terms & notices
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Prospect Marketing PTY Ltd
STANDARD TERMS AND CONDITIONS OF TRADE
1 DEFINITIONS
1.1 The following terms and definitions shall apply to this and any other official document despatched by Prospect Marketing PTY Ltd:-
“Contract” means any formal agreement between Prospect Marketing PTY Ltd and the Customer for the sale and purchase of services.
“Customer” means the person, firm or company who purchases the services from Prospect Marketing PTY Ltd.
“Promotional Media” means E-mail, fax, text media (SMS) and voice services
“Recipient” means the e-mail address phone number or fax number used in the Promotional Media;.
“Network” means the data network or PSTN operated Telephone Carrier Companies.
“Image” means material to be transmitted and/or received by Prospect Marketing PTY Ltd in the course of the provision of the Services.
“Services” means the transmission of the Image via the Promotional Media to the List.
“Transmission server” means the Transmission server operated by Prospect Marketing PTY Ltd for the provision of the Services.
1.2 References to any legal or statutory provision shall be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.
2 APPLICATION OF TERMS
2.1 These Conditions apply to all Prospect Marketing PTY Ltd’s sales and any variation to these Conditions and any representations about the Services shall have no effect unless expressly agreed in writing and signed by an authorised representative of Prospect Marketing PTY Ltd. (This includes any terms the customer stipulates under his own purchase order unless specifically accepted in writing by Prospect Marketing PTY Ltd)
2.2 Each order for Services by the Customer from Prospect Marketing PTY Ltd shall be deemed to be an offer to purchase Services subject to these Conditions.
2.3 No order placed by the Customer shall be deemed to be accepted by Prospect Marketing PTY Ltd until a written acknowledgement of order is issued by Prospect Marketing PTY Ltd or (if earlier) Prospect Marketing PTY Ltd performs the Services.
2.4 Quotations are valid for a period of 30 days from the date of quotation, provided that Prospect Marketing PTY Ltd does not withdraw it within such period but are not to be construed as an acceptance of an order or agreement to perform services.
3 CUSTOMER’S OBLIGATIONS
3.1 The Customer undertakes and warrants that it shall:
3.11 ensure that the terms of its order and any applicable specification are complete and accurate;
3.1.2 if requested by Prospect Marketing PTY Ltd, provide a copy of the Image prior to acceptance of an order in an electronic or hard copy format as requested.
3.1.3 ensure that the List information provided by the Customer is accurate and complete to a material extent, and in any event not less than 80% accuracy;
3.1.4 ensure that the Image complies with all statutes, rules, directives, guidelines and any other legal requirements and in accordance with the British Code of Advertising Practice;
3.1.5 observe and comply with the regulations and requirements of the Wireless Telegraphy Act 1967, the Telecommunications Act 1984 and all other relevant legislation, statutory instruments or Governmental or Municipal regulations in force from time to time and any directions made hereunder;
3.1.6 obtain and pay for all necessary licence's and consents in relation to the use of the Image;
3.1.7 not use the Services for any improper, immoral or unlawful purpose;
3.1.8 not act or omit to act in any way which may in any manner injure or damage any persons, their reputation, property, the Transmission server or the Services; and
3.1.9 indemnify and keep indemnified Prospect Marketing PTY Ltd against all actions, proceedings, costs, damages, expenses, penalties, claims, demands and liabilities arising from breach of any of these Conditions or in any manner whatsoever from the transmission or use of the Image.
4 COMPANY OBLIGATIONS
4.1 Prospect Marketing PTY Ltd shall use reasonable endeavours to provide and maintain the availability of the Services.
4.2 Prospect Marketing PTY Ltd will regularly update the List with any prohibited Recipients provided to it.
4.3 Prospect Marketing PTY Ltd will comply with the provisions of the Data Protection Act 1998 in the performance of the Services and shall be the Data Processor for the purposes of that act.
5 PERFORMANCE
5.1 Unless otherwise agreed in writing by Prospect Marketing PTY Ltd the performance of the Services shall take place at Prospect Marketing PTY Ltd’s place of business from time to time.
5.2 Any dates or times specified by Prospect Marketing PTY Ltd for performance of the Services are intended to be an estimate and time for a performance shall not be made of the essence by notice from the Customer. If no dates are specified, performance will be within a reasonable time of acceptance of the order.
5.3 Prospect Marketing PTY Ltd does not guarantee, warrant or represent that the Services will elicit any response from the List.
5.4 Prospect Marketing PTY Ltd may in its sole discretion refuse to accept any order to transmit any Image, including without limitation any such material which:
5.4.1 does not comply in all respects with Prospect Marketing PTY Ltd’s obligations under any law, regulation, directive, guideline or code of practice;
5.4.2 differs in any material respect from the Image previously approved by Prospect Marketing PTY Ltd; or
5.4.3 Prospect Marketing PTY Ltd considers to be abusive, discriminatory or defamatory in any way.
6 NON-PERFORMANCE
6.1 The Report produced by Prospect Marketing PTY Ltd shall be conclusive proof of the performance of the Contract (or any part thereof) unless the Customer can provide conclusive written evidence proving the contrary.
7 SUSPENSION
7.1 Prospect Marketing PTY Ltd may at any time on the giving of reasonable notice (taking into account the reason for the suspension) suspend the Services, or part thereof, in any of the following circumstances:
7.1.1 if the Customer breaches any of these Conditions or any other terms of the Contract; or
7.1.2 if the quality of the Services or the operation of the Transmission server is impaired or otherwise adversely affected by any act or omission of the Customer; or
7.1.3 a technical failure or matters outside the direct control of Prospect Marketing PTY Ltd which prevents Prospect Marketing PTY Ltd from performing its obligations under the Contract for any reason; or
7.1.4 to enable improvements or modifications to be carried out to the Transmission server.
7.2 Prospect Marketing PTY Ltd shall have the absolute right to:
7.2.1 secure the removal from the Transmission server of any material or information which it reasonably believes to be in breach of these Conditions or any other terms of the Contract;
7.2.2 bar access to the Services if it reasonably believes any information provided by the Customer is in breach of these Conditions or any other terms of the Contract;
7.2.3 temporarily suspend or restrict the Services if the further use of the Services would cause or increase congestion in the Transmission server or the PSTN.
8 TERMINATION
8.1 The Contract shall automatically terminate without notice if Prospect Marketing PTY Ltd is permanently prevented from performing the Services because of the expiry or termination of any licensing agreement required by Prospect Marketing PTY Ltd or PSTN to provide the Services.
8.2 Prospect Marketing PTY Ltd may terminate the Contract at any time by notice if any sum due to Prospect Marketing PTY Ltd remains unpaid seven days after it becomes due.
8.3 Either Party may terminate the Contract at any time on written notice if the other party commits an irremediable breach of the Contract.
8.4 The termination of the Contract shall be without prejudice to the accrued rights of the either party arising prior to such breach.
9 VARIATIONS
9.1 Prospect Marketing PTY Ltd may, upon giving the Customer reasonable notice (having regard to the cause of the variation) make amendments, additions or variations to the Transmission server or the Services that are either of a minor nature or are reasonably considered by Prospect Marketing PTY Ltd to be appropriate or necessary for the future provision or improvement of the Transmission server or the Services.
10 PRICE
10.1 Unless otherwise agreed by Prospect Marketing PTY Ltd in writing, the price for the Services shall be the price set out in Prospect Marketing PTY Ltd’s tariff from time to time in force at the Contract date and is exclusive of VAT.
10.2 The Customer accepts that distribution targets are flexible and agrees to pay for any additional distribution of the Image pro rata at the tariff applicable to the Contract but limited to a variation of no more than 10%
11 PAYMENT
11.1 Payment of the price of the Services is due within 30 days of the date of issue of a valid invoice. Time for payment shall be of the essence.
11.2 No payment shall be deemed to have been made until Prospect Marketing PTY Ltd has received cleared funds.
11.3 All payments payable to Prospect Marketing PTY Ltd under the Contract shall become due immediately on termination of this Contract despite any other provision.
11.4 The Customer shall make all payments due under the Contract without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by Prospect Marketing PTY Ltd to the Customer.
11.5 If the Customer fails to pay Prospect Marketing PTY Ltd any sum due pursuant to the Contract the Customer will be liable to pay interest to Prospect Marketing PTY Ltd on such sum from the due date for payment at the annual rate of 8% above the base lending rate from time to time, accruing on a daily basis until payment is made, whether before or after any judgment. Prospect Marketing PTY Ltd reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
11.6 If the Customer wishes to dispute an invoice, they must do so in writing within seven days of the date of such invoice.
11.7 Prospect Marketing PTY Ltd may provide a 30 day credit facility to the Customer subject to a satisfactory credit check.
11.8 Prospect Marketing PTY Ltd reserves the right to refuse an order if the Customer has exceeded any agreed credit limit, or if the performance of such order would cause the Customer to exceed the agreed credit limit.
12 SERVICE
12.1 Prospect Marketing PTY Ltd may on request provide the quality of service report provided by the Network from time to time for its customers generally.
12.2 The List will be identified by Prospect Marketing PTY Ltd with reference to either:
12.2.1 the descriptors supplied (if any) by the Customer; or
12.2.2 the information supplied by the Customer.
13 LIMITATION OF LIABILITY
13.1 The following provisions set out the entire financial liability of Prospect Marketing PTY Ltd (including any acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
13.1.1 any breach of these Conditions or other term of the Contract; and
13.1.2 any representation, statement, or other act, or omission including negligence arising under or in connection with the Contract.
13.2 Prospect Marketing PTY Ltd does not accept liability arising as a result of any inaccuracies in the information contained in its database.
13.3 Prospect Marketing PTY Ltd does not accept any liability arising as a result of the inaccuracy of information supplied by the Customer or the omission of relevant information by the Customer or for any loss due to the content of the Image.
13.4 Prospect Marketing PTY Ltd will not be liable for any loss suffered as a result of the List (or part thereof) being inappropriate for the Customer’s purposes.
13.5 Any liability of Prospect Marketing PTY Ltd for non-performance of the Services shall be limited to performance of the Services within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such non-performed Services.
13.6 Subject to the other provisions of these Conditions Prospect Marketing PTY Ltd will not be liable for any loss (including loss of profit), costs, damages, charges or expenses caused directly or indirectly by any delay in the performance of the Services (even if caused by Prospect Marketing PTY Ltd’s negligence), nor will any delay entitle the Customer to terminate or rescind the Contract unless such delay exceeds 180 days.
13.7 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
13.8 Nothing in these Conditions excludes the liability of Prospect Marketing PTY Ltd for death or personal injury caused by Prospect Marketing PTY Ltd’s negligence or fraudulent misrepresentation.
13.9 Subject to conditions 13.7 and 13.8:
13.9.1 Prospect Marketing PTY Ltd’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the Contract price; and
13.9.2 Prospect Marketing PTY Ltd shall not be liable to the Customer for any indirect or consequential loss or damage (whether for loss of profit, loss of business, loss of data, depletion of goodwill or otherwise, costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection the Contract.
14 ASSIGNMENT
14.1 The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of Prospect Marketing PTY Ltd.
14.2 Prospect Marketing PTY Ltd may assign the Contract or any part of it to any person, firm or company.
15 FORCE MAJEURE
15.1 Prospect Marketing PTY Ltd reserves the right to defer the date of performance or to cancel the Contract or reduce the volume of the Services ordered by the Customer (without liability to the Customer) if it is prevented or delayed in the carrying on of its business due to circumstances beyond the reasonable control of Prospect Marketing PTY Ltd including, without limitation, acts of God, governmental actions, war or national emergency, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delays in obtaining adequate supplies of materials, provided that, if the event in question continues for a continuous period in excess of 60 days, the Customer shall be entitled to give Prospect Marketing PTY Ltd notice in writing to terminate the Contract.
16 GENERAL
16.1 Each right or remedy under the Contract is without prejudice to any other right or remedy of Prospect Marketing PTY Ltd whether under the Contract or not.
16.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, void, or unreasonable, that particular provision will be deemed separate, and the remaining provisions of the Contract and the remainder of such provisions shall continue in full force and effect.
16.3 Failure or delay by Prospect Marketing PTY Ltd in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.
16.4 Any waiver by Prospect Marketing PTY Ltd of any breach of, or any default under, any provision of the Contract by the Customer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the contract.
16.5 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
17 COMMUNICATION
17.1 All communications between the parties about this Contract must be made in writing and delivered by hand or sent by pre-paid first class past or sent by facsimile transmission:
17.1.1 (in the case of communications to Prospect Marketing PTY Ltd) to its registered office or such changed address as shall be notified to the Customer by Prospect Marketing PTY Ltd; or
17.1.2 (in the case of communications to the Customer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Customer set out in any document which forms part of this Contract or such other address as shall be notified to Prospect Marketing PTY Ltd by the Customer.
17.2 Communications shall be deemed to have been received:
17.2.1 if sent by pre-paid first class post, 2days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting);
17.2.2 if delivered by hand, on the day of delivery;
17.2.3 if sent by facsimile transmission on a working day prior to 4.00 p.m., at the time of transmission or otherwise on the next working day.
17.3 Communications addressed to Prospect Marketing PTY Ltd at the head office address and marked for the attention of the Operations Director.
© 2003 - 2009 Prospect Marketing PTY Ltd
