1. INTERPRETATION


1.1 The definitions and rules of interpretation in this clause apply in these terms and conditions.
Diretto: Diretto Limited
Contract: any Proposal provided by Diretto to the Client, together with these terms & conditions which shall be deemed to form part of such Contract. 
Client: the person, firm or company who purchases Services from Diretto.
Client’s Equipment: any equipment, systems, or facilities provided by the Client and used directly or indirectly in the supply of the Services.
Deliverables: all Documents, products and materials developed/supplied by Diretto in relation to the Project or the Service in any form, including any computer programs, data, printed materials and any other deliverables specified in the Proposal.
Document: includes, in addition to any document in writing, any artwork, drawing, map, plan, specification, diagram, design, picture or other image, report, tape, disk or other device or record embodying information in any form.
Client Materials: all Documents, information and materials provided by the Client relating to the Services.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Pre-existing Materials: all Documents, information and materials provided by Diretto relating to the Services which existed prior to the commencement of the Contract including computer programs and data.
Project: any project for the provision of Services (other than under the terms of a Retainer) and which is described in a Proposal.
Proposal: any proposal or quotation provided by Diretto to the Client and which is agreed between the parties.
Retainer: a Contract under which Diretto agrees to provide ongoing Services for a fixed number of days/hours per month, or a fixed Service every month, (or at such other intervals as shall be agreed).
Services: such marketing campaign management , or any other services which the parties agree that Diretto shall provide to the Client.
Third Party Costs: the cost of all services and products acquired by Diretto from the third parties in connection with the provision of the Services, including print, direct mail fulfilment, postage, couriers, advertising, data sourcing, and the supply of any materials and/or services.
1.2 Condition, schedule and paragraph headings shall not affect the interpretation of these conditions. 

1.3 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.

1.4 Where the words include(s), including or in particular are used in these terms and conditions, they are deemed to have the words without limitation following them and where the context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them.

2. APPLICATION OF CONDITIONS

2.1 These Conditions shall:
(a) apply to and be incorporated into the Contract; and
(b) prevail over any inconsistent terms or conditions contained, or referred to, in the Client’s purchase order, confirmation of order, acceptance of a Proposal or specification, or implied by law, trade custom, practice or course of dealing.
2.2 Any Proposal or Quotation issued by Diretto is valid for a period of 30 calendar days and is for the whole of the goods or services to which the quotation relates. Diretto may extend the period for consideration of its quotation at its discretion and may refuse to accept any order for goods or services, which constitute only a part of the quotation unless the initial specification requested separate quotations for separate elements of the order. No contract shall exist between Diretto and the Client where Diretto rejects the order. 
2.3 Any Proposal or Quotation issued by Diretto is based on information available at the date of the quotation and is subject to sight of materials, their suitability and any artwork and data to be supplied to Diretto by the Client.

3. COMMENCEMENT AND DURATION

3.1 Diretto shall provide the Services from such date as Diretto shall specify.
3.2 The Services shall continue to be supplied until the Project is completed or, in the case of a Retainer, until the Contract is terminated by one of the parties giving to the other not less than 3 months notice (or such other period of notice as is stated in the Proposal), unless the Contract is terminated in accordance with clause 13.

4. DIRETTO’S OBLIGATIONS

4.1 Diretto shall use reasonable endeavours to provide the Services, and to deliver the Deliverables to the Client, in accordance in all material respects with the Proposal.
4.2 Any dates given by Diretto for performance or completion of work must be and are given in good faith by subject thereto shall not form a term of the contract and Diretto shall not be
liable for loss injury damage or expense arising directly or indirectly from any delay whether caused by negligence or otherwise. Time for the Company to perform any obligation is not and
cannot be made of the essence of the contract.
4.3 It is the Client’s responsibility to check and approve in writing any proofs submitted by Diretto, and Diretto accepts no responsibility or liability for any errors identified once the proofs have been approved. Diretto shall be entitled to charge for all costs and expenses incurred in making any alterations to proofs once these have been approved.
4.4 Every endeavour will be made to deliver the correct quantity of any printing or reproductive work ordered by owing to the difficulty in producing exact quantities estimates are conditional upon a margin of 5% (in colour work 10%) being allowed for overs and shortages.
4.5 In the case of mailings made by Diretto whilst every effort is made to quote the number of addresses accurately no warranty can be given nor is it a condition that the quoted figures tallies with that finally reached during the execution of the order.

5. CLIENT’S OBLIGATIONS

5.1 The Client shall:
(a) provide, in a timely manner, such Client Material and other information as Diretto may request and ensure that it is accurate in all material respects; and 
(b) inform Diretto of all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Client’s premises where Diretto (or its agents, subcontractors or employees) may be required to attend.
5.2 If Diretto’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Client, its agents, sub-contractors or employees, Diretto shall not be liable for any costs, charges or losses sustained or incurred by the Client arising directly or indirectly from such prevention or delay, and Diretto shall be entitled to charge the Client as if the Services had been performed in full.
5.3 The Client shall be liable to pay to Diretto, on demand, all reasonable costs, charges or losses sustained or incurred by Diretto (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Client’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to Diretto confirming such costs, charges and losses to the Client in writing.
5.4 The Client shall not, without the prior written consent of Diretto, at any time from the date of the Contract to the expiry of 6 months after the completion of the Project or the last date of supply of the Services or termination of the Contract, solicit or entice away from Diretto or employ or attempt to employ any person who is, or has been, engaged as an employee or sub-contractor of Diretto in the provision of the Services.
5.5 Any consent given by Diretto in accordance with clause 5.4 shall be subject to the Client paying to Diretto a sum equivalent to 20% of the then current annual remuneration of Diretto’s employee or sub-contractor or, if higher, 20% of the annual remuneration to be paid by the Client to that employee or sub-contractor.

6. CLIENT MATERIALS

6.1 The Client shall ensure that the Client Materials do not infringe any applicable laws, regulations or third party rights (including material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous or in breach of any third party Intellectual Property Rights)
6.2 The Client shall:
(a) provide Diretto with a true copy of all advertising material or other material intended to be enclosed with any material prepared by the Diretto in relation to a direct mail campaign; 
(b) ensure that all information or materials provided by it complies with all applicable statutory requirements and with the codes of practice of the appropriate supervisory bodies including, but not limited to, the British Codes of Advertising, Sales Promotion and Direct Marketing (Cap code); and the Direct Marketing Association’s Code of Practice; 
(c) ensure that any consumer mailing addresses provided to Diretto are cleaned against the Mailing Preference Service (MPS) files, unless it is agreed that this will be carried out by Diretto. 
(d) ensure that any material quantities contain sufficient overs to allow for spoilage in campaign production (printed items and envelopes – 5% overs required unless agreed otherwise)
6.3 The Client shall indemnify Diretto against all costs, claims, liabilities, penalties and expenses which Diretto may incur by reason of its’ work being illegal, unlawful, infringing on copyright, trademark or other intellectual or other proprietary rights of any third party or is defamatory, obscene or the distribution of which may infringe postal or other regulations or which is in breach of any trade description or other legislation. 
6.4 The Client shall ensure that any computer data supplied to the Company is clean, unadulterated, capable of being read and processed and does not contain any computer viruses. In the event of the computer data supplied being corrupt, the Company shall either require the Client to supply clean unadulterated data which does not contain any computer viruses or decontaminate the data itself but at the Client’s expense. 
6.5 The Client shall ensure that all data supplied to the Company are completely unambiguous with regard to their format. A specification of the formats of the data supplied and instructions for interpretation must be provided in writing. 
6.6 Insurance of materials 
All materials supplied by on or behalf of the Client are at the Client’s risk whilst on the Diretto’s premises or those belonging to it’s suppliers or in transit to such premises and the Client is responsible for arranging adequate insurance cover for those materials unless arrangements have been made to the contrary.

7. CHANGE CONTROL

7.1 If either party requests a change to the scope or execution of the Services, Diretto shall, within a reasonable time, inform the Client of: 
(a) the likely time required to implement the change; 
(b) any variations to Diretto’s charges arising from the change; and
(c) any other impact of the change on the terms of the Contract.
7.2 Diretto may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services. If Diretto requests a change to the scope of the Services for any other reason, the Client shall not unreasonably withhold or delay consent to it. 
7.3 If the Client wishes Diretto to proceed with a change, Diretto has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its charges and any other relevant terms of the Contract to take account of the change.

8. CHARGES AND PAYMENT

8.1
a) Where the Services are provided on the basis of a Retainer the charges payable shall be calculated in accordance with the charges set out in the Proposal. 
b) Where the Services are provided as a Project, the total price for the Services shall be the amount set out in the Proposal. 
c) In either case the charges exclude the cost of VAT
8.2 Diretto will charge the Client for all Third Party Costs stated in any Proposal or as otherwise agreed with the Client. Diretto shall be entitled to retain any rebate or discount offered by the relevant third party without passing this on to the Client, or otherwise reserves the right to charge the Client (at its absolute discretion) an uplift on the amount charged by such third party;
8.3 Charges for Services provided on the basis of a Retainer will be payable monthly in advance, or as otherwise stated in the Proposal. In the case of Services provided as a Project, Diretto shall, unless otherwise stated in a Proposal, invoice the Client on completion of the Project and such invoice is payable within 30 days of receipt or as otherwise agreed. 
8.4 The Client shall also be charged for any preliminary work produced by Diretto at the Client’s request whether experimentally or otherwise and any corrections made after the first proof and any other changes requested by the client on or after the first proof. 
8.5 
a) Payment for postage 
Where the mailing is to be undertaken by Diretto’s own postal account or an account belonging to one of it’s suppliers, the cost of postage shall be paid, and cleared, no later than 48 hours before the mailing begins. If the cost of postage is not paid within the specified time limit Diretto shall have the right to withhold the mailing. 
b) Postal charge refunds 
Where the cost of postage is less than the amount paid by Direct Bank transfer the Company shall either refund any sums remaining to the Client or shall provide a credit for the Client for the next mailing it puts through Diretto’s account. 
8.6 Interest on overdue bills 
Diretto reserves the right to charge interest at the rate of 5% above the base rate of The Bank of England or part thereof on any overdue sums from the date on which payment was due (which shall mean 30 calendar days after the date of any invoice) to the date on which payment is received. 
8.7 The Client shall not make any set-off against Diretto and shall not be entitled by reason of any dispute between Diretto and the Client under this or any other contract to withhold payment of any amount which is due to Diretto.
8.8 In the case of Clients not resident in the UK payment shall be made in sterling or in freely convertible foreign currency at the exchange rate ruling on the date of the actual payment. It shall be a condition of contracts with such Clients that all necessary governmental and other consents are obtained within time for performance of Diretto’s and of the Client’s obligations and in any event by not later than 4 weeks from the date of order.

9. INTELLECTUAL PROPERTY RIGHTS

9.1 The property and any copyright or other intellectual property rights in any copy, artwork, plans, film, photography, transparencies, recordings, soundtracks, software and any other material (“Client Materials”) provided by Diretto shall, unless otherwise agreed in writing between the Client and Diretto, belong to Diretto, subject only to the right of the Client to use the Diretto’s Material for the purposes of utilising the Services.
9.2 Any Material or other information provided to the Client by Diretto shall be kept confidential by the Client; but the foregoing shall not apply to any documents or other materials, data or other information which are public knowledge at the time when they are so provided by either party, and shall cease to apply if at any future time they become public knowledge through no fault of the other party.
9.3 The Client warrants that any Client Material provided to Diretto and used by Diretto for the purpose of providing the Specified Service will not infringe the copyright or other rights of any third party, and the Client shall indemnify Diretto against any loss, damages, costs, expenses or other claims arising from any such infringement.

10. CONFIDENTIALITY AND DIRETTO’S PROPERTY

10.1 The Client shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Client by Diretto, its employees, agents or sub-contractors and any other confidential information concerning Diretto’s business or its products which the Client may obtain. The Client shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Client’s obligations to Diretto, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Client.
10.2 All Documents and materials supplied by Diretto to the Client (including Pre-existing Materials) shall, at all times, be and remain, as between Diretto and the Client, the exclusive property of Diretto, but shall be held by the Client in safe custody at its own risk and maintained and kept in good condition by the Client until returned to Diretto, and shall not be disposed of or used other than in accordance with Diretto’s written instructions or authorisation.
10.3 This clause 10 shall survive termination of the Contract, however arising.

11. WARRANTIES & LIABILITY – THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF THIS CONDITION

11.1 Diretto warrants to the Client that the Services will be provided using reasonable care and skill and, as far as reasonably possible, in accordance with the proposal. Where in connection with the provision of the Services Diretto supplies any goods or services obtained from a third party, Diretto does not give any warranty, guarantee or other term as to their quality, fitness for purpose or otherwise, but shall, where possible, assign to the Client the benefit of any warranty, guarantee or indemnity given by the person supplying the goods to Diretto.
11.2 Diretto shall have no liability to the Client for any loss, damage, costs, expenses or other claims for compensation arising from any information, material or instructions supplied by 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.
11.3 Except in respect of death or personal injury caused by the Diretto’s negligence, or as expressly provided in these Terms, Diretto shall not be liable to the Client by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of this contract, for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the negligence of Diretto, its suppliers, servants or agents or otherwise) which arise out of or in connection with the provision of the Services or their use by the Client, and the entire liability of Diretto under or in connection with this contract shall be limited to the contract price (excluding postage and telecommunications costs) or the sum of £500 whichever is greater, except as expressly provided in these Terms.
11.4 Completion dates are estimates only and no guarantees can be given by Diretto that the completion date will be achieved. Whilst the Diretto will make reasonable efforts to meet the agreed completion date, Diretto shall not be liable for any delay in failing to do so.
Diretto shall not be liable to the Client or be deemed to be in breach of this contract by reason of any failure to perform any of Diretto’s obligations in relation to the Services, if the delay or failure was due to any cause beyond Diretto’s reasonable control.

12. DATA PROTECTION

12.1 The Client acknowledges and agrees that details of the Client’s name, address and payment record may be submitted to a credit reference agency, and Personal Data will be processed by and on behalf of Diretto in connection with the Services.
12.2 In this clause 12, Personal Data has the meaning given in the Data Protection Act 1998.

13. TERMINATION

13.1 Subject to clause 13.3, the Contract shall terminate automatically on completion of the Project, or otherwise in the case of a Retainer, until terminated on 3 months notice, or such other period of notice as shall be set out in the Proposal.
13.2 Without prejudice to any other rights or remedies which Diretto may have, Diretto may terminate the Contract without liability to the Client immediately on giving notice if:
(a) the Client commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of being notified in writing of the breach; or
(b) an order is made or a resolution is passed for the bankruptcy or winding up of the Client, or circumstances arise which entitle a court of competent jurisdiction to make a bankruptcy or winding-up order of the Client; or
(d) an administrator or receiver is appointed of any of the Client’s assets or undertaking, or circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint an administrator or receiver or manager of the Client, or if any other person takes possession of or sells the Client’s assets; or
(e) the Client makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or
(f) the Client ceases, or threatens to cease, to trade; or
(h) the Client takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
13.3 On termination of the Contract under clause 13.2: 
(a) the Client shall immediately pay to Diretto all of Diretto’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Diretto may submit an invoice, which shall be payable immediately on receipt;
(b) the Client shall, within a reasonable time, return all Pre-existing Materials and Deliverables. If the Client fails to do so, then Diretto may enter the Client’s premises and take possession of them. Until they have been returned or repossessed, the Client shall be solely responsible for their safe keeping; and
(c) the accrued rights of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.

14. FORCE MAJEURE

Diretto shall have no liability to the Client under the Contract if it is prevented from or delayed in performing its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including strikes, lock-outs or other industrial disputes (whether involving the workforce of Diretto or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.

15. VARIATION

Subject to clause 7, no variation of the Contract shall be valid unless it is in writing and signed by or on behalf of each of the parties.

16. WAIVER

16.1 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.
16.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.

17. SEVERANCE

17.1 If any provision (or part of a provision) of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain in force.
17.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, that provision will apply with whatever modification is necessary to make it valid, enforceable and legal.
17.3 The parties agree, in the circumstances referred to in clause 17.1, and if clause 17.2 does not apply, to attempt to substitute for any invalid, unenforceable or illegal provision a valid, enforceable and legal provision which achieves to the greatest extent possible the same effect as would have been achieved by the invalid or unenforceable provision.

18. STATUS OF PRE-CONTRACTUAL STATEMENTS

Each of the parties acknowledges and agrees that, in entering into the Contract it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to these terms and conditions or not) relating to the subject matter of the Contract, other than as expressly set out in the Contract.

19. ASSIGNMENT

19.1 The Client shall not, without the prior written consent of Diretto, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
19.2 Diretto may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.

20. NO PARTNERSHIP OR AGENCY

Nothing in the Contract is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

21. RIGHTS OF THIRD PARTIES

The Contract is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns and is not intended to benefit, or be enforceable by, anyone else.

22. NOTICES

Notice given under the Contract shall be in writing, sent for the attention of the person, and to the address, email address or fax number, provided in writing by that party from time to time (or such other address, email address, fax number or person as the relevant party may notify to the other party) and shall be delivered personally, sent by email, sent by fax or sent by pre-paid, first-class post or recorded delivery. A notice is deemed to have been received, if delivered personally, at the time of delivery, in the case of email and fax, at the time of transmission, in the case of pre-paid first class post or recorded delivery, 48 hours from the date of posting and, if deemed receipt under this clause 22 is not within business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is a business day), at 9.00 am on the first business day following delivery. To prove service, it is sufficient to prove that the notice was transmitted by email or fax, to the email address or fax number of the party or, in the case of post, that the envelope containing the notice was properly addressed and posted.

23. GOVERNING LAW AND JURISDICTION

23.1 The Contract and any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the law of England and Wales.
23.2 The parties irrevocably agree that the courts of England and Wales shall have non-exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter.
This agreement has been entered into on the date stated at the beginning of it.