In these conditions MTS LLP, otherwise known as Mailing Technology & Support Ltd is called ‘the Company’ and any individual firm, company or other party with whom the Company contracts is called ‘the Customer’. The contract is personal to the Customer who shall not assign the benefit whereof without the Company’s written consent.2. Quotations
Any quotation given by the Company is only an invitation to the Customer to make an offer and no order of the Customer placed with the Company in pursuance of a quotation or otherwise shall be binding on the Company unless and until it is accepted by the Company in accordance with these terms and conditions. Any contract made between the Company and the Customer (hereinafter called ‘the Contract’) shall incorporate and be subject to these conditions according to their provisions. No purchase conditions of the Customer shall be valid or apply unless expressly accepted in writing by a Director of the Company.3. Prices
Unless it is a term of the Contract that the price quoted by the Company shall remain fixed, the price shall be the Company’s ruling at the date of dispatch of the goods.
Whilst the Company will make every endeavour to comply with any date or dates for dispatch or delivery of the goods stated in the Contract, such date or dates shall constitute only statements of expectation and shall not be binding on the Company. If the Company fails to dispatch or deliver the goods by such state or dates failure shall not constitute a breach of the Contract and the Customer shall not be entitled to treat the Contract as thereby repudiated or to rescind it or any related contract in whole or part or claim damages for such failure.
a) Unless otherwise provided in the Contract, delivery shall be to the Customer’s premises.
b) Unless otherwise provided in the Contract, the price of goods does not include the cost of offloading the goods which shall be arranged by the Customer and performed at his sole expense and risk.6. Risk
a) Where the Company itself delivers the goods, the risk shall pass to the Customer on delivery. In all other cases, the risk shall pass to the Customer when the goods leave the Company’s premises.
b) Where the Company itself delivers the goods, the Company undertakes to replace or (at its discretion) to repair free of charge any goods damaged in transit in which event the time for delivery of the goods shall be extended for such a period as the Company reasonably requires for such replacement and repair. It is a condition precedent of this undertaking that
(i) The Customer shall give written notice of such damage in transit with reasonable particulars thereof to the Company within 3 days of receipt of the goods and
(ii) The Customer, if requested by the Company to do so shall return the damaged goods to the Company within 2 weeks of his receipt thereof.7. Limitation of Liability
a) The Company’s liability to the Customer in respect of the direct and/or indirect consequences (including but not being limited to death, injury, illness, disease, loss) whether financial or otherwise or damage (save those of death of or personal injury to human beings resulting from negligence) or any breach or non-performance of this contract, howsoever caused or arising, or of negligence or of any misrepresentation or any tort or breach of stature on the part of the Company or its agents shall be limited to the price of the goods the subject matter of the particular consignment.
b) It is the exclusive responsibility of the Customer to satisfy himself that the goods are suitable for the particular purpose for which he requires them, notwithstanding that he may make known such purpose to the Company and the Customer shall not in this respect rely upon the Company’s skill or judgement or any advice it may give. Accordingly Section 14(3) of the Sale of Goods Act 1979 shall not apply to the Contract and the Company shall not be liable to the Customer for damages in negligence in respect of any such advice or for failure to exercise proper skill and judgement.8. Indemnity
The Customer will indemnify the Company against any claim made against the Company in respect of any injury to any person or damage to any property arising from any defect in the goods or anything done or omitted to be done in the delivery thereof to the Customer where such delivery is effected by the Company, including any such injury or damage caused by the negligence of the Company, its employees or agents.9. Title
a) Notwithstanding that the risk in the goods has passed to the Customer, the ownership of the goods shall remain with the Company, which reserves the right to dispose of the goods until payment in full for all the goods has been received by the Company in accordance with the terms of this contract or until such time as the Customer sells the goods to its customers by way of bona fide sale at full market value.
b) The goods shall so far as practicable be kept separate from other goods on the premises of the Customer and so as to be readily identifiable as the goods of the Company.
c) If payment is overdue in whole or in part the Company may (without prejudice to any of its other rights) recover or resell the goods or any part thereof and may enter upon the Customer’s premises by its servants or agents for the purpose. Such payments shall become due immediately upon commencement of any act or proceeding in which the Customer’s solvency is involved.
d) If any of the goods are incorporated in or used in association with other goods before such payment, the property in the whole of such goods shall be and remain with the Company until such payment has been made, or the other goods shall have been sold as aforesaid and all the Company’s rights hereunder in the goods shall extend to those other goods.
e) Until the Company is paid in full for all the goods the relationship of the Company to the Customer shall be fiduciary in respect of the products or other goods in which they are incorporated or used and, if the same are sold by the Customer, the Company shall have the right to trace the proceeds thereof according to the principles in Re Hallett’s Estate (1880) 13 Cn D 696 (1874-801)(all ER Rep 793). A like right for the Company shall apply where the Customer uses the goods in any way so as to be entitled to payment from a third party.
f) Nothing in this clause shall confer any right upon the Customer to return the goods hereunder or to refuse or delay payment therefor.10. Accounts
a) All invoices shall be settled within 30 days from the date of invoice, unless alternative terms are agreed in writing by MTS.
b) Where any sum owed by the Customer to the Company under the Contract is overdue, or if at any time the credit-standing of the Customer has in the opinion of the Company been impaired for any reason, the Company may in its own absolute discretion demand payment of all outstanding balances, whether due or not and/or cancel all outstanding orders and decline to make further deliveries except upon receipt of cash or satisfactory security. The setting off or withholding of payment by the Customer in respect of any claim shall not be allowed unless expressly agreed by the Company in writing.
c) Further, the Company reserves the right in its absolute discretion to levy an administration charge being the equivalent of liquidated damages in the sum of £30.00 for each month or part thereof that there are monies overdue under the Contract. If payment is not made on the due date, any previously agreed discounts or special terms may be withdrawn and MTS LLP is further entitled, without giving notice, to charge the Customer compound interest on any amount outstanding at the rate of 5% per annum over the National Westminster Bank plc base rate for the time being in force as well as after any judgement, as before.
d) The Company retains the right in their sole discretion to decline to provide credit facilities, or the reason for doing so, but in such cases the Customer shall be entitled to delivery against a guarantee payable on demand issued by a London Clearing Bank.
11. Specification and Quantities
Unless the contract expressly provides otherwise, all weights, dimensions, statements as to performance and any other data relating to the goods supplied by the Company are approximate only.
12. Customer’s Property
Customer’s property and all property supplied to the Company by or on behalf of the Customer will be held and carried at the Customer’s risk.
13. Force Majeure
The Company will make every effort to carry out the Contract in accordance with its terms but it shall not be liable for any failure on its part to perform any term of the Contract arising from any cause outside the Company’s control including (but without prejudice to the generality of the foregoing) Act of God, war, strike, lock-out or other industrial dispute, fire, flood, shortages of materials or breakdown of machinery or plant and, in these circumstances, the Company expressly reserves the right to cancel or suspend the whole or any part of any delivery.
The Contract shall be governed by and construed in accordance with English Law. All questions, disputes or controversies whatsoever arising out of or in relation to or in connection with the Contract or the goods supplied or to be supplied pursuant thereto shall, if not settled by agreement, be referred to the arbitration of a person appointed by the Company and the Customer and the arbitration shall be subject to the Arbitration Act 1950 as modified or re-enacted from time to time.