The following definitions and rules of interpretation apply in these Conditions.
1.2.1 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
1.2.2 Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.2.3 A reference to writing or written includes email.
2.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when:
2.2.1 the Supplier issues written acceptance (or oral acceptance confirmed in writing) of the Order to the Customer; or
2.2.2 the Supplier commences performance or provision of the Services,
at which point and on which date the Contract shall come into existence ("Commencement Date").
2.3 Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier's catalogues or brochures or websites, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing including, without limitation, any terms set out in the Customer’s purchase order, quotation or similar.
2.5 It is agreed between the Supplier and the Customer that:
2.5.1 there shall be incorporated into the Contract by reference the UKWA Terms in respect of any part or parts of the Services involving warehousing and/or storage; and/or
2.5.2 there shall be incorporated into the Contract by reference the RHA Terms in respect of any part or parts of the Services involving transit and/or haulage.
If there is any conflict, ambiguity or inconsistency between the terms of these Conditions or the Relevant Terms, the terms of these Conditions shall have priority over terms contained in the Relevant Terms unless otherwise stated in these Conditions.
3.1 The Supplier shall supply the Services to the Customer from the Services Start Date in accordance with the Order and/or the Specification (if any) in all material respects.
3.2 The Supplier shall use all reasonable endeavours to meet any performance dates specified to the Customer but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 The Supplier reserves the right, at any time, to amend the Order, the Contract and/or the Specification (if any) if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
3.4 The Supplier reserves the right, at any time, to update, supplement or replace the Relevant Terms (or any of them) with any commonly used replacement terms and conditions to the Relevant Terms (or any of them) used in the relevant industries they are applicable to, and the Supplier shall notify the Customer in any such event.
3.5 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
4.1 The Customer shall:
4.1.1 ensure that the terms of the Order and any information it provides in the Specification (if any) are complete and accurate;
4.1.2 co-operate with the Supplier in all matters relating to the Services;
4.1.3 provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer's and/or any relevant third party premises, office accommodation and other facilities or locations as reasonably required by the Supplier;
4.1.4 provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
4.1.5 prepare the Customer's or any relevant third party’s premises for the supply of the Services;
4.1.6 obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
4.1.7 keep all materials, equipment, documents and other property of the Supplier ("Supplier Materials") at the Customer's premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier's written instructions or authorisation; and
4.1.8 comply with any additional obligations as set out in the Order and/or the Specification (if any) or as otherwise agreed in writing between the Supplier and the Customer.
4.2 If the Supplier's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation ("Customer Default"):
4.2.1 without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations;
4.2.2 the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this clause 4.2; and
4.2.3 the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
5.1 The Charges for the Services shall be as set out in or calculated in accordance with the Order and/or the Specification (if any) or as otherwise agreed in writing between the Supplier and the Customer. If no Charges are set out or agreed all Charges shall be on a time and materials basis and:
5.1.1 the Charges shall be calculated in accordance with the Supplier's daily fee rates, as set out in its current price list at the date of the Contract; and
5.1.2 the Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials.
5.2 The Supplier may increase the Charges at any time in line with:
5.2.1 any increase or decrease in the price of diesel fuel or any other fuel used in connection with the Services;
5.2.2 any cost of the road transport industry or warehousing industry being materially affected by any law, regulation or tax;
5.2.3 the percentage increase in the Consumer Price Index in the preceding 12-month period,
and the Supplier shall notify the Customer in any such event.
5.3 The Supplier shall invoice the Customer as set out in the Order and/or the Specification (if any) or as otherwise agreed in writing between the Supplier and the Customer or, if no such terms are set out or agreed, the Supplier shall be able to invoice the Customer in respect of the Charges weekly in arrears.
5.4 Unless otherwise specified in the Order and/or the Specification (if any) or as otherwise agreed in writing between the Supplier and the Customer, the Customer shall pay each invoice submitted by the Supplier:
5.4.1 within 30 days of the date of the invoice (or in accordance with any ongoing credit terms agreed by the Supplier and confirmed in writing to the Customer); and
5.4.2 in full and in cleared funds to a bank account nominated in writing by the Supplier, and
time for payment shall be of the essence of the Contract.
5.5 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax (or any similar sales tax) chargeable from time to time ("VAT"). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.6 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier's remedies under clause 6, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 5.6 will accrue each day at 8% a year above the Bank of England's base rate from time to time, but at 8% a year for any period when that base rate is below 0%.
5.7 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
6.1 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
6.1.1 the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;
6.1.2 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or
6.1.2 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
6.2 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:
6.1.1 the Customer fails to pay any amount due under the Contract on the due date for payment; or
6.1.2 there is a change of control of the Customer.
6.3 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 6.1.2 or clause 6.1.3 or the Supplier reasonably believes that the Customer is about to become subject to any of them.
7.1 On termination or expiry of the Contract:
7.1.1 the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
7.1.2 the Customer shall return all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
7.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
7.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
8.1 Nothing in the Contract shall limit or exclude the Supplier's liability for:
8.1.1 death or personal injury caused by its negligence, or the negligence of its personnel, agents or subcontractors;
8.1.2 fraud or fraudulent misrepresentation; and
8.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); or
8.1.4 any other liability which cannot be limited or excluded by applicable law.
8.2 Subject to clause 8.1, the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement for:
8.2.1 loss of profits;
8.2.2 loss of sales or business;
8.2.3 loss of agreements or contracts;
8.2.4 loss of anticipated savings;
8.2.5 loss of use or corruption of software, data or information;
8.2.6 loss of or damage to goodwill; and
8.2.7 any indirect or consequential loss.
8.3 Subject to clause 8.1, the Supplier's total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this Contract shall be limited in accordance with the applicable Relevant Terms or, if the applicable Relevant Terms do not apply for any reason, the total liability shall be limited to the Charges actually paid by the Customer to the Supplier under or in connection with the Contract in the 12 month period prior to the date of the relevant event giving rise to the claim in question.
8.4 All conditions implied into this Contract by law (whether by statute, common law or otherwise) are, to the fullest extent permitted by law, excluded from this agreement.
9.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
9.2 Assignment and other dealings.
9.2.1 The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
9.2.2 The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.
9.3.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 9.3.2.
9.3.2 Each party may disclose the other party's confidential information:
188.8.131.52 to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 9.3; and
184.108.40.206 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
9.3.3 Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.
9.4 Entire agreement.
9.4.1 The Contract and any documents referred to in it (including the Relevant Terms (as applicable)) constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
9.4.2 Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract and any documents referred to in it (including the Relevant Terms (as applicable)). Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract and any documents referred to in it (including the Relevant Terms (as applicable)).
9.4.3 Nothing in this clause shall limit or exclude any liability for fraud.
9.5 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
9.6 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
9.7 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement. If any provision or part-provision of this Contract deleted under this clause 9.7 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
9.8 Third party rights.
9.8.1 Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
9.8.2 The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
9.9 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
9.10 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.