance of the Client’s order.
The List Manager shall be entitled to make additional charges for:-
6.1. limited or additional selections from the List; any work undertaken by the List Manager at the Client’s request which shall be agreed in writing before the work is undertaken; more than one use of the List; delivery charges. The Client shall pay to the List Manager any VAT properly chargeable on the supply by the List Manager of the List. No payment shall be deemed to have been received until the List Manager has received clear funds. If any payment is overdue the Client shall pay to the List Manager interest on the overdue amount at the rate of 5% above HSBC plc 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 Client will not receive any further lists from the List Manager until full payment has been received.
7. Termination
The List Manager may terminate these Terms and Conditions immediately by notice if:-
7.1. The Client uses the List for a purpose not expressly permitted by the List Manager;
7.2. The Client breaches any other provision of these Terms and Conditions;
7.3. The Client fails to give instructions for delivery or collection of the List;
7.4. In the event of a Receiver being appointed over the whole or any part of the assets of the undertaking of the Client or a winding up order is made against the Client or the Client goes into liquidation or makes any arrangement with its creditors or commits any act of bankruptcy. On termination for whatever reason, all rights of the Client shall cease immediately and the Client shall pay all outstanding sums due to the List Manager including all costs, charges or expenses (both direct and consequential) incurred by the List Manager by reason of such cancellation.
8. Limitation of Liability
The Client acknowledges that the vast majority of the information contained in the List is provided to the List Owner by third parties over whom the List Owner has no control, in particular in relation to the accuracy or completeness of such information. The Client agrees:- that the List Owner and the List Manager are not in any circumstances liable for any loss or damage at all arising from any inaccuracies, faults in, or omissions from or otherwise from the provision of the List unless caused by the Owner’s negligence or wilful default; and the List Owner and the List Manager shall not in any circumstances (including without limitation if the List Owner or the List Manager has been negligent or in breach of statutory duty) be liable for any loss of business, capital, profit, reputation or goodwill arising out of or in connection with these Terms and Conditions or the subject matter or any indirect or consequential loss or damage at all. The entire liability of the List Owner and the List Manager to the Client in respect of all claims arising out of or in connection with the supply of the List or its subject matter (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 provision of the List. The List Owner nor the List Manager limits or excludes its liability for death or personal injury arising from its negligence. Except as expressly provided in these Terms and Conditions all representations, conditions and warranties, whether express or implied (by statute or otherwise) are hereby excluded to the fullest extent permitted by law. The Client shall indemnify the List Manager and the List Owner against any loss, damage, cost or expense (including reasonable legal costs on an indemnity basis) which the List Manager and the List Owner incur, suffer or become liable for as a result of its breach of these Terms and Conditions which results in a claim by any third party against the List Manager or the List Owner.
9. Miscellaneous
9.1. Force majeure – The List Manager shall not be liable to the Client 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 List Manager’s information technology or telecommunications services, failure of a third party (including, without limitation, failure to supply information) and industrial action.
9.2. Assignment – The Client may not transfer or in any other way make over to any third party the benefit of these Terms and Conditions without the List Manager’s express prior written consent.
9.3. 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.
9.4. Entire agreement - These Terms and Conditions constitutes the entire agreement between the parties and supersedes all oral or written agreements, representations, understandings or arrangements, relating to its subject matter. The Client agrees that the List Manager shall not be liable in respect of any warranty or misrepresentation and the Licensee waives any right it may have to rescind these Terms and Conditions by virtue of any misrepresentation, unless in either case the List Manager made it fraudulently.
9.5. Variation – These Terms and Conditions may not be amended, modified, varied or supplemented except in writing signed by both parties.
9.6. Notices - Notices under these Terms and Conditions shall be in writing and sent to the List Manager’s registered office from time to time or to the Licensee’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.
9.7. Governing law – These Terms and Conditions shall be governed by English law. The parties hereby submit to the exclusive jurisdiction of the English Courts, save that the List Manager may take proceedings outside England and Wales to enforce any judgement or court order.
