ADVO, INC.
GENERAL TERMS
For
DIRECT MAIL DISTRIBUTION
1. DEFINITIONS
(A) As used in this contract, "ADVO", "we", and "our" means ADVO,
Inc. "You" and "your" refers to the Client contracting with ADVO.
(B) "Copy Deadline Date" is the date by which you are to submit the
proposed text and artwork for your advertising piece to us. This date is
set by the local ADVO branch which serves you.
(C) "DAL" means Detached Address Label.
(D) "Final price" means the total price, adjusted by the price of
additional services and differences between actual and estimated piece
weight, and actual and estimated address counts at the time we mail your
advertising pieces.
(E) "Marriage Mail" means ADVO's third class Marriage Mail program,
its Mailbox Values program, or both.
(F) "Postal Service" means the United States Postal Service.
(G) "Proof Deadline Date" means the date by which you are to submit
your final advertising proof to us. This date is set by the local ADVO
branch which serves you.
(H) "Services" means all services for which you contract, or which
are performed by ADVO to correct your advertising piece or make it
mailable.
(I) "Total price" means the total amount you will pay to ADVO for all
contracted Services.
2. SERVICES TO BE PERFORMED BY ADVO
(A) MAILING SERVICES. We will distribute your advertising pieces by
mail as part of our Marriage Mail program in the Markets, Zones, or ZIP
Code areas, and for the In-Home Dates, which we offer. Services which we
will perform include printing and addressing labels, merging the mailing
pieces, bundling, packaging, and tagging according to Postal Service
requirements, and depositing the mail with the Postal service.
(B) PRINTING SERVICES. If we have agreed as a part of this contract
to provide layout, artwork, typesetting or printing services, all of these
services will be completed in accordance with ADVO's normal practices and
standards.
(C) IN-HOME DATE. An In-Home Date is the date or dates by which
advertising which we deposit with the Postal Service is expected to arrive
at its addressed destination. ADVO cannot guarantee Postal Service
delivery by the In-Home Date. We are not responsible if advertising does
not reach its addressed destination by the In-Home Date.
3. YOUR OBLIGATIONS
(A) PREPAYMENT AMOUNT. Unless we have agreed in writing to different
payment terms, you will prepay for all services, including printing.
(i) For DETACHED ADDRESS LABELS ("DAL"), you will prepay the
total price of each mailing by the Proof Deadline Date.
(ii) For TURNKEY PRODUCTS, you will prepay the total price for
each mailing by the Proof Deadline Date. However, if you contract for
Turnkey Products to be mailed on three or more In-Home Dates, you may
instead pay Twenty-Five percent (25%) of the total price at least three (3)
days before the Proof Deadline Date for the first In-Home Date. The
prepayment will be allocated evenly to each In-Home Date. You will then
pay the balance of the total price for each In-Home Date at least nine (9)
days before that In-Home Date.
(iii) For ALL OTHER MAILING SERVICES, you will prepay the total
price for each mailing at least nine (9) days before each In-Home Date.
(B) DELIVERY OF PREPRINTED MATERIAL. Unless we are to provide
printing services to you as a part of this contract, you will deliver
sufficient preprinted advertising pieces to us to enable us to complete
your order. The quantity must include one piece for each address on
ADVO's mailing list, plus any additional amount requested by us to account
for spoilage or similar loss. All pieces must meet our standards for
processing and mailing, and you must deliver the pieces to us by the date
set by the local ADVO branch which serves you. Sufficient quantity means
one advertising piece for each residential household on ADVO's mailing list
in the ZIP Code areas selected by Client plus such additional quantities as
are requested by ADVO for spoilage or similar loss.
(C) ARTWORK. If we have agreed as part of this contract to prepare
camera-ready mechanicals, proofs with color break indications, or both,
then you will submit your proposed text and artwork to us by the Copy
Deadline Date set by the local ADVO branch which serves you. You will also
submit your final written approval of all proofs supplied to you by the
Proof Deadline Date set by that same local branch. If we have agreed as
part of this contract to provide printing services only, then you will
submit your camera-ready mechanicals and proofs with completed color break
indications or separations to us by the Proof Deadline Date. We retain
title to all rights in artwork produced by us under this contract.
(D) DIGITAL ART. ADVO will not be responsible for the accuracy or
reproduction quality of any client supplied digital art.
(E) ADDITIONAL SERVICES. If we agree to provide additional services,
such as preparing camera-ready mechanicals or proofs with color break
indications, preparing or mailing different versions, special processing,
non-image area printing, four-color printing, author's alterations to final
proofs, or folding of your pieces; or if we determine additional services
are necessary to correct the advertising price or make it mailable; then
those services will be provided for an additional charge. All additional
charges will be made at our then-current rates. However, we will not be
obligated to perform additional services unless we agree in writing. If we
perform additional services, either at your request, even if your request
is not in writing, or because we determine the services are necessary to
correct the piece or make it mailable, you will pay all additional charges.
We will not provide press checks for four color printing.
(F) PIECE WEIGHT AND QUANTITY ESTIMATES. All piece weights and
quantities are estimates, and are subject to verification by the Postal
Service. Your total price will be adjusted according to the actual weight
of advertising pieces and the number mailed, calculated at the time we mail
them.
(G) FINAL BILLING. If the final price for a mailing exceeds your
prepayment, you will pay the difference upon demand.
(H) YOUR OBLIGATIONS IF YOU DEFAULT. If you do not pay us in a
timely manner, if you do not fulfill all your obligations under this
contract or any other contract between you and ADVO, if you become
insolvent or a petition in bankruptcy is filed by or against you, or if a
receiver is appointed for you, then you will be in Default. We will then
not be required to perform any of the services for which you contracted,
and you will be responsible for all additional costs which we incur because
of your Default, and we may cancel this contract. Additional costs may
include, among other charges, press time, paper stock, and additional
postage.
(I) DAL AND MAILBOX VALUES CANCELLATION.
(i) IF YOU CANCEL OR CHANGE ALL OR PART OF ANY OF YOUR
COMMITMENT FOR DAL OR MAILBOX VALUES SPACE, YOU WILL PAY US A CANCELLATION
FEE TO DEFRAY ADDITIONAL COSTS WHICH WE WILL INCUR. IN THAT EVENT, YOU
WILL PAY US: (A) IF YOU CANCEL OR MAKE A CHANGE BETWEEN NINETY (90) AND ONE
HUNDRED FIFTY (150) DAYS BEFORE THE IN-HOME DATE, TEN PERCENT (10%) OF THE
TOTAL PRICE OF THE CANCELED OR CHANGED PORTION OF THE MAILING; (B) IF YOU
CANCEL OR MAKE A CHANGE FORTY-SIX (46), BUT LESS THAN NINETY (90) DAYS
BEFORE THE IN-HOME DATE, TWENTY PERCENT (20%) OF THE TOTAL PRICE OF THE
CANCELED OR CHANGED PORTION OF THE MAILING; OR (C) SUBJECT TO PARAGRAPH II,
IF YOU CANCEL OR MAKE A CHANGE FORTY-FIVE (45) DAYS OR LESS BEFORE THE
IN-HOME DATE, FIFTY PERCENT (50%) OF THE TOTAL PRICE OF THE CANCELED OR
CHANGED PORTION OF THE PROGRAM.
(ii) IN THE EVENT YOU CANCEL OR CHANGE ALL OR PART OF ANY OF
YOUR COMMITMENT FOR DAL OR MAILBOX VALUES SPACE FORTY-FIVE (45) DAYS OR
LESS BEFORE THE IN-HOME DATE, AND FOR ANY REASON IT IS
IMPOSSIBLE OR IMPRACTICAL FOR US TO WITHDRAW YOUR PIECES FROM THE MAILING,
YOU WILL REMAIN LIABLE FOR, AND WILL PAY TO US, THE FULL FINAL PRICE AS
LIQUIDATED DAMAGES. ADVO SHALL NOT BE LIABLE IN THE EVENT THAT YOUR
MATERIALS ARE INCLUDED IN THE MAILING.
4. ADVERTISING AGENCY
(A) PAYMENT. If you are an advertising agency signing this contract
in the name of a client, or for the benefit of a client, you warrant that
you have received legal authority from your client to enter into the
contract on its behalf, and guarantee payment of all charges.
(B) ADVERTISING AGENCY DISCOUNT. If you are an advertising agency
signing this contract in the name of a client, or for the benefit of a
client, then you will receive ADVO's Advertising Agency Discount in effect
when we both sign the contract. However, you may apply the Advertising
Agency Discount only to Designated Services you purchase for that Client at
Rate Card rates. The discount will apply to the appropriate rate net of
postage.
(C) CENTRALIZED ACCOUNTS. If your Client contracts directly with us
for centralized purchasing or pricing of Services ("Central Contract"), you
may buy Designated Services for that Client at the rate to which he is
entitled under the Central Contract ("Central Contract Rate"), but with no
Advertising Agency Discount; or at your election you may buy Designated
Services for your Client at ADVO's Rate Card rate, less the Advertising
Agency Discount on that rate net of postage, but only if the net rate after
applying the discount is greater than your Client's Central Contract Rate.
(E) AGENCY SHORT-RATE. The Advertising Agency Discount is
conditioned upon your fulfillment of the volume, frequency, and payment
commitments you have made for your Client. IF YOU OR YOUR CLIENT DO NOT
PAY ADVO IN ACCORDANCE WITH THE PAYMENT TERMS OF THIS CONTRACT (OR OF THE
CENTRAL CONTRACT, IF ANY), OR IF YOU OR YOUR CLIENT DO NOT MAIL AT LEAST
THE VOLUME, OR AT THE FREQUENCY, YOU HAVE AGREED TO, THEN YOU WILL NOT BE
ELIGIBLE FOR THE ADVERTISING AGENCY DISCOUNT FOR ADDITIONAL ORDERS PLACED
UNDER THE CONTRACT, AND YOU WILL PROMPTLY PAY ADVO, UPON ITS DEMAND, THE
AMOUNT OF THE DISCOUNT PROVIDED TO YOU FOR ORDERS PLACED UNDER THE
CONTRACT, RETROACTIVE TO THE FIRST ORDER.
5. ZONE SELECT AND ZIP CODE SELECT PRICING
Zone Select and ZIP Code Select Programs ("Pricing Programs") permit you to
select Market level pricing or National level pricing options ("Pricing
Options"). You must fulfill the criteria for each Pricing Program, and the
volume and frequency for each Pricing Option separately. Your use of these
Pricing Programs and Pricing Options is governed by our Zone Select and ZIP
Code Select policies in effect at the time you contract with us.
6. CONTRACT FULFILLMENT
(A) SHORT-RATE. Your rate under this contract is based upon your
volume and frequency commitment. IF YOU DO NOT MAIL AT LEAST THE VOLUME,
OR AT THE FREQUENCY, YOU HAVE AGREED TO, THEN YOU WILL PROMPTLY PAY US,
UPON OUR DEMAND, AN AMOUNT EQUAL TO THE DIFFERENCE BETWEEN THE RATE AGREED
TO AND OUR NORMAL RATE FOR THE VOLUME OR FREQUENCY ACTUALLY MAILED BY YOU,
RETROACTIVE TO YOUR INITIAL MAILING UNDER THE CONTRACT.
(B) INTERIM ADJUSTMENT. We may review your performance under this
agreement at any time during its term. If we decide that it is unlikely
that you will fulfill your volume and frequency commitment, we may
implement the paragraph above entitled Short-Rate for all mailings
completed at time of review, and adjust your rate for your remaining
mailings.
7. ZONE RESTRUCTURING
ADVO may restructure its Zones and Markets. You will continue to mail into
a Zone or Market for which you contracted if (i) a Zone or Market is not
restructured; or (ii) a Zone or Market is restructured and we determine
that the restructuring is not substantial, but you are able to select new
coverage similar to that which you had before restructuring. If we
substantially restructure a Zone or Market and you cannot select new
coverage similar to that which you had before restructuring, you will
continue to mail into the unrestructured Zones or Markets for which you
contracted. If there is a decrease in circulation because of our
restructuring, your volume or frequency discount will not be affected.
8. ADVERTISING CONTENTS
(A) SHARED MAIL. We have arranged for other advertisers' material to
be included in the Marriage Mail package. Our judgment as to the
suitability of your material or that of other advertisers, the placement of
advertising material within a Marriage Mail package, and all other matters
concerning design, handling, and delivery of the Marriage Mail package, is
conclusive. We may, without liability, refuse to mail your advertising
material if it appears to capitalize upon, tie in with, or otherwise take
advantage of the subject matter of any of our public service programs.
(B) INDEMNITY. You warrant that all advertising copy and artwork
which you supply or approve complies with federal, state and local laws,
ordinances and regulations. You will hold us harmless from all costs and
liability (including attorneys' fees and defense costs), product or service
claims, promises concerning the manufacture, distribution, consumer use, or
purchase of your products or services. You will also be exclusively
responsible for the entire cost of any coupons redeemed, and for compliance
with all applicable laws and regulations relating to couponing or
advertising activities concerning your products, services, and advertising
prices.
9. CANCELLATION OR MODIFICATION OF MARRIAGE MAIL PROGRAM
If we cancel or modify the Marriage Mail program for any reason, including
changing In-Home Dates, we may give you notice that all or a part of your
advertising pieces will not be mailed, or will be mailed for a changed
In-Home Date. We will refund any amount of your prepayment which was made
for services which we will not perform.
10. LIMITATION OF LIABILITY.
Our responsibility to you if we do not perform all of our obligations under
this contract is limited to the following:
(A) Subject to the additional restrictions in paragraphs 10B, 10C and
10D, we will only be responsible to return money which you prepaid to us
for services not performed, or if less, your actual out-of-pocket damages.
WE WILL NOT BE RESPONSIBLE FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL
DAMAGES WHICH YOU MAY INCUR.
(B) FAILURE TO MAIL. If we do not mail all or a portion of your
advertising material for an In-Home Date, our sole responsibility to you
will be limited to a reduction of the final price for the services we
performed for that In-Home Date to reflect the smaller number of pieces
mailed.
(C) PRINTING ERRORS. We will use reasonable efforts to deliver your
proof at least one (1) business day before the Proof Deadline Date. You
are solely responsible for timely correction of all printing errors on the
proof. If you do not correct the pr`oof, or if you do not return the
corrected and signed proof to us, then we may not print your advertising
pieces; or if we do print the pieces, the pieces may contain errors.
Printed pieces may have minor variations in color or shading from a proof
and are not a breach of this agreement by us. If we materially breach our
printing obligation, then we will only be responsible to offer you, at our
election and expense (i) a correction of the piece for the same In-Home
Date, (ii) preparation and distribution of the piece on a future available
In-Home Date which is reasonably acceptable to you, or (iii) for DALs,
preparation of a substitute product, which we will select, for distribution
as an insert in the Marriage Mail package covering the same circulation for
the same In-Home Date or a future In-Home Date which is reasonably
acceptable to you.
(D) STORAGE RISK. All materials, including artwork which you supply,
will be received and stored by us at your risk. You will retain title to
all materials. Although we will take reasonable precautions to safeguard
your materials, we will not be responsible for any loss or damage to them
from any cause. You will insure all materials against all loss or damage.
11. EVIDENCE OF MAILING
If you request, in writing, written evidence of the mailing, we will
provide you with a Verification of Mailing. This is a document produced by
us, which certifies the deposit of your advertising pieces with the Postal
Service. This is the only evidence of mailing which we will provide.
12. PRINT AND PAPER
If we are to provide printing services to you and our cost for printing or
paper increases after the date of this contract, the price you will pay
under this contract will be immediately adjusted to
completely include the amount of our increase. You will pay the
difference between your adjusted price and the original price upon our
demand.
13. POSTAGE
If postal rates increase or are modified after the date of this contract so
that the cost to ADVO to mail your pieces increase, the price you will pay
for all mailings subsequent to the effective date of the postal rate
increase or modification will immediately be adjusted to completely include
the total amount of the cost increase to ADVO. You will pay the difference
between the adjusted price and the original price upon our demand.
14. TAXES
You will pay all taxes (except for taxes on our net income) which may be
imposed by any taxing authority, that relate to your purchases of services
under this contract, and that we may be responsible to collect or pay.
15. MISCELLANEOUS
(A) CONFIDENTIALITY. You will not disclose the terms of this
contract, including but not limited to pricing, duration, and volume or
frequency commitments, to a third party, except as required by law, or to
enforce your contract rights through legal process.
(B) ENTIRE AGREEMENT. This contract consists of these general terms
and the information on the reverse side. It is the entire agreement
between you and ADVO, and it supersedes all prior statements, agreements,
understandings, practices, and customs between us dealing with this
transaction. Changes must be in writing, and must be signed by both you
and ADVO.
(C) GOVERNING LAW. The laws of the State of Connecticut are to be
used to interpret and enforce this contract. Both you and ADVO consent to
personal jurisdiction in the state and federal courts of Connecticut
concerning any claims which relate to this contract.
(D) ASSIGNMENT. You may not assign or transfer any of your rights
under this agreement without our prior written authorization.
(E) MARKET COVERAGE. Contract rates based on frequency are valid
only for distribution into the Market(s) defined in this contract. If no
Market is defined, rates are valid only for distribution into the Market
where your primary facility is located.
(F) RESPONSE RATE. We do not guarantee or represent a response rate
for advertising mailed by us.
(G) CONTINUATION OF SERVICE. If you continue to use our services
after this contract has expired, al of the terms of this contract (other
than rate, frequency and volume) will remain in effect. If you do not
fulfill all of your obligations under this contract and we continue to
perform our services, that will not waive any of our rights if you do not
fulfill your obligations in the future.
(H) CAPTIONS. Captions which are used in this contract are for
reference only and will not affect its interpretation.
(I) ACCEPTANCE. If our authorized representative has signed this
contract, then our presentation of this contract to you is an offer to
contract under these terms and no others. You may accept our offer by
either (i) signing the contract; or (ii) performing any of your obligations
under the contract.