Terms and conditions
CONDITIONS OF TRADING
A. BASIS OF CONTRACT
(I) The following terms and conditions govern all transactions made between you, the customer, and Tudor Distribution Services Limited (and its permitted assigns and/or sub-contractors) (hereafter named as "the Company") except as otherwise specifically agreed in writing by a director of the Company.
(II) The customer's order for services as set out in a purchase order, the customer's acceptance of a quotation provided by the Company or such similar document or conduct shall constitute an offer by the customer to engage the Company for the services as set out in such purchase order or quotation. Such offer shall be made on the basis of these terms and conditions and shall only be deemed accepted when the Company provides written confirmation or clearly accepts the offer by virtue of its conduct.
(III) These terms and conditions apply to the exclusion of any other terms even if those terms are contained in any of the customer's documents which purport to provide that the customer's own terms shall prevail, or which are implied by trade, custom, practice or course of dealing.
(IV) These terms and conditions constitute the entire agreement between the parties. The customer acknowledges that it has not relied upon nor been induced by any promise, representation or statement whether made to it orally or in writing by the Company or an agent of the Company concerning such a transaction that is not set out within these terms and conditions. No agent has the Company's authority to make any representation concerning such a transaction.
B. DISTRIBUTION
(I) The Company shall provide the distribution services in accordance with these terms and conditions.
(II) The customer's order shall be complete and accurate and must specify: (a) the precise area(s) in which distribution is required: (b) the dates on or between which distribution is required; (c) the number of items that are due to be distributed; and (d) in the instances where sub-contractors are employed any additional details which such sub-contractor may reasonably request.
(III) The Company will estimate the quantity of material required to cover the said area and advise the customer accordingly. In making such an estimate, the Company does not imply a100% coverage to the said area, nor can it guarantee distribution to any particular property in that area. The stated distribution objectives and overall quantity distributed are for the Company’s guidance only and the Company will make reasonable endeavours to achieve them. The Company cannot guarantee such objectives.
(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. The customer shall comply with all reasonable requests by the Company or its agents or sub-contractors in relation to any packaging requirements and shall be entitled to charge an administration fee in the event such directions are not complied with. The Company shall be entitled to inspect any items to ensure that they comply with these terms and conditions.
(V) The Company cannot accept responsibility for variances in supply due to packaging errors (i.e. quantities within cartons) or errors which occur due to inaccurate delivery notes, but will endeavour to advise the customer when significant variances arising from such errors are identified. In the event of a delay or error in the quantity of items supplied, distribution will be carried out at the earliest subsequent opportunity.
(VI) The Company has an absolute discretion to refuse to accept, publish or distribute any order, whether paid for or not, in whole or in part without giving its reasons, if it believes the acceptance, publication or distribution of the same could: (a) infringe any law or statutory requirement; (b) infringe the Advertising Standards Authority's British Code of Advertising Practice or the British Code for Sales Promotion Practice or other such code or industry guideline that may apply, as amended from time to time; (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 or any third party whatsoever; (e) be likely to cause embarrassment to the Company or its employees, agents and sub-contractors or will harm, or is likely to harm, the Company's reputation; or (f) be dangerous, including distributing to any property in any area which is considered to be unsafe or undesirable for distributing teams.
(VII) The Company shall not be liable for refusing to accept, publish or deliver any content for the reasons as set out above and the Company shall have the right to make any changes to the services to be provided which are necessary to comply with any applicable law or safety requirement or which do not materially affect the nature or the quality of such services.
(VIII) Unless agreed otherwise between the parties, the Company's services shall not be exclusive to the customer and the Company shall not be restricted in any manner from distributing material for other customers.
C. TIME FOR DISTRIBUTION
(I) 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. The Company may change the delivery schedule at any time, if necessary, by providing notice in writing to the customer.
(II) The Company will endeavour to arrange for the distribution of the said quantities of material in the said area(s) on or about the said dates but cannot guarantee such distribution, and if there is any delay for any cause, whether or not within the Company's control, this shall not be a breach or repudiation of the contract.
(III) The Company shall not be liable to the customer for any loss or damage suffered by the customer arising from late distribution.
D. CANCELLATION
(I) Written notice of at least seven days (prior to the beginning of the distribution week) must be given for any cancellation or alternation to the distribution arrangements other than by a solus distribution. At least fourteen days notice must apply in the case of a solus distribution.
(II) In the event of a cancellation of more than seven days (or fourteen days in relation to a solus distribution) the customer will pay to the Company the following: (a) the costs incurred by the Company in connection with the said order including any costs incurred in connection with the proposed distribution, including, but not limited to, any cancellation fees or charges that any agent or sub-contractor may charge the Company: and (b) 20% of the order price representing an agreed estimate of the Company's loss of profit on the order (such amount shall not restrict the Company in recovering further sum should the Company claim any damages or losses outside of the category of loss of profit).
(III) In the event of a cancellation of seven days or less (or fourteen days or less in relation to a solus distribution) the customer will pay to the Company 100% of the fees due under these terms and conditions.
(IV) For the purposes of these terms and conditions the fees as set out in paragraphs (II) and (III) above shall be deemed "Cancellation Fees".
E. PAYMENT
(I) Every order shall be paid for in full by receipt of cleared funds on the Thursday prior to the week of distribution (the due date), unless otherwise agreed in writing by the Company or its duly authorised agent.
(II) In the case of non payment by the due date the Company shall be entitled to terminate the order without notice and to charge the Cancellation Fee. If funds are not received by the due date the Company has the right at its own discretion, without notice, to postpone, delay or cancel the distribution (and to charge the Cancellation Fee). The Company is not responsible for any liability in respect of the printed matter if distribution has had to be delayed due to cleared funds not being received by the due date.
(III) If the customer disputes the amount of an invoice, the customer shall pay the invoice in full until the dispute is settled. If appropriate, the Company shall then refund any overpayment made by the customer.
(IV) If monies due to the Company under this agreement are not paid on the due date the customer will pay interest on the sum outstanding at four per cent (4%) over the Base Rate from time to time declared by the Barclays Bank Plc from the due date to the date of payment whether before or after judgement.
(V) 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.
(VI) The Company may make reasonable charge for storage of the customer's property if delivered before the date specified in paragraph C (IV) or if for any reason it is not distributed or distribution is delayed.
(VII) 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.
(VIII) 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.
(IX) Unless otherwise stated, the price quoted applies to the distribution of items on behalf of individual advertisers and/or businesses who are promoting their own goods, services, functions, etc. via material specifically printed on their behalf. Unless agreed otherwise the prices quoted do not include the cost of printing.
F. COMPLAINTS
(I) All complaints or claims must be notified to the Sales Manager or Sales Director of the Company within seven days of the relevant distribution date(s) in order to enable a more thorough investigation to take place. Such complaints should be accompanied with supporting evidence to uphold such complaint or claim.
(II) In the event of a complaint of non-distribution 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 re-imburse 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.
G. FORCE MAJEURE
The Company will not be liable to the customer for any 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 force majeure, Act of God, failure to perform by third parties, fire, explosion, flood, storm, accident, strikes, lock-outs or other industrial dispute (whether involving the workforce of the Company or any other party), failure of a utility service or transport network, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, breakdown of machinery or default of suppliers or sub-contractors .
H. RISK AND INSURANCE
The customer shall, at all times, be responsible for the insurance of any materials, whether for distribution or otherwise in possession of the Company or its agents. Such materials are at all times at the risk of the customer.
I. LIMITATION OF LIABILITY
(I) Except as provided herein the Company shall be under no liability whatsoever to the customer in regard to the service provided pursuant to the order and any condition 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. The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from these terms and conditions.
(II) The Company will be responsible for damage to property if such damage is caused directly by the Company's negligence or of any person for 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) The Company shall in no circumstances be liable to the Customer or to any other party whether in negligence, tort, contract, breach of statutory duty or otherwise for financial, consequential, special or indirect loss however arising (including without prejudice to the generality of the foregoing any loss of profits, business, business opportunity, contract, goodwill or reputation) and the customer shall indemnify and save the Company harmless against any such loss.
(IV) The Company's total liability in respect of all other losses arising under or in connection with these terms and conditions, whether in negligence, tort, contract, breach of statutory duty or otherwise shall in no circumstances exceed the amounts paid in relation to each order (limited to a period for 12 months preceding the date such action was made).
(V) Nothing in these terms and conditions shall limit any liability for death or personal injury caused by negligence, fraud or fraudulent misrepresentation or breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982.
(VI) These terms in relation to the limitation of liability shall survive the termination of these terms and conditions.
J. INDEMNITY
(I) 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 distributed or dealt with by the Company for the customer, whether such matter or thing is, or is alleged to be illegal, unlawful, libellous, an infringement or copyright, trade mark, patent design or any third party right whatsoever of any nature, or in breach of any code, regulation or guidelines whether having 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 cost, 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.
(II) It is the responsibility of the printer and/or publisher of any item distributed to ensure that the legal requirements relating to the items are met. In this context, it should be noted that it is a legal requirement that all newspapers, leaflets, supplements, etc. intended for distribution shall contain the name and address of the printer. The Company will have resources to the customer for any legal action taken against the company that directly relates to the form or content of the item distributed.
K. INTELLECTUAL PROPERTY RIGHTS
(I) The copyright of any artwork or other material prepared by the Company for use in connection with any order, whether published or not shall belong to the Company.
(II) The customer must not use any other trademarks or intellectual property rights that belong to the Company, or use or apply any other words, marks, logos or devices similar to those the Company uses or which may, in the Company's opinion, cause confusion or suggest the customer has an association with the Company.
L. TERMINATION
(I) The Company may determine any contract then subsisting without notice and without prejudice to any of the Company's other rights or claims against the customer, if the customer: (a) commits a breach of contact or obligation to the Company: or (b) if distress or execution is levied upon the customer's property: or (c) if the customer 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 made against it or such analogous event of insolvency: or (d) if a receiver is appointed to any of the customer's property or assets.
(II) Upon such termination and without prejudice to the Company's other rights and claims the customer shall pay any outstanding unpaid invoices and, where applicable, the Cancellation Fee to the Company forthwith together with any accrued interest.
(III) The accrued rights and remedies of the Company as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of these terms and conditions which existed at or before the date of termination or expiry.
(IV) Clauses which expressly or by implication have effect after termination shall continue in full force and effect.
M. SUB-CONTRACTORS AND ASSIGNMENT
(I) The Company reserves the right to sub-contract, transfer, charge and assign the whole or any part of the order.
(II) The customer may not sub-contract, transfer, charge and assign its rights or obligations hereunder to a third party without prior written consent of the Company.
N. CONFIDENTIALITY
(I) Both parties shall keep in strict confidence all technical or commercial know-how specifications and processes including the content of the terms as agreed between the parties in relation to each order and any other confidential information.
(II) This clause shall survive the termination of these terms and conditions.
O. NOTICES
Any written notice under these terms shall be in writing and shall be deemed to have been properly given if hand delivered or sent by pre-paid first class post to the registered office or any one of the principal places of business of the party being served on the date delivered, if by hand or the date when in the ordinary course of post the letter would have been delivered if sent by post.
P. WAIVER
No waiver by the Company of any breach of these terms shall be considered as a waiver of any subsequent breach of the same or any other provision.
Q. ENTIRE AGREEMENT
These terms represent the entire agreement and understanding between the parties, and no amendments to these terms shall be binding on the parties unless agreed in writing by both parties.
R. SEVERANCE
(I) If a court or any other competent authority finds that any provision of these terms and conditions (or part of any provision) is invalid, illegal or unenforceable, that provisions or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of these terms and conditions shall not be affected.
(II) If any invalid, illegal or unenforceable provision of these terms and conditions would be valid, legal and enforceable if some part of it were deleted or amended, the provision shall apply with the minimum modification necessary to make it valid, legal and enforceable.
S. NO PARTNERSHIP
Nothing in these terms and conditions is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between the parties. Nor shall either party have the authority to bind or act as agent for the other party.
T. THIRD PARTIES
A person who is not a party to these terms and conditions shall not have any rights under or in connection with them.
U. COMPLIANCE WITH LAWS
Both parties agree that they will keep, and make sure that anyone which each party employs or is responsible for, adheres to any anti-bribery or anti-money laundering laws and regulations relating to these terms and conditions.
V. GOVERNING LAW AND JURSIDICTION
These terms and conditions, and any dispute or claim arising out of or in connection with them or the subject matter or formation (including non-contractual disputes or claims), shall be governed and construed in accordance with the English Law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.