Please read these terms with care, in particular Clauses 3 and 8 which contain provisions defining, regulating and limiting the Company’s liability in respect of any potential default and provide for an indemnity by you, the Customer, in certain circumstances.
STANDARD TERMS OF CONTRACT
Definitions
In these terms where the content so permits the following expressions shall have the following meanings: “Consignment” means any article or articles of any sort which may be, or be intended to be, received by the Company from any one consignor at any one address for carriage and delivery at any one time to any one consignee at any one other address: “The relevant collection point” means the address at which any Consignment is to be received by the Company: The relevant delivery point means the address to which any Consignment is to be delivered by the Company: “the excepted risks” mean: War, invasion, act of foreign enemy, hostilities (whether war be declared or not), civil war, rebellion, revolution, insurrection or military or usurped power, or loot, sack, or pillage in connection therewith, and/or Ionising radiations or contamination by radioactivity from any nuclear fuel on from any nuclear waste from the combustion of nuclear fuel, and/or Radioactive, toxic, explosive or other hazardous properties of any explosive nuclear assembly or nuclear component thereof, and/or Pressure waves caused by aircraft and other aerial devices travelling at sonic or supersonic speeds, and/or The absence, failure or
inadequacy of packing or packaging: ‘The Service Order” means the Service Order and Schedule form overleaf: ‘This Agreement” means the Service Order together with these terms.
Company’s obligation
In consideration of the payments to be made to the Company by the Customer the Company shall (subject as hereinafter mentioned) during the continuance of this Agreement carry out the services described in the Schedule. Liability of the company Note: Where the Customer deals with the Company as a consumer the provisions set out hereunder do not and will not affect his rights under the Unfair Contract Terms Act 1977 WHEREAS: The value of the property intended to be carried and/or delivered under this Agreement and also the amount of any consequential loss which might arise from damage or loss to or of the said property are matters which are better known to and/or more readily ascertainable by the Customer than the Company: indeed to some extent they cannot be known to the Company but are under the control of the Customer: The potential extent of the damage (as defined in (f) below) that might be caused or be alleged to be caused to the Customer is disproportionate to the sum that can reasonably be charged by the Company under this Agreement:
The Company is not able to obtain liability cover giving unlimited cover for its full potential liability to its customers under agreements such as this and in any case even liability cover giving limited cover for such liability is more difficult and more expensive to obtain than liability cover in respect of any loss of or damage to his own property or of loss arising there from which liability cover the Customer should be able to, and should, obtain:
The Company is concerned to keep down the costs of the services it provides to its Customers under agreements such as this: In the circumstances the Company intends to limit its liability for any damage caused to the Customer (as defined in (f) below) to amounts which are not out of proportion to its charges hereunder, namely the amounts defined in (II) below: In this Agreement “damage caused to the Customer” means any damage suffered by the Customer (including for the avoidance of doubt any loss of or damage to any Consignment and loss of any other kind whether direct or consequential), howsoever arising caused by any negligence, breach of duty or other wrongful act or omission (which phrase, wherever it appears in this Agreement, includes any deliberately wrongful act or omission and any breach, howsoever fundamental, of any express or implied term of this Agreement) on the part of the Company its servants or agents: It is difficult to investigate claims received weeks after the loss or damage is alleged to have occurred.
THE COMPANY AND THE CUSTOMER AGREE TO THE FOLLOWING LIMITATION OF LIABILITY
Provision as to liability of the Company, its servants or agents So far as concerns damage caused to the Customer the Company shall be liable to the Customer (and then only to the limited extent set out below) only if and in so far as such damage is caused by the negligence, breach of duty or other wrongful act or omission of the Company itself or its directors or servants acting within the course of their employment.
Provision as to limitation of the amount of liability of the Company If, whether pursuant to the provisions set out herein or otherwise, any liability to the Customer shall arise on the part of the Company, its servants or agents (whether under the express or implied terms of this Agreement, howsoever fundamental, or in negligence or in any other way, however fundamental maybe the breach of any duty) for any damage caused to the Customer, such liability shall in all cases whatsoever be limited to the payment by the Company on its own behalf and on behalf of its servants and agents by way of damages: in the event of loss or damage to the whole of a Consignment, of a sum not exceeding whichever is the greater of (i) an amount calculated at the rate of £1,300 per tonne on the gross weight of the Consignment and (ii) £250: in the event of loss of or damage to part of a Consignment, of the proportion of the sum ascertained in accordance with sub-clause (a) above which the actual value of that part of the Consignment bears to the actual value of the whole of the Consignment: in respect of any claim arising other than as a result of loss of or damage to a Consignment or part thereof, of a sum not exceeding £250 in respect of any one Consignment. Provided that the Company shall be entitled to require proof of the value and weight of the whole Consignment and any part or parts thereof. If the sender, combines packages (assuming they are under service restrictions) without putting them in an outer box, and the parcels come apart in transit, then once the remaining parcel(s) are signed for by the recipient the customer accepts they cannot make a claim for loss (or partial loss)
Provision as to notification of claims
The Company its servants or agents shall not be liable to the Customer in any circumstances or to any extent whatever in respect of damage caused to the Customer unless written notice is received by the Company at its Head Office within 7 days, in the case of damage to the whole or part of a Consignment or loss of part of a Consignment, and, in all other cases, 7 days of the date upon which the Consignment was collected or received by the Company.
Special provision as to the excepted risks and as to strikes etc.
The Company and its servants or agents shall not in any circumstances whatever be liable for any damage caused to the Customer arising directly or indirectly from or in consequence of any of the excepted rinks, or for any expenses whatsoever resulting or arising therefrom. If the Company shall at any time be prevented from or delayed in starting, carrying out or completing any services described in the Schedule by reason or strikes, lockouts, labour disputes, weather conditions, traffic congestion, mechanical breakdown or obstruction of any public or private road or highway or any cause whatever beyond the Company’s control, the Customer shall have no claim for damages or otherwise against the Company its servants or agents for any consequential loss as a result thereof PROVIDED that in the case of mechanical breakdown of one of the Company’s vehicles the Company shall use its best endeavours to provide a replacement vehicle with the minimum practicable delay.
Collections and Deliveries
Collections and deliveries which take more than one hour may be subject to a surcharge. The Company will make one attempt to deliver during normal working hours. If the Consignment has been refused, the Company will return it to the Collection Company’s premises. The cost of return will be invoiced at the same rate agreed on the delivery as to return. If delivery is retain the Consignment to the consignor at the Customers cost.
Sub-Contractors
No objection will be taken to the use by the Company at its own expense of any other carrier and in such circumstances both the Company and such other carrier shall be entitled to the protection of all the terms hereof which exclude or limit the liability of the Company.
Provision for Indemnity by the Customer
The Customer shall for all purposes be treated by the Company and its servants or agents as sole beneficial owner of any and every Consignment and it is agreed that if any other person shall in respect of any Consignment, or part thereof, make any claim against the Company its servants or agents arising out of the subject-matter of this Agreement whether arising out of any negligence, breach of duty or other wrongful act or omission by the Company its servants or agents or otherwise, in respect of any loss or damage (including loss of any kind whether direct or consequential) outside or beyond the liability of the Company to the Customer, as limited herein, then the Customer shall indemnify the Company its servants or agents against any such claim (and all costs incurred therein) in respect whereof the Company is by this Agreement declared to be under no liability to the Customer, or in so far as any such claim shall cause the total liability of the Company to the Customer and all such claimants to exceed the limited sums set out in Clause 3 above.
Provision extending protection to servants or agents of the Company
The Customer agrees with the Company, contracting as agent and/or trustee on behalf of its servants and agents, that in consideration of the said servants and agents carrying out for the benefit of the Customer the obligations under their contracts of employment with or otherwise to the Company, such servants and agents shall be entitled to the protection of all the terms and conditions hereof in any claim by the Customer against such servants or agents (except in so far as relates to deliberately wrongful acts or omissions for which, as between the Customer and the servants or agents, the servants or agents shall be fully liable at law).
Payment
The Customer shall to the extent so stipulated in the Schedule make payments to the Company monthly in advance the first of such payments to be made not later than the date of commencement. Other payments to the Company shall be made within seven days of the date of the Company’s invoice All charges are stated exclusive of Value Added Tax. During any week in which the fulfilment of this Agreement would require the Company to perform the services prescribed herein on a bank or other public holiday the Company shall be entitled to make a reasonable extra charge to reflect any additional costs thereby incurred by the Company.
Items not carried
The Customer undertakes that the Company shall not be required or caused to carry or convey anything if such carriage or conveyance would be unlawful. The Company will not, without its specific agreement. carry livestock. perishable goods. gases, pyrotechnics, arms and ammunition or corrosive, toxic. flammable. explosive, oxidising or radio-active materials. The Company reserves the right to refuse any parcels which are neither the property of, nor sent on behalf of, the Customer.
Customer undertakings
The Customer undertakes that: The Consignment shall be accepted at the relevant delivery point and an appropriate receipt therefor shall be given to the Company’s representative escorting such Consignment, and such receipt shall be conclusive evidence of delivery save where such receipt is obtained as a result of any fraud, collusion or dishonesty on the part of the Company’s representative. In the event of a strike of employees of the Customer or of employees at the relevant collection or delivery points the Company’s servants or agents will not be asked to perform any additional duties or any duties of a strike-breaking nature.
Nature of Agreement
This Agreement and the CMR Regulations and Warsaw Convention (if applicable):
Shall constitute the entire contract between the Company and the Customer and shall not incorporate or be deemed to incorporate the provisions of any other document.
Shall supersede the provisions of any previous contract, warranty or representation made or given relating to the same services as are described in the Schedule.
Variation, etc
No variation, extension or cancellation of the expressed terms of this Agreement (other than the Schedule) shall be binding upon the Company unless and until it is confirmed in writing under the hand of a Director of the Company and, for the avoidance of doubt, it is declared that no person other than such Director has authority to negotiate or enter into any commitment on behalf of the Company the effect of which would or might (but for this present clause) involve the Company in any legal liability whatsoever.
Termination
This Agreement may be determined by either party giving to the other one months previous notice in writing to that effect or forthwith if the other party shall commit any breach of its obligations hereunder or (being an individual) shall commit an act of bankruptcy or (being a Corporation) shall go into liquidation other than for the purposes of reconstruction or amalgamation, or shall suffer the appointment of an administrator or a receiver of any of his or its property or income or make any deed or arrangement with or composition for the benefit of any of his or its creditors.
Applicable Law
This agreement shall be construed in accordance with the laws of England and the Courts of England shall have exclusive jurisdiction in relation to any matters arising out of this Agreement.
