CONDITIONS OF SUPPLY
1. DEFINITIONS
In these conditions:
“Company” means Mail Solutions UK Limited, or any of its associated Companies;
"Customer" means the party with whom the Company contracts;
"Contract" means the contract made or to be made between the Company and the Customer subject to these conditions;
"Goods" means all or any of the goods which the Company is to sell in accordance with the Contract;
"Act of Insolvency" means any one or more of the following namely the passing of a resolution or the presentation or granting of a petition for the winding-up, bankruptcy or for the appointment of an administrator, the appointment of a receiver and/or manager or administrative receiver over the whole or any part of the Customer's undertaking and assets, the making of a proposal for a voluntary arrangement within the Insolvency Act 1986 or of a proposal for any other composition scheme or arrangement with or the calling by the Customer of any meeting of its creditors generally, the levying of execution or distress or diligence on any of its assets, the failure to its assets, the failure to pay its proper debts as and when due and anything analogous to any of the foregoing under the law of the jurisdiction where the Customer is established.
2. BASIS OF CONTRACT
2.1 Any quotation shall remain valid for a maximum period of thirty days from the date appearing thereon and may be withdrawn or altered by the Company at any time within such period without notice. Any quotation submitted by the Company amounts to an invitation to treat and not an offer.
2.2 The placing by the Customer of any order, written or oral, whether or not any quotation may have been submitted shall constitute an offer by the Customer. The contract shall not be taken to have come into existence unless and until the Company shall have accepted the Customer's order in writing.
2.3 These conditions shall form the terms and conditions of the Contract and shall apply to the exclusion of any terms or conditions whether put forward by or on behalf of the Customer in or on its order or otherwise or whether implied by law (insofar as the exclusion of the same is lawful).
2.4 Any alteration or qualification of these conditions shall not be effective unless expressly agreed to by the parties in writing.
2.5 Following acceptance by the Company of the Customer’s order, no cancellation and/or suspension, either in whole or in part, may be made by the Customer other than with the prior written consent of the Company and upon terms that the Customer shall indemnify the Company in full against all loss (including without limitation loss of profit) damages costs expenses and other liabilities awarded against or incurred by the Company as a result of or in connection with the cancellation and/or suspension.
3. INFORMATION SUPPLIED
The Customer shall be responsible to the Company for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Customer and for giving the Company any necessary information relating to the Goods to be supplied in the performance of the Contract within a sufficient time to enable the Company to perform the Contract in accordance with its terms. The Company shall be entitled to charge the Customer for all costs (and a reasonable element of profit) incurred by it where variations to the Goods are requested by the Customer and accepted by the Company.
4. DELIVERY AND PERFORMANCE
4.1 Any time or day quoted by the Company for delivery of all or any of the Goods is an estimate only and time shall not be of the essence. The Company shall not be liable for any failure to meet any such estimate, nor for any loss, whether financial or otherwise, resulting directly or indirectly therefrom. All or any of the Goods may be delivered in advance of the quoted date for delivery.
4.2 Where Goods are to be delivered in performance of the Contract, delivery of the Goods shall be made by delivery of the Goods by the Company to its warehouse upon notification to the Customer that it is doing so or by the Customer collecting the Goods at the Company's premises when the Company notifies the Customer that the Goods are ready for collection or, if some other place for delivery is agreed by the Company, by the Company delivering the Goods to that place, whichever is the sooner.
4.3 The Company reserves the right to deliver Goods by installments as the Customer and the Company may agree in writing and each delivery of Goods shall constitute a separate contract. Failure by the Company to deliver any one or more of the installments on any one or more occasions shall not entitle the Customer to treat the Contract as a whole as repudiated.
4.4 If the Customer fails to take delivery of or collect the Goods or fails to give the Company adequate delivery instructions at the time notified by the Company then the Company may (without prejudice to its other rights and remedies):
4.4.1 store the Goods (on its own or any third party's premises) and charge the Customer for its reasonable costs (including without limitation VAT, costs of storage, carriage and insurance); and/or
4.4.2 sell the Goods at any time and after deducting all cost expenses account to the Customer for any excess over the price under the Contract or charge the Customer for any shortfall between the Contract price and such costs expenses.
4.5 Where Goods are supplied under the Contract then:
4.5.1 any notification of short delivery or damage in transit must be made in writing to the Company within three days of the receipt of the Goods or the Customer’s Equipment.
4.5.2 any notification of non-delivery of Goods must be made in writing to the Company within seven days after the date of the Company's invoice.
4.5.3 The Company shall (subject to condition 4.6.4) at its sole option either make good by reimbursement of the whole or part of the price (and where relevant, as a deduction from any part of the price remaining unpaid) or make good by replacement any such short or non-delivery or damage notified as aforesaid and apart from such reimbursement or replacement and in the absence of notification as aforesaid the Company shall not be liable for any such short or non-delivery or damage in transit nor for any loss, financial or otherwise resulting directly or indirectly therefrom.
4.5.4 The Company shall be under no liability to the Customer in connection with any damage or loss in transit where delivery takes place at the Company's premises.
4.5.5 In the case of bespoke goods manufactured by the Company, every endeavour will be made to deliver the correct quantity. However, the Customer shall deem that delivery of a quantity not exceeding +/-10% of the quantity ordered constitutes satisfactory completion of the Company’s contractual obligations. Any variance will be charged to, or deducted from, the total order value and will be invoiced to the Customer accordingly.
5. DESCRIPTION
All descriptive and technical specifications, drawings, catalogues, illustrations and particulars of weight and dimensions supplied by either the Customer or the Company are approximate only and the Company reserves the right without notice to the Customer to alter such matters and to supply the Goods as so altered in performance of the Contract provided that alterations shall not materially affect the characteristics of the Goods supplied.
6. PRICE
6.1 Subject to any special terms agreed in writing between the Customer and the Company, the Company shall be entitled to invoice the Customer for the price of the Goods on or at any time after the Company has notified the Customer that the Goods are ready for collection or the Company has tendered delivery of the Goods. Notwithstanding the above the Company reserves the right to submit interim invoices to the Customer for any Goods delivered as may have been delivered as at the date of such interim invoice.
6.2 Any price quoted by the Company is based upon costs current as at the date appearing on the quotation. The actual price to be charged to the Customer under the Contract may be changed to take account of costs current as at the date of invoice.
6.3 Unless otherwise expressly stated in writing, all prices are exclusive of VAT which shall be payable at the rate prevailing at the relevant tax point.
6.4 The Customer shall make payment in full within thirty days foIlowing the date appearing on the Company's invoice notwithstanding that delivery of the Goods may not have taken place and the property in the Goods may not have passed to the Customer. Without prejudice to the foregoing, the Company reserves the right to alter the time for payment on not less than thirty days written notice. Payment shall be made in pounds sterling. The Customer shall not be entitled to set off any sums due to the Company against any sums owed by the Company to the Customer. Notwithstanding, the Company, at its sole discretion, shall be entitled to set-off sums due to the Customer against any sums owed by the Customer to the Company. Interest at the yearly rate of 4% over the base rate for the time being and from time to time of HSBC Bank plc will be charged on a daily basis on all monies outstanding after the due date until the actual date of payment (both before and after judgment).
6.5 Any delay or default by the Customer in making payment in respect of the Contract or in respect of any other contract between the Customer and the Company shall render all outstanding payments due from the Customer to the Company under the Contract payable forthwith and interest will be charged in accordance with condition 6.4 with immediate effect until the date of actual payment.
6.6 The Company may appropriate any payment made by the Customer to such of the Goods (or the goods or services supplied under any other contract between the Company and the Customer) as the Company may think fit (notwithstanding that the Customer may have specified that such payment is made in respect of particular Goods).
6.7 The Customer shall reimburse the Company for all costs and expenses (including without limitation legal costs on a full indemnity basis) incurred as a result of or in connection with failure by the Customer to make payment for the Goods by the due date.
7. RISK AND TITLE
7.1 Risk in the Goods shall pass to the Customer immediately on delivery to the Customer or into custody on the Customer's behalf or when property in and title to the Goods passes to the Customer, whichever is the sooner.
7.2 Notwithstanding delivery and the passing of risk property in and title to the Goods shall remain in the Company until the Company has received payment of the full price in cash or cleared funds of any outstanding invoice under the Contract or any other contract between the Company and the Customer.
7.3 Until property in and title to the Goods passes to the Customer:-
7.3.1 the Customer shall keep the Goods properly stored, protected and insured and separate from all or any other goods whether belonging to the Company, the Customer or any third party and shall ensure that such Goods are clearly identified as having been supplied by the Company;
7.3.2 the Company shall be entitled at any time forthwith to revoke the Customer's power to deal with the Goods and it shall automatically cease if the Customer shall commit or be subject to any Act of Insolvency;
7.3.3 the Customer shall not make any modification to the Goods or their packaging or alter, remove or tamper with any marks, numbers or other means of identification used on or in relation to the Goods;
7.4 Upon determination of the Customer's power to deal with the Goods, the Customer shall place the Goods at the disposal of the Company. The Company is hereby irrevocably authorised using such force as may be necessary, to enter upon any premises of the Customer for the purpose of removing the Goods.
7.5 If any of the foregoing provisions of this condition shall be invalid or unenforceable such invalidity or unenforceability shall not affect the remaining provisions.
8. TERMINATION AND SUSPENSION
Without prejudice to any rights and remedies available to it, the Company shall be entitled, without notice, either to terminate in whole or in part the Contract and/or any other contract with the Customer or to withhold performance of all or any of its obligations under the Contract or any other contract with the Customer (and all monies outstanding from the Customer to the Company become immediately due and payable) if:
8.1 any sum owing to the Company from the Customer on any account whatsoever shall be unpaid after the due date for payment (in which event the Company shall have a general lien for any such sum on all and any property of the Customer in its possession);
8.2 the Customer shall commit or be subject to any Act of Insolvency;
8.3 the Customer is in breach of the Contract or any other contract with the Company.
In the event of a suspension of performance of the Contract the Company shall be entitled, as a condition of resuming performance, to require pre-payment, or such security as it may require.
9. WARRANTY
9.1 The Company shall:
9.1.1 make good at its option by reimbursement of the whole or part of the price (and, where relevant, as a deduction from any part of the price remaining unpaid) or by replacement :
(i) subject to condition 5 any failure by the Goods to correspond with their specification at the time of delivery;
(ii) any defect developing under normal use in the Goods and due solely to faulty design (except where supplied by or on behalf of the Customer) materials and/or workmanship;
provided that:
9.1.3 any failure to meet the agreed specification is notified in writing to the Company within seven days from the date of delivery or (where the failure was not apparent on reasonable inspection) within a reasonable time after discovery of the failure and in any event such failure shall have been discovered within twelve months after delivery;
9.1.4 any such defect in design materials or workmanship shall have appeared within three months after delivery of the Goods and shall have been thereupon promptly notified to the Company in writing;
9.1.5 the Company shall be under no liability in respect of any defect in either the Goods arising from any drawings, design or specification supplied by the Customer or approved by it;
9.1.6 the Company shall be under no liability in respect of any defect in the Goods arising from fair wear and tear, the willful damage, negligence or use of the Goods in conditions for which they have not been designed to tolerate by a party other than the Company, failure to follow the Company's instructions (whether oral or in writing) relating to the Goods, misuse or alteration of the Goods without the Company's approval;
9.1.7 the Company shall be under no liability until any monies due from the Customer under the Contract have been paid; and
9.1.8 where the Customer alleges that Goods are defective, the Customer shall promptly make available the Goods to the Company, and if so required by the Company, shall promptly return at the Customer's risk and expense to the Company's premises for inspection and tests Provided always that where, as a result of such inspection, the Company considers in its reasonable opinion that such Goods are not defective solely by reason of faulty design, materials and/or workmanship, the Customer shall forthwith on demand reimburse the Company its reasonable costs incurred in connection with inspection and tests, but if such Goods are so defective then the Company shall reimburse the Customer the reasonable costs incurred in returning the Goods to the Company; and
9.1.9 the above warranty does not extend to services which have not been performed or materials which have not been manufactured by the Company in respect of which the Customer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Company and can be transferred.
9.2 Nothing in condition 9.1 shall operate so as to:-
9.2.1 exclude the Company's non-excludable liability in respect of death or personal injury caused by the negligence of the Company;
9.2.2 to exclude the application of section 12 of the Sale of Goods Act 1979;
9.2.3 to exclude liability for fraudulent misrepresentation.
9.3 The Company shall not be liable to the Customer in contract tort (including without limitation negligence) and/or breach of statutory duty for any loss or damage which the Customer may suffer by reason of any act, omission, neglect or default (including negligence) in the performance of the Contract by the Company its servants or agents, in a sum which is greater than the Contract price.
9.4 The Company shall not be liable to the Customer in contract tort (including without limitation negligence) and/or breach of statutory duty for any loss of profit and/or loss of production or any indirect or consequential (including economic) loss of any kind which the Customer may suffer by reason of any act, omission, neglect or default (including negligence) in the performance of the Contract by the Company, its servants or agents.
10 HEALTH AND SAFETY
For the purposes of Section 6(8) of the Health and Safety at Work Act Etc 1974 the Customer undertakes to comply with all instructions relating to the Goods received from the Company from time to time and to take such other steps sufficient to ensure, so far as is reasonably practicable, that the Goods will at all times be safe and without risk to health when being properly used by a person at work.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 if any claim is made against the Customer that the Goods infringe or that their use or resale infringes the patent copyright design right registered design trade mark or other industrial or intellectual property rights of any other person or any claim is made in respect of passing off or unauthorised use of confidential information in relation to the Goods and/or their use or resale the Customer shall forthwith notify the Company in writing and the Company shall be given full control of any proceedings or negotiations in connection with any such claim. The Customer shall give the Company all reasonable assistance for the purposes of any such proceedings or negotiations and except pursuant to a final award, the Customer shall not pay or accept any such claim, or compromise any such proceedings or negotiations without the consent of the Company (which shall not be unreasonably withheld). The Customer shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Company may have in relation to such infringement.
11.2 If any process is to be applied to the Goods by the Company in accordance with a specification submitted by the Customer, the Customer shall (without prejudice the other rights and remedies of the Company) indemnify the Company in full against all loss, costs, damages, charges, expenses and other liabilities awarded against or incurred by the Company as a result in connection with :
11.2.1 any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person and/or for passing off and/or unauthorised use of confidential information which results from the Company's use of the Customer's specifications;
11.2.2 any other liability of any kind to any third party including without limitation for defective Goods, personal injury or death to the extent that it arises from the specification.
11.3 Subject to agreement to the contrary the Company retains copyright, design right, inventions, and all other proprietory rights (if any) subsisting in any document or other material produced by it in performance of the Contract.
12. GENERAL
12.1 It shall be the responsibility of the Customer to ensure that all requirements applicable to the Contract, whether statutory, regulatory, municipal and/or otherwise howsoever, (including without limitation any relating to the importation or use of the Goods in the country of destination and for the payment of duties thereon) are duly complied with. It shall be a condition precedent to the performance by the Company of its obligations under the Contract that all necessary licences, permits and consents shall have been obtained by the Customer.
12.2 Without prejudice to the generality of condition 13.1 the obtaining of any relevant exchange control consents shall be a condition precedent to the performance by the Company of any of its obligations under the Contract.
12.3 Neither party shall have any liability whatsoever for any failure to perform, or for any delay in the performance other than as to payment of any of its obligations under the Contract arising wholly or in part by reason of any factor beyond its reasonable control.
12.4 No failure or delay on the part of the Company to exercise any of its rights under the Contract shall operate as a waiver nor shall any waiver by the Company of any breach by the Customer of any of its obligations under the Contract affect the rights of the Company in the event of any further or additional breach or breaches.
12.5 The Contract is personal to the Customer, who shall not assign or in any way part with the benefit thereof without the Company's prior written consent. The Company may assign its rights under this Contract only if such assignment is on terms as advantageous to the Customer as those contained in this Contract.
12.6 The Company may perform any of its obligations by itself or though any appropriately qualified and experienced third party provided that any act or omission of any such third party shall be deemed to be the act or omission of the Company.
12.7 Subject to any provision or agreement to the contrary the Company shall be entitled to make public statements, issue publicity or similar regarding this Contract.
12.8 Each and every obligation contained in these conditions shall be treated as a separate obligation and shall be severally enforceable as such notwithstanding the non-enforceability of any other such obligation.
12.9 The conditions and the Contract shall not create or evidence, or be deemed to create or evidence, any agency or partnership between the Company on the one hand and the Customer or any third party on the other.
12.10 Subject to the rights which may accrue to any successor or permitted assigns of either party to the Contract, no provision of the Contract shall be construed as creating any right(s) enforceable by a third party and all third party rights implied by law are, to the extent permissible by law, excluded from the Contract.
12.11 Any notice required to be given in writing under the Contract shall be given, where possible, by facsimile transmission and otherwise by first class post addressed to the registered office of the party for which it is intended, or to such other address as may be notified in writing in accordance herewith for the purpose, and shall be deemed to have been received, in the case of a facsimile transmission, upon transmission and, in the case of a letter, forty-eight hours after posting. In proving service by letter, it shall be sufficient to show that the envelope containing the notice was properly addressed and stamped and duly posted.
12.12 The Contract shall be governed by English law.
12.13 The parties irrevocably submit to the exclusive jurisdiction of the English Courts, save in the case of a Customer who has no assets within the jurisdiction of the English Courts and who is established in a country which will not enforce the judgment of the English Courts. In those circumstances the Company may if it chooses refer any disputes arising out of the Contract to arbitration under the Rules of Conciliation and Arbitration of the International Chamber of Commerce such arbitration to take place in London.
13. DATA PROTECTION
13.1 The following words shown in italics are defined in the Data Protection Act 1998 (“the Act”).
13.2 Where the Customer or his representatives provides the Company with personal data (“data”), the Customer and his representatives hereby understand that the data will be held securely in confidence and processed for the purpose of carrying out the Company’s business and associated activities, namely the supply of envelopes and/or other mailing services. In considering any application for credit, the Customer and his representatives accept that the Company may consult with and disclose certain data to credit reference agencies, banks, credit insurers and other responsible organisations (“third parties”) outside of the Company’s business, and that such third parties may process the data. The Customer and his representatives understand that under the Act, they may apply in writing to the Company in order to request a copy of all the data held by the Company on the Customer or his representatives. The Company agrees to disclose such information upon payment of an appropriate fee.
13.3 The Customer and his representatives agree that the Company may use any data held to contact the Customer or his representatives with details of other products and services. The Customer and his representatives understands that unless they object in writing, the Company may use data for such purposes to contact the Customer and his representatives by post, telephone, fax, e-mail, via the internet or other means of communication.
