STANDARD TERMS AND CONDITIONS
No purchase order or contract is deemed to be accepted by Mailing Expert Ltd (MEL) unless these terms and conditions apply as written:
1.1 The Client shall pay to MEL the charges listed on the invoice which will unless otherwise specifically agreed in writing be invoiced on completion and be payable in full within 30 days (subject to credit approval) of the date of postage with the exception of any postage and other despatch costs required to be paid in order to fulfil the services which shall be paid by the Client direct to the Royal Mail or other despatch supplier using the Client’s own account OR in the event that this is not acceptable to the Royal Mail or other despatch supplier then postage shall be paid to MEL upon receipt of MEL’s invoice or proforma. Specialist media purchased on behalf of the Client must be paid in full before MEL will place an order with its supplier.
1.2 All charges specified on quotations are subject to increase in accordance with MEL’s standard price list prepared by them from time to time upon MEL giving to the Client not less than 30 days prior written notice of any such increase. Quotations provided by MEL remain valid for a period of 25 days from issue. MEL reserves the right (but without prejudice to the rights of early termination hereinafter provided) to charge the Client on any late payment in respect of the charges as aforesaid at the rate of 10% above bank base rate plus £35 from the date when such charges become due until fully paid. 1.3 In the event of the Client requiring MEL to carry out any services other than those listed on the invoice or requiring modification of such services such additional or exceptional work shall be charged by MEL to the Client in addition to the charges on the invoice at MEL’s applicable standard rates in accordance with it’s price list at the time such additional charges to be payable forthwith upon the issue of an invoice.
Collection and delivery and storage of any property of the Client by or to MEL shall at all times remain at the Client’s risk unless it has specifically been agreed in writing to the contrary setting out the amount of insurance cover required to be taken out by MEL and subject always to MEL’s Insurers accepting the risk and MEL being paid in advance for the cost thereof.
3. GENERAL LIEN
Without prejudice to other remedies MEL shall in respect of all unpaid charges due from the Client have a general lien on all goods and property in it’s possession (whether worked on or not) and shall be entitled on the expiration of 14 days notice to dispose of such goods or property as it thinks fit and to apply any proceeds towards such outstanding charges.
4. MATERIAL SUPPLIED BY THE CLIENT
4.1 All material including data and/or information furnished by the Client to MEL shall be in a form acceptable to MEL. Additional costs incurred by MEL where the material/data/information is not in a form acceptable to MEL may be charged to the Client. Where Material/data/information is supplied in a form outside of a specification agreed between MEL and the Client or is in any way substandard MEL will take every care to secure the best results but responsibility will not be accepted for imperfect work, which thereby arises.
4.2 Any of the Client’s materials which remain in the MEL possession after 30 days from the completion of any order will be subject to storage charges. MEL reserves the right to destroy or dispose of all such materials at the Client’s cost not less than 14 days after written notice to that effect is given to the Client.
5. DELIVERY DATE
Unless otherwise specifically agreed in writing from MEL to the Client any delivery date specified on any document is an estimate only and MEL shall not be liable for any loss resulting from any delay however it is caused and it is hereby expressly agreed that time shall not be of the essence in this regard.
MEL shall be entitled to terminate the provision of services forthwith in the event of the Client being in arrears for a period of 30 days after any payment to be made hereunder or under any other agreement between MEL and the Client becomes due or if the Client shall suffer any distress or seizure to be levelled on its goods or if the Client shall commit or allow to be committed a breach of these terms and conditions and shall fail to remedy such breach within 14 days of written notice by MEL requiring such breach to be remedied or if the Client being an individual shall become bankrupt or make any composition or arrangement with his creditors or being a Company enter into liquidation or winding up other than for reconstruction or amalgamation provided that no time or indulgence granted by MEL shall affect it’s right hereunder and that any such termination shall be without prejudice to either party’s rights in respect of any matter arising prior thereto.
The Client shall not be entitled to assign it’s rights in respect of the provision of the services listed on the invoice without MEL’s prior written consent.
8. WARRANTIES AND LIABILITIES AND THE CLIENTS ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF THIS CONDITION
8.1 Subject to the sub-clauses set out below MEL warrants that it will use all reasonable endeavours to provide the services on the invoice in an efficient manner.
8.2 The above warranty given by MEL is subject to the following conditions:
8.3 MEL shall be under no liability under the above warranty if the total price for the services has not been paid by the due date for payment.
8.4 MEL shall be under no liability in the event that it is prevented from providing the services due to force majeure as hereinafter defined in clause 11.2.
8.4 Subject as expressly provided in this clause 8 all warranties conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8.5 The Company’s entire liability (including liability for acts or omissions of its employees, agents and sub-contractors) in respect of any breach of its contractual obligations and any representations, statements or tortious act, or omission, including negligence shall be limited to the contract price (excluding postage) or the direct loss suffered by the Customer, whichever is the smaller .
8.6 The Company shall not be liable under any circumstances for any indirect or consequential loss or damage, loss of profits, goodwill, or loss of any kind other than the direct loss suffered by the Customer subject to the paragraph above.
8.7 The Client shall indemnify MEL against all claims made against MEL by any third party in respect of the provision of services except and in so far as MEL is liable as aforesaid.
9. COMPLIANCE WITH THE LAW AND RELEVANT CODES OF PRACTICE
9.1 MEL shall not be required to provide any services unless materials or data/information supplied by the Client fully comply with all laws and regulations in force from time to time and in particular the Client shall ensure that where necessary it has fully complied with the Data Protection Act 1984 the Copyright Design and Patent Act 1988 the British Code of Advertising Practice the British Code of Sales Promotion Practice and any other code of practice which MEL may stipulate as being applicable to the Client from time to time and the Client shall indemnify MEL against any liability that may arise as a result of the Client failing to comply as aforesaid.
9.2 The Client agrees to its property being monitored whilst being handled by MEL as and when required by the DMA, QMP or Direct Mail Standards Board or other regulatory bodies under their Code of Practice.
10. COPYRIGHT AND TITLE
Title to and all proprietary and intellectual property rights and copyright in all software programmes and ancillary written material produced by MEL or its contractors and used for the benefit of the Client shall at all times remain the sole and absolute property of MEL. Any setup payments made by the client are part costs only and do not imply any right of ownership by the client of any of the software programmes or systems produced.
11.1 All charges hereunder are exclusive of Value Added Tax, which shall be charged at the rate ruling at the tax point.
11.2 MEL shall not be responsible for non-performance in whole or in part of its obligations hereunder nor under any liability to the Client in respect thereof if such non-performance is due to any cause beyond the control of MEL including (without limitation) act of God, war, insurrection, riot, civil commotion, government regulations, strikes, labour disputes and flood, explosion, fire, tempest or nuclear risk.
11.3 No waiver alteration or modification of any of the provisions hereof shall be binding unless in writing and signed by duly authorised representatives of both parties.
11.4 All notices required or authorised to be given hereunder shall be given in writing and sent by pre-paid post direct to the party to whom it is addressed at its last known place of business and shall be deemed to have been served on the day following the date of transmission or posting.
11.5 These terms and conditions shall be construed and take effect in accordance with English law and the English courts shall have sole jurisdiction.
11.6 If any provision of these conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these conditions and the remainder of the provisions in question shall not be affected thereby.
11.7 Any dispute arising under or in connection with these conditions shall be referred to arbitration by a single arbitrator appointed by agreement or in default nominated on the application of either party by the President for the time being of the Institute of Chartered Accountants.
11.8 The headings appearing in these terms and conditions are inserted only as a matter or convenience and in no way define limit construe or describe the scope or intent of the clauses hereunder.