1. Contract Overview
- All email data collected for third party marketing communications has been lawfully obtained and is compliant with The Privacy and Electronic Communications (EC Directive) Regulations (2003).
- All the private individuals whose names are included in the List Owner's database have been given adequate opportunity to object to the use of their data for third party marketing communications. The names of those private individuals who have objected to such use have been deleted from the Opt-in email list within 48hrs of the private individuals' request
- All list sources must send emails with a header and/or footer that clearly identifies the sender and provides an unsubscribe link for removal. All emails will be sent prior to going live showing the templates for mailings to see how an email would be received.
- The source(s) of all data must be checked for compliance with above rules by network or aggregator. It is understood that under NDA's, sources cannot be disclosed up front, though for complaints or queries, original opt-in source will be provided to DMLS LTD or direct to consumer within 72hrs. Standard 48hrs notice to pause campaigns.
- The list owner, network or manager will be liable to handle any complaints or queries related to data provenance or permissions. If a representing agency or network for the list owner, you confirm hereby that you have proper legal right to use data on their behalf.
- DMLS LTD reserves the right to withhold payment for campaigns where any of the above conditions or others specified in campaign sign-off, have not been met by the List Owner.
2. Definitions and Interpretation
- The following definitions apply in these terms and conditions:
"Additional Services" means any product and/or service requested by the Client other than the supply of Data.
"Agreement" means any agreement between DMLS Ltd and the Client for the sale and supply of Services comprised in an IO and incorporating these terms and conditions.
"Client" means any person, firm or company who places a IO with DMLS Ltd.
"Data" means any data to be supplied by DMLS Ltd, as comprised in an IO.
"DMLS Ltd" means Digital Marketing Lead Solutions Ltd.
"Due Date" means the final date for payment of DMLS Ltd's invoice which shall be set out on the IO.
"IO" means an insertion order placed by the Client for Services to be performed by DMLS Ltd in the form supplied by DMLS Ltd.
"Licence" means any licence granted to the Client by DMLS pursuant to the Agreement.
"Price" means the amount payable for the Services.
"Services" means the services set out in the IO (and shall include, where applicable, Additional Services).
- 2.2 Any reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
- 2.3 Words in the singular include the plural and in the plural include the singular.
3. Application of terms and conditions
- 3.1 These terms and conditions shall apply to all Services undertaken by DMLS Ltd.
- 3.2 The Agreement shall be deemed to include these terms and conditions only, to the exclusion of any others, but subject to any variation under clause 3.4.
- 3.3 No terms and conditions contained in, delivered with or otherwise communicated to DMLS Ltd by the Client shall form part of the Agreement unless agreed pursuant to clause 3.4.
- 3.4 Any variation to these terms and conditions must be expressly agreed by in writing. The Client acknowledges that it has not relied on any statement, representation or promise made by on behalf of DMLS Ltd which is not set out in the Agreement. Nothing in this clause shall exclude or limit DMLS Ltd's liability for fraudulent misrepresentation.
4. Your IO and description of Data
- 4.1 Services requested by the Client shall be deemed an offer by the Client to purchase the Services and shall not constitute a binding agreement. Such offer shall be capable of acceptance in whole or in part at DMLS Ltd's discretion.
- 4.2 An Agreement shall be formed on acceptance of the IO by DMLS Ltd which shall be on receipt of the IO signed by the Client.
- 4.3 The quantity and scope of the Services shall be as set out in the IO. DMLS Ltd shall not be obliged to provide any Service not specified in the IO.
- 4.4 DMLS Ltd grants the Client a non-exclusive, non-transferable, non-sublicensable worldwide licence to use the Data once only. The Client shall not be permitted to make any copies of the Data.
5 Obligations of DMLS Ltd
- 5.1 DMLS Ltd will use reasonable endeavours to source and/or supply the Data and/or provide the Services within any timeframe specified on the IO but the Client acknowledges that time shall not be of the essence for this purpose.
- 5.2 DMLS Ltd will make the Data available via the medium agreed between the parties on the IO. If, due to circumstances outside of its control, DMLS Ltd. is unable to do this, the Client shall provide alternative instructions at the request of DMLS Ltd.
- 6.1 Data is deemed delivered when it is made available to the Client or any authorised agent of the Client by the method agreed in the IO. If for any reason the Client fails to take actual possession when it is made available, or DMLS Ltd is unable to make it available because the Client has provided inappropriate or inaccurate instructions, the Data shall still be deemed to have been delivered.
- 6.2 DMLS Ltd reserves the right to deliver the Data in instalments and where possible shall notify the Client of such intention. Each instalment shall be a separate Agreement and no cancellation or termination of any one instalment shall entitle the Client to cancel or terminate any other instalment or Agreement.
- 6.3 Any dates for delivery of the Data specified by DMLS Ltd are intended to be an estimate only and time for delivery shall not be made of the essence. The Client acknowledges that, in the performance expected of DMLS Ltd of its rights and obligations under the Agreement, no regard has been given to any specified date for delivery.
- Risk in the Data shall pass to the Client from the time of delivery or deemed delivery.
8 Prices and Payment
- 8.1 The Price shall be that quoted on the IO.
- 8.2 The Price and all other sums referred to in this Agreement are expressed exclusive of any value added tax, insurance and any other charges that may occur. The Client shall pay any such costs, taxes or charges in addition to the Price which shall be included in DMLS Ltd's invoice. The Client will be informed of any such charges at the time of submitting an IO.
- 8.3 The Price shall be paid in full in pounds sterling by the Due Date unless otherwise agreed by DMLS Ltd in writing. Under no circumstances shall the Client withhold payment for any reason including (but not limited to) set-off, counterclaim or deduction.
- 8.4 Time for payment shall be of the essence.
- 8.5 If the Price is not paid in full by the Due Date, the Client shall be liable to pay interest to DMLS Ltd on all outstanding sums from the Due Date at an annual rate of 4% above the base rate from time to time of National Westminater Bank Plc (or other UK clearing bank as may be notified to the Client by DMLS Ltd) accruing on a daily basis until payment is made, whether before or after any judgment.
- 8.6 DMLS Ltd additionally reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
- 8.7 DMLS Ltd reserves the right to withhold further provision of Services comprised in this or any other Agreements where any payment due from the Client is overdue.
9. Limitation of liability
- 9.1 The financial liability of DMLS Ltd in respect of any loss arising out of:
- 9.1.1 any breach of these conditions; and/or
- 9.1.2 any use or resale of the Data by the Client ; and/or
- 9.1.3 any representation, act or omission including negligence arising under or in connection with the Agreement is limited to the Price.
- 9.2 DMLS Ltd shall not be liable to the Client for any claims for indirect or consequential compensation whatsoever including but not limited to loss of profit and loss of goodwill, which arise out of or in connection with the Agreement.
- 9.3 Nothing in this clause 8 shall exclude or limit any liability for:
- 9.3.1 death or personal injury caused as result of DMLS Ltd's negligence; or
- 9.3.2 any matter which it would be illegal for DMLS Ltd to exclude; or
- 9.3.3 for fraud or fraudulent misrepresentation
10 Additional Services
- 10.1 Where the Client requests Additional Services, the Client acknowledges that terms of invoicing and/or payment may be different from such terms provided to the Client in respect of any other Services requested. Where this is the case, DMLS Ltd will notify the Client at the time of placing the order and the new payment terms shall be set out on the IO.
- 10.2 No other provisions of this Agreement shall be affected by the operation of clause
11 Term and Termination
- 11.1 Save where otherwise indicated, the terms of this Agreement will expire following payment in full of the Price.
- 11.2 DMLS Ltd may, by immediate notice in writing to the Client, terminate this Agreement if any of the following events shall occur:
- 11.2.1 any part of the Price and/or any other sums due to DMLS Ltd are not paid by the Due Date;
- 11.2.2 the Client is in breach of any other obligation under this Agreement;
- 11.2.3 the Client, being a body corporate, convenes a meeting of its creditors or to pass a resolution for voluntary winding up; presents a petition or has a petition presented by a creditor for its winding up; ceases or threatens to cease to carry on business; goes into liquidation (other than for the purposes of a bona fide reconstruction or amalgamation); has an administrative receiver or receiver and manager or administrator appointed for it or its assets; enters into a voluntary arrangement with its creditors; suffers any similar insolvency process or process which affords it protection from its creditors; or is deemed by relevant statutory provisions to be unable to pay its debts; or
- 11.2.4 the Client does anything which brings DMLS Ltd into disrepute, including but not limited to committing a breach of the terms of any Licence granted to it by DMLS Ltd.
- 11.3 Where DMLS Ltd terminates this Agreement pursuant to clause 11.2 the Client’s right to any Licence shall automatically terminate.
- 11.4 Upon termination, the Client shall immediately:
- 11.4.1 pay all outstanding sums due to DMLS Ltd, under this Agreement or otherwise; and
- 11.4.2 cease all further use of the Data and return to DMLS Ltd or destroy any copies of the Data.
12 DMLS Ltd Warranties
- 12.1 DMLS Ltd will endeavour to provide the Services with the level of skill and care that could reasonably be expected in accordance with the standards of usual commercial practice.
- 12.2 DMLS Ltd excludes all warranties as to the quality, accuracy, performance or fitness for a particular purpose of any Service.
- 12.3 DMLS Ltd shall not be liable to the Client for any damage for any loss or damage whatsoever or howsoever caused whether direct, indirect, consequential or economic loss (including loss of profit, business, revenue, goodwill or anticipated savings or other economic loss or damage) arising from:
- 12.3.1 any inaccuracy of or errors or defects in the whole or any part of the Data or any use of or reliance upon any of them, in whole or in part, and, in particular (but without prejudice to the general nature of the foregoing); or
- 12.3.2 late or non-performance of the Services; or
- 12.3.3 negligence on the part of DMLS Ltd, its employees and/or representatives; or
- 12.3.4 otherwise, except to the extent to which it is unlawful to exclude any such liability under any applicable law.
- 12.4 In the event that any exclusion or limitation of liability contained in this Agreement shall beheld to be invalid for any reason and DMLS Ltd becomes liable to the Client for loss or damage that may lawfully be limited, such liability shall be limited to the level of the Fees paid by the Client in the preceding 12 months.
- 12.5 Notwithstanding any other provision within this Agreement, DMLS Ltd does not (nor does it seek to) exclude or limit in any way its liability for death or personal injury caused as a result of the negligence of DMLS Ltd or its employees, agents or authorised representatives.
13 Client Warranties
- 13.1 The Client warrants that:
- 13.1.1 it shall use the Data in accordance with the licence provision contained in clause 4.4.
- 13.1.2 it shall comply with the Data Protection Act and all other relevant laws and regulations concerning its use and storage of the Data;
- 13.1.3 it will not make or permit to be made any copies of the Data without the prior consent of DMLS Ltd, acknowledging that where DMLS Ltd has not itself generated the Data, it may only consent to the extent permitted by its own licence arrangements;
14 Force Majeure
- DMLS Ltd reserves the right to defer the date of delivery or cancel any Agreement or reduce the volume of the Data ordered by the Client (without liability to the Client ) if, due to circumstances beyond its control, it is delayed or prevented from carrying out its obligations under the Agreement. Such circumstances include (but are not limited to) acts of God, government actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials provided that, if the event in question continues for a period of 56 days, the Client shall be entitled to give notice to DMLS Ltd terminating the Agreement.
15 No Waiver
- 15.1 Failure to or delay by DMLS Ltd in enforcing any of or some only of its rights under the Agreement shall not constitute a waiver of such rights.
- 15.2 Any waiver by DMLS Ltd of any breach of Agreement or default shall not constitute a waiver of any subsequent breach or default.
- If any provision of the Agreement is found to be in whole or in part void, illegal and/or unenforceable by a court, tribunal or body of competent jurisdiction, it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or un-reasonableness be deemed severable and the remaining provisions of the Agreement and the remainder of such provision shall continue in full force and effect and if required shall be interpreted to include the original intention of the parties when entering into the Agreement.
17 Data Protection and Processing of Information
- 16.1 The Client acknowledges and agrees that company information (and in the case of sole traders personal information) may be submitted to a credit reference agency to ascertain its creditworthiness.
- 16.2 Where the Services involve the supply of a website by DMLS Ltd from which the Client accesses the Data, DMLS Ltd will use reasonable endeavours to ensure that the website remains uninterrupted and free from viruses.
- Any notices or other communications sent to either party under the Agreement shall be to its registered address for the time being. Notices will not be valid if sent by email.
19 Third Party Rights
- The parties to the Agreement do not intend that any term of the Agreement shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not party to it.
20 Law & Jurisdiction
- The Agreement shall be governed by English Law and the parties submit to the exclusive jurisdiction of the English Courts.