MailShout Advertising Agreement

Introduction

This MailShout Advertising Agreement sets out the terms on which Cineworx Ltd, trading as MailShout, provides advertising, design, distribution, tracking, reporting and related services to business advertisers.

This Agreement applies to business customers only.

By placing an order, signing an order form, accepting a quotation, accepting these terms electronically, or otherwise instructing MailShout to proceed with advertising services, the Advertiser agrees to be bound by this Agreement.

This Agreement should be read together with the individual order, quotation or booking confirmation issued by MailShout, which will identify the applicable Territory, category, fees and any other campaign-specific details.

Contents

1. Who we are

MailShout is operated by:

Registered company

Cineworx Ltd, trading as MailShout

Registered office

9 Bessemer Crescent, Aylesbury, HP19 8TF

Website

https://www.mailshout.co.uk

General enquiries

hello@mailshout.co.uk

Telephone

0203 627 0437

Companies House registration number

15046096

Cineworx Ltd is registered in England and Wales.

In this Agreement, references to “MailShout”, “we”, “us” and “our” mean Cineworx Ltd trading as MailShout.

2. Definitions

In this Agreement:

• “Advertiser” means the business purchasing advertising services from MailShout.
• “Agreement” means these terms together with the relevant quotation, order form, booking confirmation or other written agreement between MailShout and the Advertiser.
• “Artwork” means the advertisement, design, graphics, text, images, logos and other creative materials prepared for a Campaign.
• “Campaign” means one scheduled MailShout print and distribution campaign.
• “Campaign Date” means the intended month or distribution period for a Campaign.
• “Contract Term” means the 12-month minimum term of the Agreement.
• “Direct Competitor” means a business offering substantially the same or directly competing products or services to the same target customers, as reasonably determined by MailShout.
• “Directory Listing” means the Advertiser’s listing within the MailShout online business directory.
• “Distribution” means delivery of the printed MailShout publication using Royal Mail Door to Door or another distribution method expressly agreed by MailShout.
• “Exclusive Category” means the business category allocated to the Advertiser within the contracted Territory.
• “Territory” means the geographic advertising area identified in the Advertiser’s booking or order.
• “Working Day” means Monday to Friday excluding public holidays in England.

3. The Agreement

The Agreement begins when MailShout accepts the Advertiser’s booking, order, quotation acceptance or other instruction to proceed.

The Advertiser confirms that it is entering into the Agreement wholly or mainly for purposes relating to its trade, business, craft or profession.

The Agreement is therefore a business-to-business agreement.

Consumer cancellation and cooling-off rights do not apply.

The Contract Term is 12 months.

The Agreement does not automatically renew.

Unless a new agreement is entered into, the Agreement ends at the conclusion of the Contract Term once all payment and other obligations have been satisfied.

4. Campaign frequency

The standard MailShout annual advertising programme consists of six Campaigns during the 12-month Contract Term.

Campaigns are ordinarily scheduled for:

• February
• April
• June
• August
• October
• December

The precise production and Distribution dates within those months are indicative and may vary.

MailShout may reasonably adjust Campaign dates where required for operational, production, distribution or commercial reasons.

5. Services included

Subject to the individual booking, MailShout services may include:

• One advertising position within the contracted Territory.
• Category exclusivity in accordance with this Agreement.
• Design and preparation of the Advertiser’s Artwork.
• Printing.
• Distribution.
• QR code tracking.
• Optional call tracking.
• Monthly campaign reporting.
• A MailShout Directory Listing.
• Campaign administration and advertiser support.

Specific services included in an Advertiser’s package will be confirmed in the applicable quotation, order or booking confirmation.

6. Fees and payment options

The applicable price will be the price confirmed in the Advertiser’s quotation, order or booking confirmation.

Advertisers may normally choose between:

• monthly payment; or
• annual payment.

Annual payment may qualify for a discount.

The amount of any annual-payment discount will be the discount stated in the quotation, order, booking confirmation or pricing applicable when the Agreement is entered into.

Prices are fixed for the 12-month Contract Term unless the parties agree otherwise in writing.

A future change to MailShout’s general pricing will not alter the agreed price during an existing Contract Term.

7. Monthly payments

Where the Advertiser selects monthly payment:

• payments are collected in advance;
• the monthly payment arrangement is a method of paying the total contractual commitment and does not create a month-to-month contract;
• the Advertiser remains committed to the full 12-month Contract Term.

The Advertiser may not cancel the Agreement merely by cancelling a Direct Debit, payment authority or other payment method.

Cancellation of a payment instruction does not cancel the underlying Agreement or the Advertiser’s liability for sums due.

8. Annual payments

Where the Advertiser selects annual payment, the agreed annual fee is payable in advance in accordance with the invoice or payment instructions issued by MailShout.

Any annual-payment discount applies only where the annual fee is paid in accordance with the agreed payment terms.

9. Late or failed payments

If a payment becomes overdue, MailShout may contact the Advertiser and request payment.

Where payment remains outstanding for 7 days, MailShout may issue a formal payment reminder.

Where payment remains outstanding for 14 days or more, MailShout may:

• suspend services;
• suspend future advertising placements;
• suspend reporting or tracking services;
• withhold new Artwork or design work;
• remove or suspend benefits associated with the Agreement;
• take reasonable steps to recover the outstanding debt.

MailShout may also charge interest, compensation or reasonable debt recovery costs where permitted by applicable law.

Continued non-payment constitutes a material breach of this Agreement.

MailShout may terminate the Agreement for material non-payment without releasing the Advertiser from amounts already due or from its contractual liability under the minimum Contract Term.

10. 12-month commitment

The Advertiser enters into a firm 12-month minimum commitment.

There is no general right to cancel the Agreement during the Contract Term.

If the Advertiser stops using the services, refuses future Campaigns, cancels its payment instruction or otherwise seeks to leave before the end of the Contract Term without a contractual right to do so, the Advertiser remains liable for the remaining amounts payable under the Agreement.

MailShout’s rights under this clause are subject to any rights that cannot lawfully be excluded.

11. Category exclusivity

MailShout provides category exclusivity within the contracted Territory.

MailShout will not knowingly place two Direct Competitors in the same Territory during the same Campaign.

Different businesses that may fall within a broad industry or retail classification are not necessarily Direct Competitors.

For example, businesses selling different products to materially different customers may operate within the same broad retail category.

MailShout will reasonably determine whether two businesses directly compete for the purposes of category exclusivity.

The Advertiser acknowledges that category boundaries cannot always be defined solely by generic industry labels.

12. Scope of exclusivity

Exclusivity applies only to:

• the Advertiser;
• the agreed Exclusive Category;
• the contracted Territory; and
• the applicable Contract Term.

Exclusivity does not automatically extend to neighbouring or newly created Territories.

If MailShout changes, subdivides or creates Territories, the Advertiser does not automatically acquire exclusivity in any additional Territory.

Additional Territories must be separately booked.

13. Changes of business location

The Agreement relates to the Territory booked by the Advertiser.

If the Advertiser relocates its business premises during the Contract Term, this does not create an automatic right to transfer the advertising booking to another Territory.

Any additional or replacement Territory would require MailShout’s written agreement.

14. Artwork and design

MailShout will ordinarily design the Advertiser’s advertisement as part of the service.

The Advertiser must provide all information reasonably required to prepare the Artwork, including where applicable:

• logo files;
• business details;
• contact details;
• photographs;
• offers;
• prices;
• promotional wording;
• website addresses;
• required disclaimers.

The Advertiser is responsible for ensuring supplied information is complete and accurate.

15. Design revisions

The service includes:

• preparation of the initial design; and
• up to two reasonable rounds of amendments to that design.

Additional revisions, substantial redesigns or requests outside the agreed scope may be chargeable.

MailShout will inform the Advertiser before charging for additional design work.

16. Changes during the Contract Term

Reasonable updates to existing Artwork during the Contract Term, including changes to:

• telephone numbers;
• website details;
• contact information;
• logos;
• branding;
• offers; or
• business details

may be made without an additional design charge.

However, changes can only take effect where production deadlines permit.

If a Campaign has already entered final production, printing, booking or Distribution, requested changes may not take effect until the following Campaign.

MailShout is not responsible for information that remains in a Campaign because the Advertiser supplied updated information after the relevant production deadline.

17. Artwork approval

MailShout will provide a proof of Artwork for approval before printing.

The Advertiser must review:

• spelling;
• telephone numbers;
• website addresses;
• prices;
• offers;
• dates;
• regulatory wording;
• images;
• logos;
• all advertising claims.

The Advertiser has 3 Working Days after the proof is sent to notify MailShout of amendments or approval.

If the Advertiser does not respond within 3 Working Days, MailShout may treat the Artwork as approved and proceed to production.

Once Artwork has been approved, or deemed approved, the Advertiser accepts responsibility for the content shown in the approved Artwork.

18. Artwork ownership

Unless otherwise agreed in writing, MailShout owns the editable working files and original design files created by MailShout.

Until all amounts due under the Agreement have been paid, MailShout retains all rights in Artwork created by MailShout.

Once the Advertiser has paid all sums due, the Advertiser may use the finished Artwork created for it for its own legitimate marketing purposes.

Editable source files, templates and working design files are not included unless separately agreed in writing.

19. Advertiser-supplied materials

The Advertiser warrants that it owns, or has permission to use, all materials supplied to MailShout.

This includes:

• logos;
• photographs;
• graphics;
• illustrations;
• trade marks;
• written material;
• third-party content.

The Advertiser must not supply material that infringes another person’s intellectual property or other legal rights.

The Advertiser is responsible for claims arising from material it supplies where MailShout has used that material in accordance with the Advertiser’s instructions.

20. Advertising claims and legal compliance

The Advertiser is responsible for ensuring its advertisement and business practices comply with applicable law and regulation.

The Advertiser is responsible for the accuracy and legality of:

• advertising claims;
• prices;
• promotions;
• discounts;
• guarantees;
• testimonials;
• qualifications;
• licences;
• descriptions of products or services;
• regulated claims;
• terms applicable to customer offers.

Where applicable, the Advertiser must ensure its advertising complies with relevant advertising rules and industry-specific requirements.

MailShout’s preparation or approval of Artwork does not constitute legal or regulatory approval of the Advertiser’s claims.

21. Right to refuse advertising

MailShout reserves the right to refuse, remove or require amendment of advertising that it reasonably considers:

• unlawful;
• fraudulent;
• misleading;
• offensive;
• discriminatory;
• defamatory;
• unsafe;
• inappropriate;
• likely to infringe third-party rights;
• damaging to MailShout’s reputation;
• inconsistent with MailShout’s reasonable editorial or brand standards.

MailShout may also require evidence supporting material advertising claims before publication.

22. Printing

Printed materials may differ slightly from digital proofs.

Reasonable variations may occur in:

• colour;
• brightness;
• contrast;
• paper;
• trim;
• finish;
• positioning.

Such normal production variations do not constitute a defect or breach of this Agreement.

23. Material printing errors

If MailShout is responsible for a material printing or production error that significantly affects the usefulness of an advertisement, MailShout will assess the circumstances reasonably.

Depending on the nature and severity of the error, MailShout may provide an appropriate remedy such as:

• corrected Artwork;
• inclusion in a replacement Campaign;
• another reasonable advertising credit; or
• an appropriate partial refund.

Any remedy will be proportionate to the affected Campaign.

Minor errors or normal printing variations that do not materially affect the advertisement do not entitle the Advertiser to a refund.

24. Distribution

Distribution is ordinarily undertaken using Royal Mail Door to Door services.

Household, address and delivery figures shown by MailShout are estimates based on the information available when the Campaign is planned.

MailShout does not guarantee delivery to an exact number of properties.

Actual delivery volumes may differ because of factors including:

• changes to Royal Mail delivery data;
• inaccessible addresses;
• changes to delivery points;
• postcode changes;
• new developments;
• operational requirements;
• distribution exclusions;
• events outside MailShout’s reasonable control.

25. Distribution timing

Campaign and Distribution dates are indicative rather than guaranteed.

Dates may vary because of:

• Royal Mail operational requirements;
• production schedules;
• printing delays;
• weather;
• industrial action;
• transport disruption;
• operational circumstances;
• events outside MailShout’s reasonable control.

A reasonable change to a Campaign or Distribution date does not constitute a breach of the Agreement.

26. Insufficient Campaign participation

MailShout’s advertising model relies on a shared publication containing multiple advertisers.

MailShout may, at its discretion, reschedule a Campaign where there are insufficient confirmed advertisers to produce the publication to the intended commercial or production standard.

MailShout may move the affected Campaign to a later suitable Campaign period.

Reasonable rescheduling under this clause does not constitute a breach of the Agreement and does not create an automatic right to cancel or obtain a refund.

MailShout will use reasonable efforts to notify affected Advertisers of material scheduling changes.

27. Royal Mail or distribution failure

MailShout will use reasonable endeavours to arrange Distribution in accordance with the Campaign plan.

MailShout cannot guarantee the performance of third-party distribution providers.

If a material Distribution failure occurs, MailShout will investigate and, where appropriate and reasonably practicable, seek a remedy from the relevant supplier or arrange an appropriate alternative remedy for the Advertiser.

MailShout’s liability remains subject to the limitation of liability provisions in this Agreement.

28. No guarantee of results

Advertising performance depends on many factors outside MailShout’s control.

MailShout does not guarantee:

• enquiries;
• telephone calls;
• QR scans;
• website visits;
• leads;
• customers;
• appointments;
• sales;
• revenue;
• profit;
• return on investment;
• any other commercial result.

A Campaign that produces fewer responses than the Advertiser expected does not constitute a failure by MailShout to provide the contracted advertising services.

29. QR tracking

Campaign Artwork may include a trackable QR code.

Where QR tracking is provided, reporting may include information such as:

• number of scans;
• date and time of scans;
• device type;
• browser type;
• approximate geographic location.

Tracking data is intended to provide useful campaign-performance information but may not capture every interaction generated by an advertisement.

MailShout does not guarantee the completeness or accuracy of third-party or device-dependent tracking information.

30. Call tracking

A dedicated call-tracking number may be provided where requested and where the service is available.

Call tracking is optional unless expressly included in the Advertiser’s package.

Calls are not routinely recorded.

Call-tracking reports may include information such as:

• number of calls;
• call time;
• call duration;
• other non-content call statistics supported by the applicable provider.

MailShout may change call-tracking providers where reasonably necessary.

31. Reporting

MailShout will ordinarily provide advertising performance reporting monthly.

Reports may include available QR tracking, call tracking and other campaign-performance information.

Reports are intended to assist advertisers in assessing campaign engagement.

Tracking figures do not represent guaranteed or complete measurements of all business generated by the Campaign.

32. Directory Listing

An Advertiser may receive a listing in the MailShout online business directory as part of its advertising package.

The Directory Listing may continue indefinitely after the paid Contract Term without an additional listing fee.

However, continued inclusion is subject to:

• the MailShout directory continuing to operate;
• the business remaining genuine and contactable;
• the information remaining reasonably accurate;
• the listing complying with MailShout’s policies;
• the Advertiser not requesting removal.

MailShout may amend, suspend or remove a Directory Listing where reasonably necessary, including where:

• information has become materially inaccurate;
• the business has ceased trading;
• the listing is unlawful or misleading;
• the website or directory structure materially changes;
• continued publication would create legal, technical or reputational risk.

No guarantee is given that the directory or any particular listing will remain online permanently.

33. Confidentiality

Each party will take reasonable steps to keep confidential non-public commercial information received from the other in connection with the Agreement.

This may include:

• negotiated pricing;
• commercial terms;
• unpublished Campaign information;
• confidential business information.

This obligation does not apply to information that:

• is already public;
• was lawfully known before disclosure;
• is independently developed;
• must be disclosed by law;
• is disclosed to professional advisers under appropriate duties of confidentiality.

34. Limitation of liability

Nothing in this Agreement excludes or limits liability where it would be unlawful to do so.

Subject to that:

MailShout is not liable for:

• loss of anticipated profits;
• loss of anticipated sales;
• loss of business opportunity;
• loss of goodwill;
• indirect or consequential losses;
• losses caused by inaccurate Advertiser-supplied information;
• losses resulting solely from an Advertiser’s failure to approve or check Artwork;
• outcomes that depend on the commercial effectiveness of advertising.

For a claim arising from a specific Campaign, MailShout’s total liability will not exceed the amount paid or payable by the Advertiser in respect of the affected Campaign.

Nothing in this clause limits any liability that cannot lawfully be limited.

35. Refunds

Fees are generally non-refundable once services have been provided, production has commenced or costs have been incurred.

A lack of advertising response, enquiries, sales or return on investment does not create a right to a refund.

Where MailShout has materially failed to provide a contracted service and cannot reasonably remedy that failure, MailShout may provide an appropriate:

• replacement service;
• Campaign credit;
• partial refund; or
• other reasonable remedy.

Any refund or credit will be proportionate to the affected element of the service.

36. Force Majeure

MailShout will not be responsible for delay or failure caused by circumstances outside its reasonable control.

These may include:

• fire;
• flood;
• severe weather;
• natural disaster;
• epidemic or pandemic;
• war;
• terrorism;
• civil disturbance;
• industrial action;
• Royal Mail disruption;
• transport disruption;
• utility failure;
• internet or telecommunications failure;
• supplier failure outside MailShout’s reasonable control;
• government action;
• changes in law;
• other comparable events outside MailShout’s reasonable control.

Where possible, MailShout may reschedule affected Campaigns.

37. Business closure or insolvency

The Advertiser must notify MailShout promptly if it ceases trading or becomes subject to formal insolvency proceedings.

MailShout may terminate the Agreement immediately where the Advertiser:

• ceases trading;
• enters liquidation;
• enters administration;
• becomes subject to an insolvency procedure;
• is dissolved;
• in the case of an individual or sole trader, becomes bankrupt.

Any sums already due remain payable.

Any further rights regarding outstanding contractual sums are subject to applicable insolvency law.

38. Termination by MailShout

MailShout may terminate or suspend the Agreement where the Advertiser:

• materially breaches the Agreement;
• fails to pay amounts due;
• supplies unlawful or materially misleading advertising;
• repeatedly fails to cooperate with Campaign production;
• uses MailShout services for unlawful purposes;
• acts in a way that creates a serious legal or reputational risk for MailShout.

Where the breach can reasonably be remedied, MailShout may first give the Advertiser an opportunity to remedy it.

Termination caused by the Advertiser’s breach does not automatically release the Advertiser from outstanding payment obligations.

39. Renewal

The Agreement does not renew automatically.

MailShout may contact the Advertiser approximately 90 days before the end of the Contract Term to discuss renewal.

Any renewal will require a new agreement or other express written confirmation.

Pricing and other commercial terms applicable to a renewal may differ from the expiring Agreement.

40. Data protection

Each party must comply with applicable data protection law when processing personal information in connection with the Agreement.

MailShout’s handling of personal information is described in its Privacy Policy.

41. Notices

Formal notices relating to this Agreement may be sent by:

• email to the usual business contact address; or
• post to the registered or principal business address supplied by the relevant party.

The Advertiser is responsible for ensuring MailShout has current contact information.

Routine campaign correspondence, Artwork proofs and payment communications may be sent electronically.

42. Dispute resolution

If a dispute arises, both parties should first attempt in good faith to resolve it through direct discussion.

If the dispute has not been resolved within 14 days after one party formally raises it, either party may propose mediation or another appropriate form of alternative dispute resolution.

Mediation is not mandatory unless both parties agree to participate.

Nothing in this clause prevents either party from commencing court proceedings where reasonably necessary, including proceedings to recover an unpaid debt.

43. Entire agreement

This Agreement and the relevant quotation, booking confirmation or order constitute the entire agreement between the parties in relation to the advertising services.

The Advertiser should not rely on oral statements or representations that are not incorporated into the Agreement.

Nothing in this clause excludes liability for fraud or fraudulent misrepresentation.

44. Variations

Any material variation to the Agreement must be agreed in writing.

Routine operational communications, Artwork approvals and Campaign scheduling changes do not require a formal contract amendment.

45. Electronic acceptance

The parties agree that the Agreement may be formed and accepted electronically.

Acceptance may include:

• electronic signature;
• acceptance through an online system;
• written acceptance by email;
• acceptance of a quotation or booking confirmation;
• another electronic method clearly demonstrating agreement.

Electronic acceptance has the same contractual effect as a paper signature where legally valid.

46. Assignment

The Advertiser may not transfer or assign its rights or obligations under the Agreement to another business without MailShout’s prior written consent.

MailShout may transfer the Agreement as part of a genuine transfer, restructuring or sale of its business, provided this does not materially reduce the Advertiser’s contractual rights.

47. Third-party rights

Unless expressly stated otherwise, a person who is not a party to the Agreement has no right to enforce its terms.

48. Severability

If any provision of this Agreement is held to be invalid, unlawful or unenforceable, the remaining provisions will continue in effect.

49. No waiver

If either party delays or fails to exercise a contractual right, this does not automatically waive that right.

50. Governing law and jurisdiction

This Agreement is governed by the laws of England and Wales.

The courts of England and Wales have jurisdiction in relation to disputes arising from or in connection with this Agreement.

51. Contact us

Questions concerning this Agreement should be directed to:

Organisation

MailShout — a trading name of Cineworx Ltd

General enquiries

hello@mailshout.co.uk

Telephone

0203 627 0437

Website

https://www.mailshout.co.uk

Registered office

9 Bessemer Crescent, Aylesbury, HP19 8TF

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