eMarketing Advantage Standard Terms and Conditions
1. Definitions
“Thomson”: means Thomson Directories Limited, company number 902438, with registered office at Thomson House, 296 Farnborough Road, Farnborough, GU14 7NU;
“Mailtrack”: means Mailtrack Limited, company number 3894107, with registered office at King House, 5-11 Westbourne Grove, London, W2 4UA;
"Buyer" means the individual, firm, company or other party with whom Thomson enters into a contract for the supply of Services;
“Campaign Delivery Date” means the date for delivery of the email campaign as stated on the Order Form or in the campaign booking confirmation sent by Thomson to the Buyer. Where the delivery date on the Order Form states a month (as opposed to a specific day of that month), and there is no specific date for delivery confirmed to the Buyer subsequently, the Campaign Delivery Date will be deemed to be the last working day of that month for the purposes of Clause 3.4.
“Contract” means the agreement made between Thomson and the Buyer comprising these Standard Terms and Conditions, the Order Form and any specific conditions or instructions detailed thereon and may relate to one or more email campaigns ordered by the Buyer;
"Services" shall mean any data planning, data processing, data tagging, fulfilment, consultancy or other similar services comprised in the Contract.
2. General
The Contract shall not be amended unless in writing signed by an authorised signatory of both parties. No waiver of any provision of the Contract by either party shall be effective unless made in writing. Any waiver made by such party of any term or condition of the Contract shall not be deemed or construed to be a waiver of such term or condition for the future, or any subsequent breach thereof.
3. Invoicing, charges and payment terms
3.1 Charges will include data selection, managing the set up, delivering the email and providing full campaign response analysis. Thomson allows 2 creatives per list for creative testing purposes. An administration charge of £150 will be levied per additional creative submitted and tested. A charge of £300 will be made in respect of any amendments made to the supplied creative after test has been sent for approval.
3.2 Unless otherwise specifically agreed with Thomson, all orders must be pre-paid in full. In circumstances where the execution of a campaign extends over a period exceeding one month, Thomson will, if it considers it appropriate, invoice all the Services carried out by Thomson monthly or at such other times as may be agreed with the Buyer and all such charges will be payable forthwith, in full. Final payment is due within thirty days and Thomson may charge the Buyer any reasonable administration and legal costs for recovering the amounts owed. This may involve registering non-payment details to credit reference agencies. The payment shall be made in sterling. VAT is payable in addition to the prices and any additional charges.
3.3 Time of payment of the price shall be of the essence of this Contract and Thomson may charge interest at the rate of two percent per month on any overdue payments of the price by the Buyer from the date payment became due until actual payment is made.
3.4 Failure by the Buyer to provide and approve the ad creative no later than 48 hours before the Campaign Delivery Date shall result in the full contract price becoming immediately due and payable. In the event that no Campaign Delivery Date has been stated on the Order Form and the date has not been agreed by the Buyer within 60 days of the invoice date, the full amount of the invoice shall become immediately due and payable.
4. Cancellation and Postponement
4.1 This Contract may be terminated only in accordance with Clause 14.
4.2 Subject to Clause 14.1, cancellation of any campaign to which this Contract relates is not permitted.
4.3 A campaign may be postponed from the delivery date originally agreed for it provided that at least 14 days’ written notice of postponement is provided to Thomson. Campaigns that are postponed for a period exceeding 30 days will be invoiced 30 days from the originally agreed delivery date and must be paid for in full within 30 days of the invoice date.
5. Buyer’s Responsibility
The Buyer is solely responsible for the content of emails sent. The Buyer agrees not to transmit any unlawful, harassing, libellous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature. Buyer further agrees not to transmit any material that encourages conduct that could constitute a criminal offence, give rise to civil liability or otherwise violate any applicable law or regulation. Thomson retains the right at its sole discretion, to refuse the delivery of any content that it considers contravenes these Terms and Conditions. Thomson shall also have the right to refuse the delivery of any content which, in Thomson’s reasonable opinion, promotes products and services which compete with its own products and services.
6. Copy
Finalised Copy/HTML must be with Mailtrack at least 5 working days before the Campaign Delivery Date to allow for set-up and testing. Failure to adhere to the timelines shall be considered a breach of the terms of this Contract and may, at Thomson’s sole discretion, lead to delays to the delivery date or a reduction in the number of emails delivered from the number ordered or cancellation of the Contract. Buyer will be responsible for the accuracy of all text and HTML copy and will ensure that all URL links in the message are correct and working prior to email delivery. All copy is to be transmitted via email in the following preferred formats: Text format = Word (.doc) or Text (.txt); Images format = .gif or .jpg or .tif; HTML format = entire ad must be completed in HTML format.
7. Hosting
Buyer will host all HTML images unless otherwise agreed. A charge of £0.02 per mail (HTML recipients only) will be levied on the Buyer if Mailtrack is required to host HTML images.
8. Ad Creative Approval
The Buyer must approve all ad creative no later than 48 hours prior to the Campaign Delivery Date. Time is of the essence in relation to such approval. An authorized representative of the Buyer shall send such approval in the form of an email. A copy of the approved ad should either be included in the body of the approval email or added as an attachment to the approval email. Failure to provide and approve the ad creative by such time shall be considered a material breach of the terms of this Contract and may lead to delays to the delivery date or termination, at Thomson’s sole discretion, of the Contract and to the full contract price becoming due and payable in accordance with Clause 3.4.
9. Delivery and Time
Whilst Thomson will make every effort to complete the Contract within the time quoted, time shall not be of the essence of the Contract unless specifically stipulated in these Standard Terms and Conditions or on the Schedule of Services section of the Order Form.
10. Tracking and Reporting
Thomson will provide tracking and reporting services on all campaigns via Mailtrack. The parties agree that, in the event that the Buyer’s third party tracking system indicates a discrepancy in the number of deliverables hereunder from Mailtrack's tracking report, Mailtrack's tracking report shall prevail. Unless specifically requested in this Contract to the contrary, Mailtrack will track all URLs within emails.
11. Limitation of Liability
11.1 Thomson makes no warranties, guarantees, promises or representations, either express, implied, oral, written or otherwise, except as expressly set forth in this Contract. Thomson does not make any warranty, guarantee, promise or representation, express, implied, oral, written or otherwise, as to the results of any campaign. No oral advice or written information outside this Contract given by Thomson or any of its officers, directors, employees, agents, licensers or the like will create a representation, warranty or condition, nor should you rely on such information or advice.
11.2 Whilst Thomson endeavours to ensure that the email address data to which the Buyer’s campaigns will be directed and the Data (as defined in Clause 12) is accurate, neither Thomson nor its agents or employees can, subject to Clause 11.3, accept liability for any loss or damage resulting from omissions or inaccuracies relating to such data regardless of how caused.
11.3 Thomson’s liability to the Buyer for death or injury resulting from its own negligence or that of its employees agents or sub-contractors shall not be limited.
11.4 In no event will Thomson be liable in contract, tort or otherwise for any indirect, special, incidental or consequential loss or damage resulting from any breach of its obligations hereunder or from any representation, tortious act or omission including negligence arising under or in connection with this agreement.
11.5 The parties hereby agree that taking into account all the circumstances including inter alia, the fees payable by the Buyer hereunder and the ability of each party to insure itself, the limitations contained herein are reasonable.
12. Provision of Data
Thomson may, at the request of the Buyer and subject to appropriate payment, provide the Buyer with the business listings data (apart from email addresses) relating to the email addresses included in the Buyer’s email campaign (the “ Data”). Thomson grants a non-exclusive, non-transferable, limited licence to use the Data for the Buyer’s own direct marketing purposes (the “Permitted Purpose”). The Data may not be distributed, sold or otherwise transferred to, or used for the purposes of, any third party and may not be used for any purpose other than the Permitted Purpose. In particular, the Data may not be used for the purposes of creating a database or directory, whether printed, electronic or otherwise, for publication or sale.
13. Indemnity
The Buyer agrees to indemnify Thomson, its employees and agents against all proceedings, claims, demands, expenses, losses and/or damages arising from the content provided by the Buyer for the Buyer’s email campaign, including the legal fees, costs of litigation or judgements arising out of mailing or emailing such content to the email addresses contained in Thomson’s email address data.
14. Termination
14.1 The Buyer may terminate this Contract by giving Thomson written notice of termination within 7 days of the date of signing the Order Form. In the event of such termination, Thomson shall be entitled to charge an administration fee equal to 10% of the total Contract price.
14.2 This Contract may be terminated by either party immediately on written notice to the other party (i) if the other party commits a material breach of the Contract and (in the case of a breach capable of remedy) fails to remedy such breach within 30 days of written notice requesting the breach to be remedied; or (ii) if the other party is unable to pay its debts or enters into compulsory or voluntary liquidation, other than for the purpose of reconstruction or amalgamation of the company, or compounds with or convenes a meeting of its creditors or has a receiver or manager or an administrator appointed of its assets or ceases for any reason to carry on business.
14.3 Any failure by the Buyer to pay any amount under this Contract when due shall constitute a material breach of the Contract by the Buyer.
15. Entire Agreement and Enforceability
15.1 This Contract sets out the entire agreement and understanding between Thomson and the Buyer and replaces all previous agreements, arrangements and understandings between them.
15.2 If at any time any one or more of the provisions of these Standard Terms and Conditions becomes invalid, illegal or unenforceable under any law or is held by a court to be invalid, illegal or unenforceable, the validity and enforceability of the remaining provisions hereof shall not be in any way affected or impaired thereby.
16. Force Majeure
Thomson shall not be liable for any loss suffered or incurred by the Buyer as a result of any delay in performance, or non-performance of any of its obligations under the Contract to the extent that such delay or non-performance is due to any circumstances beyond its reasonable control including, without limitation, accidents, fires, explosion, failure of equipment or machinery, delays in transportation, war, civil commotions, riots, sabotage and interruptions by government.
17. Jurisdiction
The Contract shall be governed by and construed in accordance with the laws of England. The parties submit to the exclusive jurisdiction of the English courts for the resolution of any dispute which may arise in connection herewith.
18. Miscellaneous
The Buyer agrees that the signature of the Order by or on behalf of it constitutes an offer by the Buyer to contract with Thomson upon the terms of the Order and these Standard Terms and Conditions and that the Contract arises upon acceptance of such offer by Thomson. Acceptance of the offer will be subject to the Buyer meeting relevant credit criteria.
