Unless otherwise agreed in writing, these conditions ("Conditions") apply exclusively to each transaction ("Contract") for the supply of services relating to leaflet delivery work ("Services") by Effemey Cosby Advertising Limited (and its permitted assigns and/or sub-contractors) ("the Company") to a client ("the Client") (together "the Parties").
2.1 The price of the Services ("the Price") is the Company's quoted price and is exclusive of VAT. Quotations will be valid for 30 days from issue. The Company is only bound by orders which it has accepted in writing. An accepted order can only be cancelled or varied with the Company's consent.
2.2 The Client will pay the Price plus VAT in advance.
3 Promotional Materials
The Client must supply sufficient information to enable the Company to proceed with the execution of the Contract. The Client must supply promotional leaflets or materials ("Promotional Material") to the address stated by the Company and insure against the accidental loss or damage by the Company of the Promotional Material. The Company has no liability for any loss or damage to Promotional Material, howsoever caused. The Client warrants that Promotional Material will not infringe the copyright or other intellectual property rights of a third party and will not be abusive or indecent or defamatory. The Client will indemnify the Company for and against any loss, damage, costs, expenses or other claims arising from breach of this warranty. The Company may destroy any surplus Items without reference to the Client and without further liability. Any Items forming part of a Distribution which is cancelled after they have been processed and dispatched from the Handover Point may not be returned to the Customer intact or at all.
4 Additional costs
The Client must, on request, pay any additional cost to the Company in supplying the Services caused by: any breach, default, delay or variation by the Client of its obligations under the Contract or these Conditions; any factor beyond the Company's reasonable control; any change in the dates of the supply of the Services which the Client requires; or any delay caused by the Client's instructions or the Client's failure to give the Company adequate information or instructions when the order has been accepted the quotation or at any other time.
5.1 The Company warrants that it will use its reasonable endeavours to procure the doorstep delivery of the Client's Promotional Material to addresses in the geographical locations agreed between the Parties ("Location") by means of selecting personnel to perform such duties ("Personnel").
5.2 The Company is unable to guarantee that all Promotional Material will be delivered or that all addresses within the Location will receive Promotional Material. We confirm that the maximum achievable penetration level will be eighty percent. The Client expressly accepts this limitation of the Services offered on the basis of the extremely competitive nature of the Price and the limited warranty given in this Condition 6.
5.2.1 The Company will endeavour to carry out delivery of Stock between the Start Date and Finish Date but the Company reserves the right to vary both the method and time of delivery at is discretion. Without limitation to the foregoing the Company shall not be liable for any delays in distribution and/or non-distribution caused by circumstances beyond the Company's control.
5.3 The Company warrants that it will use reasonable skill and care to select Personnel to deliver Promotional Material. All other warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
5.4 Where any valid warranty claim is made in respect of any Services, the Company can choose either to re-perform the Services to the extent necessary to make good any defect free of charge or to grant credit to or refund to the Client the Price (or a proportionate part of the Price) at the Company's absolute discretion, but the Company will have no further liability to the Client under the warranty. If the Company chooses to re-perform the Services, the Client will provide additional Promotional Material free of charge for this purpose.
5.5. Any and all promotional material that shall be held in our warehouse facility for a period of fourteen days shall be deemed as surplus to requirements and as such will be disposed of at the end of said fourteen days.
6 Limitation of liability
6.1 Except as provided in Condition 6.4, the Company is not liable to the Client because of any representation (unless fraudulent), or any warranty (express or implied), condition or other term, or any duty at common law, or under the express terms of the Contract, for:
6.1.1 any loss of profit, business, contracts, opportunity, goodwill, revenues, anticipated savings, expenses, costs or similar loss; and/or 6.1.2 any indirect, special or consequential loss or damage (whether for loss of profit or otherwise); (whether caused by the negligence, breach of contract, tort, breach of statutory duty of the Company, its employees or agents or otherwise) arising out of or in connection with the Contract).
6.2 Except as provided in 7.4, any other liability of the Company to the Client in contract, tort, breach of statutory duty or otherwise arising out of or in connection with the Contract or any series of Contracts, is limited to the Price received by the Company in respect of the Contract or series of Contracts in question.
6.3 The Company will have no liability to the Client for any loss, damage, costs, expenses or other claims for compensation arising from any Promotional Material or instructions supplied by or on behalf of the Client which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other fault of the Client not attributable to the Company.
6.4 Nothing in these Conditions will operate or be construed to operate so as to exclude or restrict the liability of the Company for death or personal injury caused by the negligence of the Company.
6.5 The Company has no liability under the warranties given in Condition 5 unless the Price for the Services has been received by the Company in full.
The Client can choose to cancel the Contract at any time, subject to these cancellation charges: With between two and one months left prior to the first day of distribution: 50% of the delivery charge subject to a minimum fee of £150.00 + VAT. - With less than one month and more than fourteen days left prior to the first day of distribution: 75% of the delivery charge subject to a minimum fee of £150.00 + VAT. - Within fourteen days prior to the first day of distribution: 100% of the delivery charge subject to a minimum charge of £150.00 + VAT.
The Client grants the Company exclusivity to perform the Services using Personnel and it is a condition of entering into any Contract that the Client will not attempt to contract, or will actually contract, with Personnel direct.
9 Complaints Procedure
Any complaint in respect of the distribution must be made in writing providing the name and full address (including 6 digit post code) of any alleged non-delivery and must be received by the Company within seven days of the Finish Date of the distribution giving full details of the complaint alleged. If the complaint relates to a distribution that is 'staggered' over a number of weeks or months, the above data must be provided with seven days of the Finish Date of the distribution phase in dispute. If the complaint is not received within that period, the Company will not be able to undertake the appropriate action to investigate and remedy the complaint and the Company will not be liable to the Client for the complaint or any claim loss cost liability expense or demand arising there from.
10 Force Majeure
The Company is not liable to the Client for any failure or delay in performance of its obligations under the Contract which is beyond its reasonable control including any difficulty obtaining suitable Personnel or difficulty procuring performance by Personnel of obligations they have undertaken. The Company will inform the Client as soon as reasonably possible of any such occurrence.
11 Third Parties
Each Contract will only confer rights and benefits on the Client and no third party can acquire rights or benefits under the Contract or these Conditions.
The Contract may not be assigned by the Client, but the Company may assign or sub-contract all or any or its rights or obligations.
Any waiver by the Company of any breach of these Conditions or a Contract by the Client will not be treated as waiving any subsequent breach of the same or any other provision.
14 Entire Agreement
These Conditions and the documents referred to in them, set out the entire agreement between the Parties and supersedes any previous agreements between the Parties relating to the subject matter of these Conditions. The Client acknowledges that in entering into a Contract subject to these Conditions, it has not relied on any representation, warranty, agreement or statement not set out in these Conditions and that (in the absence of fraud) it will not have any right or remedy arising out of any such representation, warranty, agreement or statement and that its only remedy for breach of these Conditions is for breach of contract under the terms of these Conditions.
15 Law and Jurisdiction
English law governs these Conditions and each Contract and the Parties agree to the exclusive jurisdiction of the English Courts