Terms and Conditions
No. 1 freight with irregular dimensions and weight
Standard Terms of Carriage
This Agreement is entered into between the following:
1) Shift Group Limited (company number 08890359) of 86-90 Paul Street, London EC2A 4NE referred to in this Agreement as “we”, “us” and “our”; and
2) the person or entity who purchases services from us as identified in the Quotation, referred to in this Agreement as “you” and “your”,
each a “party” and together the “parties”.
1. DEFINITIONS AND INTERPRETATION
1.1. In this Agreement, the following words and expressions have the following meanings unless the context otherwise requires:
“Agreement”: the contract between you and us for the supply of Services in accordance with these Conditions and the Quotation (as may be amended from time to time in accordance with its terms);
“Business Day”: a day other than a Sunday or a public holiday or bank holiday in England;
“Charges”: the rates to be charged by us together with any applicable Surcharges in consideration for the provision of the Services and as set out in the Quotation (as may be amended from time to time in accordance with this Agreement);
“Change in Law”: any change in Law which has an impact on the performance of the Services and which comes into force on or after the date of the Quotation;
“Conditions”: these terms and conditions (as may be amended from time to time in accordance with this Agreement);
“Confidential Information”: any commercial, financial or technical information, know-how, trade secrets, databases or other similar information belonging to either party which is identified as confidential or otherwise ought to be considered likely to be confidential by a party acting reasonably;
“Consignment”: goods (including packaging and associated items) in bulk or contained in one or more parcel, package or container which are to be sent in one vehicle load to one address by or for you;
“Contract Year”: each consecutive period of 12 months commencing on the Start Date;
“Due Date”: means the date set out in the Quotation by which our VAT invoice is to be paid or, in the absence of such date being so set out, the date fourteen (14) days from the date of our VAT invoice;
“FastBak”: a collection ordered by you from a collection address that is not your premises and returned back to you;
“Fast4ward”: a collection ordered by you from a collection address that is not premises which you occupy and to be delivered to an address you don’t occupy;
“Force Majeure”: any event outside of our reasonable control and affecting our ability to perform any of our obligations under this Agreement including acts of God, pandemics, epidemics, fire, flood, dangerous driving conditions and/or road closures caused by snow and/or ice, lightning, freezing temperatures, natural disaster, war, revolution, act of terrorism, imposition of sanctions, traffic incidents, riot or civil commotion, strikes, lock-outs or other industrial action, seizures under legal or regulatory process, collapse of buildings, explosions, or any failure or downtime in respect of any telephony or mobile communications and/or other utility service;
“Modern Slavery Practice”: any practice that amounts to: (a) slavery or servitude (each as construed in accordance with Article 4 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 as amended); (b) forced or compulsory labour (as defined by the International Labour Organisation’s Forced Labour Convention 1930 (No. 29) and Protocol); (c) human trafficking; or (d) the arranging or facilitation of the travel of another person with a view to that person being exploited;
“Notice Period”: the period of notice to be given to the other party to terminate this Agreement without cause, being the period set out in the Quotation or 28 days notice by us or 3 months’ notice by you if no such period is so set out;
“Packaging Guidelines”: our standard packaging guidelines and limitations in force from time to time as provided with the Quotation and/or available from us on request and as may be updated from time to time as shown at https://www.tuffnells.co.uk/packaging-labelling;
“PAD”: a private address delivery location;
“Prohibited Goods”: goods referred to as such in the Packaging Guidelines and/or which the Packaging Guidelines state are not to be the subject of the Services;
“Quotation”: the supporting document which details the particulars of this Agreement, including but not limited to the Start Date, Notice Period, the Charges and the Traffic Profile;
“Services”: the collection and/or delivery services to be provided by us, the scope of which is more particularly set out in the Quotation, including services which are incidental or ancillary to such services;
“Service Week”: each period from Monday to Saturday;
“Start Date”: the date set out in the Quotation as the date on which we will commence the provision of Services to you;
“Surcharges”: the surcharges set out in the Quotation to be charged by us to the extent applicable in relation to the provision of the Services;
“Traffic Profile”: the traffic profile assumptions (being the forecast of the amount and frequency of Consignments to be the subject of Services) used for modelling and determining the Charges and as set out in the Quotation; and
“VAT”: value added tax.
1.2. The headings to clauses and paragraphs are inserted for convenience only and will not affect the interpretation or construction of this Agreement.
1.3. References to any statute or statutory provision are a reference to it as amended, extended or re-enacted from time to time, and shall include all subordinate legislation made under it from time to time.
1.4. All references in this Agreement to clauses, paragraphs and schedules are to the clauses, paragraphs and schedules to this Agreement unless otherwise stated.
1.5. Unless the context otherwise requires:
1.5.1. references to the singular include the plural and vice versa and references to gender include every gender; and
1.5.2. references to a “person” include any individual, body corporate, association, partnership, firm, trust, organisation, joint venture, government, local or municipal authority, governmental or supra-governmental agency or department, state or agency of state or any other entity (in each case whether or not having a separate legal entity).
1.6. Any words following the words “include”, “including”, “in particular” or any similar words or expressions will be construed without limitation and accordingly will not limit the meaning of the words preceding them.
1.7. A reference to “writing” or “written” includes email.
1.8. Any reference to:
1.8.1. time of day is to London time; and
1.8.2. a day is a period of twenty-four (24) hours running from midnight to 11:59pm.
2. BASIS OF CONTRACT AND DURATION
2.1. Each Quotation is subject to these Conditions and is not capable of acceptance without acceptance of these Conditions.
2.2. Any samples, drawings, descriptive matter or advertising issued by us are for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of this Agreement or have any contractual force unless expressly included in this Agreement.
2.3. These Conditions apply to the Agreement to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.4. In the event of any inconsistency between the express provisions of the Quotation and those of these Conditions, the former shall prevail.
2.5. This Agreement will come into force on the date on which you accept a valid Quotation either in writing or by taking an action consistent with having accepted a valid Quotation (including without limitation ordering Services following receipt of the Quotation), and continue unless and until terminated in accordance with clause 3.1, 3.11 or 12.
2.6. You acknowledge that, subject to clause 3.4 and save as and how we at our sole discretion may from time to time expressly permit, you may not vary an order for Services after it has been placed, save that in the event that you have more than one account with us for the provision of Services you may change the account under which an order has been placed in return for you paying our corresponding administrative Surcharges as set out in the Quotation (or, if no such Charges are so set out, as otherwise provided to you from time to time).
3. QUOTATIONS, CHARGES AND PAYMENT
3.1. You acknowledge that the Quotation, Charges and Surcharges have been based on the Traffic Profile and that if the number and/or split between standard and next day deliveries of actual Consignments the subject of the Services is more or less than the corresponding amount set out in the Traffic Profile by 20% or more in any five Service Weeks in any period of eight consecutive Service Weeks the then current Charges shall increase by 30%. In the event of a Change in Law which impacts our ability to provide the Services for the Charges, we may include a corresponding variation of the Charges which reflects the costs incurred from such Change in Law as a result.
3.2. Quotations are valid for a period of thirty (30) days from the date of quotation and shall not be capable of acceptance after such period unless we expressly agree otherwise. For the avoidance of doubt, any new Quotation given after such period may differ from the terms of the initial Quotation.
3.3. We will be entitled to invoice you for any applicable Surcharges in accordance with the Quotation.
3.4. In respect of any amount of Services ordered but not used (in full or in part, including without limitation by the Services being used in respect of a lower number of Consignments than that to which an order related), you shall pay the applicable Surcharges set out in the Quotation relating to Services ordered but not used. For the avoidance of doubt, in the event that we provide more Services than have been ordered (including without limitation by the Services being used in respect of a higher number of Consignments than that to which an order related), you shall pay the Charges in respect of all Services actually provided.
3.5. Save where the Quotation states that Charges are calculated per item, the Charges shall be calculated on the basis of either the dead weight or cubic volume of the relevant Consignment as set out in the Quotation, with the Charges in respect of each Consignment being calculated by reference to whichever of such bases causes the Charges to be greater.
3.6. You acknowledge that we are entitled to check the weight and/or dimensions of all Consignments. Where Charges are calculated based on the weight of the package, if the actual weight is greater than the weight originally declared by you we will invoice you based on the actual weight of the Consignment and you shall in addition pay the applicable Surcharges set out in the Quotation in respect of our administrative costs. Where Charges are calculated based on the volume of the package, if the actual volume is greater than the volume originally declared by you we will invoice you based on the actual volume of the Consignment and you shall in addition pay the applicable Surcharges set out in the Quotation in respect of our administrative costs. Where the actual weight and/or volume is different from those originally declared by you and this otherwise affect the Charges (including without limitation by changing the basis of their calculations), the Charges will be calculated based on the actual weight and/or volume and you shall in addition pay the applicable Surcharges set out in the Quotation in respect of our administrative costs.
3.7. We will be entitled to invoice you weekly for the Charges incurred by you during the previous Service Week together with any other Charges properly incurred but not yet invoiced.
3.8. You shall pay the Charges by Direct Debit on or before the Due Date, and provide such documentation and make such arrangements as are necessary to do so.
3.9. All amounts due under this Agreement 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, and save where there is a bona fide dispute and you raise such dispute within 14 days of receipt of the relevant invoice, in which case you shall be entitled to withhold the disputed sum only and the parties shall observe the provisions under clause 15).
3.10.The Charges are exclusive of any VAT (and any other similar or equivalent taxes, duties, fees and levies imposed from time to time by any government or other authority) which will be payable in addition by you.
3.11.We may review the Charges with a view to increasing them to pass on increases in our cost base (whether a direct increase in our costs of providing Services (including fuel and labour costs) or an indirect increase in such costs (including driver shortages, supply chain issues, and otherwise lower volumes causing loss in efficiency and economies of scale)). Following our review we may propose a variation to the Charges to apply to this Agreement which reflects such increase in our cost base. In addition we may no more than once in any calendar year without any such event review our Charges and following such review propose a variation to the Charges to apply to this Agreement.
3.12.Following any proposal referred to in clause 3.11, the parties shall act reasonably and in good faith in seeking to agree the proposed variation of the Charges or any other appropriate variation to the Charges together with any other related change to the terms of this Agreement. In the event that no such agreement can be reached by the date four weeks after the day on which we initially proposed a variation of the Charges, we may terminate this Agreement by giving you no less than two weeks’ prior written notice.
3.13.If any sum payable by you is not paid by the Due Date (save where there is a bona fide dispute and you raise such dispute within 14 days of receipt of the relevant invoice, in which case you shall be entitled to withhold the disputed sum only and the parties shall observe the provisions under clause 15) we reserve the right to charge interest on the outstanding sum calculated on a daily basis from the Due Date until the payment is paid in full, at a rate equal to four per cent (4%) per annum above the base rate of Barclays Bank plc (or its successor) as current from time to time (but at 4% per annum for any period when that base rate is below 0%), whether before or after judgment.
3.14.In the event that either party terminates this Agreement in accordance with clauses 3.1, 3.11 or 12, notwithstanding clauses 3.6 and 3.7 we may immediately invoice any outstanding Charges and all unpaid sums by you shall become payable with immediate effect.
4.1. We shall provide the Services to you on the terms of this Agreement and in consideration of the payment of the Charges by you.
4.2. Each party shall provide the other such reasonable co-operation, documentation and information as may from time to time be reasonably requested by the other party in connection with the performance of this Agreement.
4.3. You shall ensure that the Consignments comply with the Packaging Guidelines.
4.4. We will provide sufficient capacity to collect the Consignments daily (Monday to Friday) utilising a collection and delivery profile and order process set out in the Quotation or otherwise as agreed by the parties.
4.5. You acknowledge that the Services are based upon the Traffic Profile and if the actual volume of Consignments is in excess of those detailed within the Traffic Profile then you accept that our only obligation to you under this Agreement is to use our reasonable endeavours to collect and deliver any of the Consignments that are in excess of the profiled volume.
4.6. Any requirements for us to provide the collection element of the Services other than Monday to Friday must be expressly agreed separately between the parties.
4.7. If we agree to collect your Consignment, we will collect from the agreed collection point and by using our standard operating procedures for collections.
4.8. We reserve the right to not collect, process or deliver any Consignments if we consider it to be impractical or unreasonable to do so, including if:
4.8.1. the collection/delivery address is a PO Box number;
4.8.2. the collection/delivery address is not safe or our employees’ and agents’ health and safety may be put at risk in any way;
4.8.3. the collection/delivery address is not complete, inaccurate or illegible;
4.8.4. we are not provided with access to the collection/delivery location;
4.8.5. we face difficulties in complying with any special precautions or statutory duty to be notified to us in accordance with clause 6.1.6;
4.8.6. the Consignment does not comply with the Packaging Guidelines, including by containing any Prohibited Goods and/or by not being correctly or safely packaged or labelled;
4.8.7. you have an account with us and any credit limit on such account has been exceeded or will with the proposed Consignments be so exceeded; or
4.8.8. you have breached any provisions of this Agreement and such breach is not capable of sufficient remedy at our sole discretion.
4.9. If we have reasonable suspicion that a Consignment contains Prohibited Goods then we may open the Consignment and/or delay its processing or delivery. If the Consignment is confirmed to contain Prohibited Goods then we will be entitled to deal with such item at our sole and absolute discretion (without incurring any liability to you or your customer), including destroying or otherwise disposing of such item in whole or in part or by returning it to you and, in any case, we shall be entitled to recover all related costs from you.
4.10.The endorsement of the words “not checked”, “unexamined” or other words to that effect on a delivery note shall not render us liable for loss of or damage to the Consignment.
4.11.If we cannot locate a Consignment, then you may wish to send a replacement. If both the original Consignment and the replacement Consignment are subsequently delivered and we are responsible for the initial inability to locate the original Consignment, we will collect and return one of the Consignments to you free of charge as your sole remedy.
4.12.We will make deliveries to the relevant doorstep but will not enter any premises to effect a delivery unless expressly agreed otherwise with you. Where you[ or your customer] instruct us where to leave a delivery in the event of it not being accepted we will follow such instructions, but unless expressly agreed by us we will not accept any instructions of this type from the actual recipient. If we are unable to effect delivery (whether as a result of the absence of the recipient and/or such instructions or our not having the necessary access or otherwise) we will make a further attempt at delivery the following Business Day and leave details of the attempted delivery and redelivery arrangements at the delivery address. If we are again unable to effect delivery at the second attempt we will follow the same procedure one more time. If we are again unable to effect delivery at the third attempt, we will return the item to be delivered to the sender and have no further obligation to attempt to effect that delivery.
5. RISK, PROPERTY AND LIEN
5.1. We will accept the risk of damage to the Consignment carried by us only from the time that we take possession of the Consignment.
5.2. Once risk has passed to us, it will remain with us until the time that the Consignment is delivered to its destination. Delivery shall be deemed to have been completed when the Consignment is handed to the recipient or left at the relevant delivery location.
5.3. Risk in any Consignments that are returned to you will pass to you when you or your representative take possession or the Consignment is left at the relevant return address.
5.4. Property in any Consignments will not transfer to us, however we shall have a general and particular lien on Consignments in our possession as security for payment of all sums claimed by us from you. Without prejudice to clause 3.13, if an invoice for the Charges or any other sums owed by you to us in connection with this Agreement is not paid in full by the Due Date (save where there is a bona fide dispute and you raise such dispute within 14 days of receipt of the relevant invoice, in which case you shall be entitled to withhold the disputed sum only and the parties shall observe the provisions under clause 15), we may, without prejudice to our other rights and remedies, give notice in writing to you of our intention to sell or otherwise dispose of some or all of the Consignments in our possession if the amount outstanding is not paid in full within 14 days. If the amount due is not paid by the expiry of such period, we may sell or otherwise dispose of some or all of the Consignments in our possession, as your agent and at your expense and risk, and shall remit the proceeds of sale or disposal of such Consignments to you after deduction of all amounts due to us and the expenses incurred by us for the sale or disposal of the Consignments. We shall not be liable for the price obtained for the sale or disposal of the Consignments. The provisions of this clause 5.4 shall survive expiry or termination of this Agreement.
6.1. You warrant that:
6.1.1. any Consignments, in which risk passes from you to us, are either owned by you or are legally under your direction and control;
6.1.2. all Consignments are classified, securely packaged and labelled in accordance with the Packaging Guidelines and that the actual weight of the Consignments (including packaging) is clearly visible;
6.1.3. the contents of the Consignments are within the scope of what we will deliver as set out in the Quotation, and that no Consignments contain any Prohibited Goods or otherwise fail to comply with any limitations or requirements relating to the contents of the Consignments which are set out in the Quotation;
6.1.4. the weight of the Consignments is factually accurate and not misrepresented;
6.1.5. all Consignments are packaged in a way that will not cause damage or injury;
6.1.6. prior to us taking risk in the Consignments you will notify us (in writing) of any special precautions necessitated by the nature, weight or condition of the Consignments or any statutory duty specific to them;
6.1.7. any consent or licence required to handle the Consignments will have been obtained by you for our benefit prior to us taking risk in the Consignments, and you will have provided us in advance with all material information and documentation relating to any such consent and/or licence;
6.1.8. any information relating to the Consignments that is necessary or desirable for us to know in order for us to comply with our legal duties (including any such information which we have reasonably requested from you) will have been disclosed by you to us prior to our taking risk in the Consignments; and
6.1.9. there is the necessary plant and power (other than by means of the delivery vehicle) and labour (including an authorised person to acknowledge collection/receipt) available promptly at the point of collection and delivery.
6.2. We warrant that we will provide the Services with reasonable skill, care and diligence.
6.3. We shall use reasonable endeavours to meet any applicable timescale relating to the Services, but time shall not be of the essence in relation to performance of the Services.
YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
7.1. The restrictions on liability in this clause 7 apply to every liability arising under or in connection with this Agreement including liability in contract, tort (including negligence and breach of statutory duty), misrepresentation, restitution or otherwise.
7.2. Nothing in this clause 7 shall limit your payment obligations under this Agreement.
7.3. Nothing in this Agreement limits any liability which cannot legally be limited, including liability for:
7.3.1. death or personal injury caused by negligence;
7.3.2. fraud or fraudulent misrepresentation; and
7.3.3. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
7.4. Subject to clause 7.3, we shall not be liable for loss or damage:
7.4.1. caused by latent or inherent defect in, or natural deterioration of, the contents of the Consignments;
7.4.2. arising from any special handling or storage requirements in respect of the Consignments not notified in advance to us by you;
7.4.3. arising in respect of a Consignment before risk in relation to such Consignment has passed to us or after such risk has passed from us; or
7.4.4. of or to a Consignment whose value is £30.00 or less, and in respect of loss or damage of or to a Consignment whose value exceeds £30.00 the amount of our liability shall be reduced by £30.00 (to reflect that we are not liable for the first £30.00 of the amount for which (subject to the remainder of this clause 7) we may otherwise be liable); or
7.4.5. subject to clause 7.8, damage to a Consignment which is the subject of our services known as FastBak or Fast4Ward or to a PAD (but for the avoidance of doubt this clause 7.4.5 does not relate to loss of any such Consignment, and such exclusion of damage may be varied in accordance with clause 7.8).
7.5. Subject to clause 7.3, we shall not be liable whether in contract, tort (including negligence and breach of statutory duty), misrepresentation, restitution or otherwise for any:
7.5.1. loss of profits;
7.5.2. loss of production, revenue, sales or business;
7.5.3. loss of anticipated or existing agreements or contracts;
7.5.4. loss of business opportunity;
7.5.5. loss of working or operational time;
7.5.6. loss of use or corruption of software, data or information;
7.5.7. loss of anticipated savings or profit margin;
7.5.8. loss of or damage to goodwill or reputation; or
7.5.9. special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement.
7.6. Without prejudice to clause 7.5.1 and subject to clause 7.3, we shall not be liable whether in contract, tort (including negligence and breach of statutory duty), misrepresentation, restitution or otherwise for loss of your profit element contained as part of the cash value of a Consignment of goods which you sell. In such cases, you shall on demand substantiate such profit element and in the absence of such substantiation to our reasonable satisfaction, we may apportion 30% of the stated cash value of the lost or damaged items as your profit element for which we shall not be liable.
7.7. Subject to clauses 7.3, 7.4, 7.5, 7.6 and 7.8 our total aggregate liability whether in contract, tort (including negligence and breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of this Agreement shall not exceed:
7.7.1. subject to clause 7.7.2, in respect of a Consignment the following amounts in respect of the following services:
Name of our service
Amount of liability
£15,000 per 1,000 kgs
£15,000 per 1,000 kgs
£15,000 per 1,000 kgs
£15,000 per 1,000 kgs
£15,000 per 1,000 kgs
£5,000 per 1,000 kgs
£5,000 per 1,000 kgs
£15,000 per 1,000 kgs
£5,000 per 1,000 kgs
FastBak (loss only)
£5,000 per 1,000 kgs
Fast4Ward (loss only)
£5,000 per 1,000 kgs
PAD (loss only)
£5,000 per 1,000 kgs
provided that the actual amount of liability shall be a pro rata amount calculated by reference to the total weight of the Consignment to which such liability relates, such that by way of example if the amount of liability set out above is £15,000 per 1,000kgs then the amount of our liability in respect of a Consignment which weights 400kg shall be £6,000; and
7.7.2. in any event £50,000 per Contract Year.
7.8. By agreement in writing, we may accept an amount of liability in excess of the limits set out in clause 7.7 or in place of the exclusion set out in clause 7.4.5 in respect of a particular Consignment or all of your Consignments in return for you paying such additional Charges or Surcharges as shall be agreed by the parties in writing. Without prejudice to the generality of the foregoing, the Quotation may set out higher amounts of liability than those set out in clauses 7.7.1 and/or 7.7.2 and/or a maximum amount of liability in respect of damage to Consignments referred to in clause 7.4.5, and the amount of any additional Surcharges applicable to such increase in our potential liability. In the event and to the extent that any such amounts are accepted in writing, and provided all applicable additional Charges and Surcharges are paid in respect of any and all such increases, the provisions of clauses 7.7.1, 7.7.2, and/or 7.4.5 shall be varied to become the new amount of liability so accepted (and subject to and in accordance with any related additional provisions set out in the Quotation). You acknowledge that the limitations of liability set out in this Agreement are reasonable, including without limitation in light of the amount of the Charges and Surcharges and the provisions of this clause 7.8.
7.9. We have given commitments as to performance of the Services in this Agreement and so, except as expressly set out in this Agreement, we hereby exclude to the fullest extent permissible in law all conditions, warranties and stipulations, express (other than those set out in this Agreement) or implied, statutory, customary or otherwise which but for such exclusion would or might subsist in your favour.
7.10. Subject to clause 7.3 and 7.4, in the cases of lost or damaged Consignments notified by you to us, our liability will be subject to the following time limits:
7.10.1. we shall not be liable for the loss of an entire Consignment unless you notify us via firstname.lastname@example.org the claimed loss of an entire Consignment in writing within fourteen (14) calendar days after the commencement of transit; and
7.10.2. we shall not be liable for damage to, or loss of, any part of the Consignment unless it is submitted on the claims file via email@example.com seven (7) calendar days after the commencement of transit.
7.11. Subject to clause 7.12 and without prejudice to clauses 6.3, 7.3, 7.4, 7.5, 7.6, 7.6 and 7.8, in the event that we do not deliver a Consignment by a delivery time which we have expressly stated in writing to be guaranteed, we shall refund you either:
7.11.1. the difference between the Charges applicable to the delivery time requested and the Charges (or our standard charges in the event that no applicable Charges have been quoted for you) applicable to the delivery time achieved (such that if a delivery was due before 9.30am but delivered shortly before 12:00pm, the difference between the Charges for a 9.30am delivery and the Charges for a 12:00pm delivery would be refunded); or
7.11.2. twenty per cent of the Charges relating to the delayed Consignment,
whichever is the lower.
7.12. In respect of clause 7.11:
7.12.1. we shall not be liable to pay any refund if:
220.127.116.11. you have not requested one in writing within 28 calendar days of the commencement of transit of the relevant delivery;
18.104.22.168. the Consignment does not comply with the Packaging Guidelines;
22.214.171.124. any sum payable by you under this Agreement has not been paid by the Due Date (save in respect of a bona fide dispute which you have raised within 14 days of receipt of the relevant invoice); or
126.96.36.199. you have otherwise exceeded any applicable credit limit;
7.12.2. where a delay in delivery relates only to part of a Consignment, a pro rata amount of the relevant Charges shall be used to calculate the refund;
7.12.3. any guaranteed delivery times refer to Business Days;
7.12.4. save as expressly stated otherwise by us, guaranteed delivery times do not apply to addresses outside mainland Great Britain (including any islands, but other than the Isle of Wight) or to such parts of Scotland which we may from time to time bring to your attention; and
7.12.5. clause 7.11 shall not apply in respect of any failure to deliver a Consignment by a guaranteed delivery time where:
188.8.131.52. the Consignment is a FastBak or Fast4ward or carriage forward;
184.108.40.206. the failure results from Force Majeure;
220.127.116.11. the failure results from the valid exercise by us of a lien; or
18.104.22.168. the delivery address is an airport, wharf, dock, container base, BFPO, PO Box, PAD, building site, exhibition stand, or any location subject to a booking-in procedure.
7.13. You shall indemnify us against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by us arising out of or in connection with:
7.13.1. any claim made against us in respect of damage to property, death or personal injury arising out of or in connection with the storage, handling or carriage of any Prohibited Goods;
7.13.2. any claim made against us for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the storage, handling or carriage of any of the Consignments;
7.13.3. any claim made against us arising out of your failure to comply with any statutory or HMRC requirements, including administrative requirements, concerning the payment of tax, customs or duties in respect of any of the Consignments;
7.13.4. any claim made against us for interference with the rights of a third party arising out of or in connection with the storage, handling or carriage of any of the Consignments;
7.13.5. any claim made against us by your customers or other third parties in respect of loss of and/or damage to Consignments or otherwise in connection with this Agreement;
7.13.6. any inaccuracy in the weight of Consignments which you have provided to us; and
7.13.7. any breach by you of the provisions of clauses 8 or 9.
8.1. Each party will keep all Confidential Information of the other party that has been disclosed or obtained as a result of the relationship under this Agreement secret and confidential and will not use, disclose nor exploit the same save for the purposes of the proper performance of this Agreement or with the prior written consent of the other. Where disclosure is made to any employee, agent, contractor, subcontractor or advisor, such disclosure shall only be to the extent that such recipient needs to know such information for the permitted purpose of disclosure, and each party shall ensure that its employees, agents, contractors, subcontractors or other advisors shall comply with this clause 8.
8.2. The obligations of confidentiality in this clause 8 will not extend to any matter which either party can show:
8.2.1. is in, or has become part of, the public domain other than as a result of a breach of confidentiality under this Agreement;
8.2.2. was in its written records prior to disclosure by the other party;
8.2.3. was independently disclosed to it by a third party entitled to disclose the same; or
8.2.4. is required to disclose under any applicable law, or by order of a court or governmental body or authority of competent jurisdiction.
8.3. The obligations under this section shall continue to apply for a period of two (2) years after termination of this Agreement.
9.1. You shall at your own expense and at all times in relation to this Agreement comply with all applicable laws, statutes, regulations and codes from time to time in force and with any conditions binding on you in any applicable licences, registrations, permits and approvals.
9.2. Without prejudice to the generality of clause 9.1, you shall, and shall ensure that your officers, employees, agents, sub-contractors and any other persons who perform services for or on behalf of you in connection with this Agreement do, at all times:
9.3. not engage in any Modern Slavery Practice;
9.4. comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010, and notify us in writing immediately if you become aware of any breach of this compliance or have reason to believe that you have received a request or demand for any undue financial or other advantage in connection with the performance of this Agreement;
9.5. comply with all applicable laws, statutes, regulations and codes relating to financial crime, including without limitation in respect of money laundering, fraud, financing terrorism and handling the proceeds of crime; and
9.6. comply with our policies on anti-slavery, anti-bribery and financial crime (each as may be amended from time to time).
10. DATA PROTECTION
10.1.This clause 10 is without prejudice to the generality of clause 9.1.
10.2.The following definitions apply in this clause 10:
10.2.1.“Controller”, “Processor”, “Data Subject”, “Personal Data”, “Personal Data Breach”, “processing” and “appropriate technical and organisational measures”: as defined in the Data Protection Legislation;
10.2.2.“Data Protection Legislation”: all applicable data protection and privacy legislation in force from time to time in the UK including the retained EU law version of the General Data Protection Regulation ((EU) 2016/679) (UK GDPR); the Data Protection Act 2018 (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended; and
10.2.3.“Domestic Law”: the law of the United Kingdom or a part of the United Kingdom.
10.3.Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 10 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.
10.4.The parties acknowledge that for the purposes of the Data Protection Legislation, you are the Controller and we are the Processor.
10.5.Without prejudice to the generality of clause 10.3, you will ensure that you have all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to us and/or lawful collection of the Personal Data by us on your behalf for the duration and purposes of this Agreement.
10.6.Without prejudice to the generality of clause 10.3, we shall, in relation to any Personal Data processed in connection with the performance by us of our obligations under this Agreement:
10.6.1.process that Personal Data only to the extent necessary to perform the Services or otherwise on your documented written instructions unless we are required by Domestic Law to otherwise process that Personal Data. Where we are relying on Domestic Law as the basis for processing Personal Data, we shall notify you of this before performing the processing required by the Domestic Law unless the Domestic Law prohibits us from so notifying you;
10.6.2.ensure that we have in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of our systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by us);
10.6.3.ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
10.6.4.not transfer any Personal Data outside of the UK and Ireland unless your prior written consent has been obtained and the following conditions are fulfilled:
10.6.4.1.you or we have provided appropriate safeguards in relation to the transfer;
10.6.4.2.the Data Subject has enforceable rights and effective legal remedies;
10.6.4.3.we comply with our obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
10.6.4.4.we comply with reasonable instructions notified to us in advance by you with respect to the processing of the Personal Data;
10.6.5.assist you, at your cost, in responding to any request from a Data Subject and in ensuring compliance with your obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
10.6.6.notify you without undue delay on becoming aware of a Personal Data Breach;
10.6.7.at your written direction, delete or return Personal Data and copies thereof to you on termination or expiry of this Agreement unless required by Domestic Law to store the Personal Data; and
10.6.8.maintain complete and accurate records and information to demonstrate our compliance with this clause 10.
10.7.You may from time to time consent in writing to our appointing a third party processor of Personal Data under this Agreement. No such consent has been given prior to this Agreement but you shall not unreasonably withhold, condition or delay any such consent if requested. We confirm that we have entered or (as the case may be) will enter with the third-party processor into a written agreement (substantially on that third party's standard terms of business, or incorporating terms which are substantially similar to those set out in this clause 10) and in either case which we confirm reflect or will reflect, and will continue to reflect, the requirements of the Data Protection Legislation. As between you and us, we shall remain fully liable for all acts or omissions of any third-party processor appointed by us pursuant to this clause 10.7.
10.8.We may, at any time on not less than 30 days' notice, by giving written notice to you revise this clause 10 by replacing it with any applicable controller to processor standard clauses or similar terms adopted by the Information Commissioner or forming part of an applicable certification scheme.
11. RIGHT TO SUSPEND
11.1.We will provide you with the Services subject to you complying with your obligations set out in this Agreement. Any failure by you to comply with your obligations shall entitle us to immediately suspend services until such time as you remedy such failure and comply fully with your obligations to our reasonable satisfaction.
11.2.Exercise by us of our rights under this clause 11 shall be without prejudice to any other rights that we may have under this Agreement, including in relation to termination in accordance with clause 12.
12. TERMINATION AND CONSEQUENCES OF TERMINATION
12.1.Either party may terminate this Agreement at any time by giving prior written notice of not less than the Notice Period to the other party.
12.2.Either party may terminate this Agreement with immediate effect with notice to the other (the “Party In Breach”) if one or more of the following events occurs:
12.2.1.the Party in Breach commits a breach of any term of this Agreement and (if such breach is remediable) fail to remedy that breach within thirty (30) days of receipt of notice to do so;
12.2.2.the Party in Breach repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
12.2.3.the Party in Breach suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
12.2.4.the Party in Breach commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors;
12.2.5.the Party in Breach applies to court for, or obtain, a moratorium under Part A1 of the Insolvency Act 1986;
12.2.6.a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Party in Breach (being a company, limited liability partnership or partnership);
12.2.7.an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the Party in Breach (being a company, partnership or limited liability partnership);
12.2.8.the holder of a qualifying floating charge over the assets of the Party in Breach (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
12.2.9.a person becomes entitled to appoint a receiver over all or any of the assets of the Party in Breach or a receiver is appointed over all or any of the assets of the Party in Breach
12.2.10.the Party in Breach (being an individual) is the subject of a bankruptcy petition, application or order;
12.2.11.a creditor or encumbrancer of the Party in Breach attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the assets of the Party in Breach and such attachment or process is not discharged within 14 days;
12.2.12.any event occurs, or proceeding is taken, with respect to the Party in Breach in any jurisdiction to which the Party in Breach is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.2.3 to 12.2.11 (inclusive);
12.2.13.the Party in Breach suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
12.2.14.the financial position of the Party in Breach deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this Agreement is in jeopardy; or
12.2.15.the Party in Breach (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing its own affairs or becomes a patient under any mental health legislation.
12.3.The termination of this Agreement will be without prejudice to the rights and remedies that either you or we may have accrued up to the date of termination.
12.4.Upon termination or expiry of this Agreement whatsoever:
12.4.1.the relationship between you and us will cease and any rights or licences granted to you under or in relation to this Agreement will cease to have effect;
12.4.2.any provision that is expressly or by implication intended to come into or remain in force on or after termination will come into or remain in (as the case may be) full force and effect; and
12.4.3.both parties shall cease to use any intellectual property rights licensed by the other and any signs, cards, notices, materials or other display or advertising material indicative of any association with each other.
13. FORCE MAJEURE
13.1.If we are affected by Force Majeure we will (as soon as reasonably practicable) notify you of the matters constituting the Force Majeure and will (to the extent reasonably practicable) keep you informed of their continuance and of any relevant changes in circumstance whilst it continues.
13.2.We will use reasonable endeavours to minimise the effects of the Force Majeure on the performance of our obligations under this Agreement.
13.3.We will not be in breach of this Agreement, or otherwise liable to you (including to provide any form of service credit) for any loss or any delay in performance or non-performance of any of our obligations for reasons attributable to Force Majeure.
14.1.Any notices sent under this Agreement shall be in writing and may be served by personal delivery or first class recorded post to the receiving party’s registered address (if a company) or its principal place of business (in any other case) , or by email to the email address provided for such purposes or otherwise commonly used for the receipt of communications between the parties, and shall be addressed:
14.1.1.where notice is being sent from you to us, to the relevant Tuffnells Account Manager and copied to the their director; or
14.1.2.where notice is being sent from us to you, to any of your employees we deem appropriate.
14.2.Any notice shall be deemed to have been received:
14.2.1.if sent by personal delivery, at the time the notice is left at the proper address;
14.2.2.if sent by first class recorded post, at 9.00am on the second Business Day after posting; or
14.2.3.if sent by email at the time of transmission (in the absence of an automated response stating that transmission was unsuccessful) or, if this time falls outside business hours in the place of receipt, when business hours resume (and for such purposes business hours shall be the times of 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt).
14.3.This clause 14 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
15. DISPUTE RESOLUTION PROCEDURE
15.1.If you dispute any invoice or other statement of monies due:
15.1.1.you shall notify us in writing within 14 days of receipt of the disputed invoice or statement setting out your claimed grounds for the dispute;
15.1.2.we shall investigate such grounds and reply in writing within 7 days of such notice either (i) accepting such grounds in full or in part, following which we will issue a corresponding revised invoice or statement or a credit note and you shall pay any revised invoice by the Due Date for such invoice, or (ii) rejecting such grounds and requiring payment in full and you shall make such payment by the Due Date (where the Due Date is calculated by reference to our reply rather than the invoice), in each case subject to clause 15.1.3;
15.1.3.you may appeal our full or partial rejection by notifying us in writing within 14 days of such reply setting out your claimed further grounds to dispute the invoice or statement and/or the rejection; and
15.1.4.we shall investigate such further grounds and reply in writing within 7 days of such notice either (i) accepting such further grounds in full or in part, following which we will issue a corresponding revised invoice or statement or a credit note and you shall pay any revised invoice by the Due Date for such invoice, or (ii) rejecting such further grounds and requiring payment in full and you shall make such payment by the Due Date (where the Due Date is calculated by reference to our reply rather than the invoice).
15.2.For the avoidance of doubt:
15.2.1.you shall only raise a dispute which is bona fide;
15.2.2.where only part of an invoice is disputed, the undisputed amount shall be paid on the Due Date for such invoice; and
15.2.3.clause 15.1 does not exclude any right for you to initiate formal proceedings to claim repayment of any invoice which you have paid, whether on grounds raised during the process set out in clause 15.1 or otherwise.
15.3.Each party shall co-operate in an amicable manner with a view to resolving any disputes that may arise in relation to this Agreement. Save as set out in clause 15.1, any disputes in the first instance will be referred to the representatives of the respective parties who have normal day-to-day contact in relation to the Services. If any dispute is not able to be resolved at this level then the dispute may be escalated to director level.
15.4.For the avoidance of doubt, neither party shall be prevented from or delayed in seeking orders for specific performance or interlocutory or final injunctive relief on an ex parte basis or otherwise as a result of this clause 15.
15.5.Each party acknowledges the right of the other party to seek redress from the courts for disputes that are not suitable or capable of resolution by the procedure set out in this clause 15.
15.6.The parties agree that redress to the courts should be the last resort in seeking to resolve any disputes.
15.7.Each party shall bear its own costs in attempting to settle any dispute under this clause 15.
16. ASSIGNMENT AND THIRD PARTIES
16.1.This Agreement is personal to you and you will not assign, sub-contract or otherwise dispose of any of your rights and responsibilities under it without our prior written consent.
16.2.We may sub-contract the performance of our obligations to any third party and we will remain primarily liable for the acts and omissions of those third parties in doing so (and the limits of liability as set out in clause 7 will still apply). We may assign and otherwise deal with our rights under this Agreement.
17.1.We are not, and do not contract as, a common carrier and accept Consignments only in accordance with the terms of this Agreement. We reserve the right (at our sole discretion) to decline any order placed by you under this Agreement to carry any Consignments at any time.
17.2.You may inform your customers that you use our Services by referring to us by name, but may not otherwise use our name, logo or branding without our prior written permission. You shall not do, or cause to be done, anything to damage our reputation or otherwise disparage us or bring us into disrepute, including (for the avoidance of doubt) through use of social media.
17.3.This Agreement constitutes the entire agreement between the parties and supersedes any prior agreement or arrangement in respect of its subject matter and neither party has entered into this Agreement in reliance upon, and it will have no remedy in respect of, any misrepresentation, representation or statement which is not expressly set out in this Agreement. Nothing in this clause 17.3 shall be interpreted or construed as limiting or excluding the liability of any person for fraud or fraudulent misrepresentation.
17.4.Nothing in this Agreement will create, or deemed to create, a partnership or joint venture or relationship of employer and employee or principal and agent between you and us.
17.5.If any provision or part-provision of this Agreement is deemed by any court or body or authority of competent jurisdiction to be illegal, unlawful, void or unenforceable, such provision or part-provision will be deemed to be deleted from this Agreement and this will not affect the remainder of this Agreement, which will continue in full force and effect and the parties shall act reasonably and in good faith in seeking to agree a replacement provision or part-provision which to the greatest extent possible achieves the intended commercial result of the original provision or part-provision.
17.6.Subject to clauses 2.4 and 10.8, no purported alteration or variation of this Agreement will be effective unless it is in writing, refers specifically to this Agreement and is signed by our duly authorised representative.
17.7.No forbearance, indulgence or relaxation on the part of either party shown or granted to the other party in enforcing any of the provisions of this Agreement shall in any way affect, diminish, restrict or prejudice any of the rights or powers of either party under this Agreement or operate as or be deemed to be a waiver of any breach of the provisions of this Agreement on the part of the other party. To be effective, any such waiver shall be in writing and signed by an authorised representative of the party granting the waiver, and no such waiver shall affect any of that party’s rights or remedies in respect of any breach of this Agreement save to the extent expressly set out in such waiver.
17.8.This Agreement may be executed in any number of counterparts, each of which shall constitute an original, but which shall together constitute one agreement.
17.9.This Agreement may be executed in duplicate, each of which shall constitute an original.
17.10.The parties do not intend that any term of this Agreement will be enforceable under the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.
18. LAW AND JURISDICTION
18.1.This Agreement 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 laws of England and Wales.
18.2.All disputes or claims (including non-contractual disputes or claims) arising out of or in relation to this Agreement or its subject matter or formation will be subject to the exclusive jurisdiction of the English Courts to which the parties irrevocably submit.