In this Agreement:
1.1 Words and expressions defined in the Particulars to which these Terms and Conditions are attached shall have the same meanings and, unless the context otherwise requires, the following words and expressions shall have the following meanings:
- Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
- Carriage: the services undertaken by the Company in relation to the Goods, including but not limited to transport (whether by sea, road or any other mode), loading, unloading, storing, warehousing and handling.
- Charges: the charges payable by the Customer for the carriage of the Goods from the Pick-Up Point to the Destination, as set out in the Particulars.
- Conditions: these terms and conditions.
- Container: any article used for and in connection with the carriage of Goods by land, sea or air, including any container, open top container, packing case, trailer, canvas tops, transportable tank, flat, platform, pallet or other device, and any equipment connected thereto or associated therewith.
- Contract: the contract between the Company and the Customer and the Company for the carriage of the Goods, comprising the Particulars and these Conditions.
- Goods: includes all or any part of the goods described in the Particulars and any packaging and/or any Container not supplied by or on behalf of the Company.
- Group: in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party.
- Dangerous Goods: any Goods which are or may become of a dangerous, noxious, hazardous, explosive, flammable or damaging nature (including radioactive material), or which are or may become liable to damage any persons or property, whether or not listed in any official or unofficial international or national code, convention, listing or table.
- Owner: the owner of the Goods or Container and any other person who is or may become interested in them.
- Person: any natural person or persons and any body or bodies corporate.
- Start Date: the day on which the Company is to collect the Goods from, or the Customer is to deliver the Goods to, the Pick-Up Point.
1.2 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision includes any subordinate legislation made from time to time under that statute or statutory provision.
1.3 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.
1.4 A reference to writing or written includes fax and, except under Condition 10, email.
- The Goods
2.1 The Customer warrants that:
- (a) The Customer is either the Owner, or the duly authorised agent of the Owner and that, in the latter case, the Customer has full right title and authority to bind the Owner to the terms of the Contract;
- (b) the description of the Goods set out in the Particulars, including as to their nature, gross weight, gross mass (including the verified actual gross mass of any container packed with packages and cargo items), and measurements are complete and accurate in all respects;
- (c) all Goods will be properly and sufficiently prepared, packed, stowed, labelled and/or marked, and the preparation, packing, stowage, labelling and marking are appropriate to any operations or transactions affecting the Goods and the characteristics of the Goods;
- (d) without limiting the generality of Condition 1(c), the Customer will supply a detailed packing list when delivering the Goods to the Company at the Pick-Up Point containing (among other things) the name and address of the Customer and the consignee, the declared contents and the declared value of the Goods, and all details in the packing list are true complete and accurate in all respects;
- (e) where the Company receives the Goods from the Customer already stowed in or on a Container, the Container is in good condition, and is fit for the purpose of carrying the Goods to the Destination;
- (f) unless otherwise indicated in the Particulars the Goods do not require refrigeration, ventilation or other special treatment, are not Dangerous Goods, are not likely to harbour or encourage vermin or other pests, nor to taint or affect other goods carried by the Company, do not require special handling regarding carriage, handling, or security whether owing to their thief attractive nature or otherwise including, and do not contain any bullion, currency, securities, precious stones, jewellery, valuables, antiques, pictures, human remains, living creatures or plants;
- (g) if the Particulars indicate that the Goods require refrigeration, ventilation or other special treatment, the Particulars contain full and accurate details of the special treatment required, including the particular temperature range to be maintained and the setting of thermostatic, ventilation and/or other special controls;
- (h) if the Particulars indicate that the Goods are Dangerous Goods, the Particulars contain full and accurate details of their nature, character, name, label and classification as appropriate, and the Customer has marked the Goods and the Container or other covering on the outside so as to indicate their nature and character and any precautions to be taken in respect of them, and so as to comply with any domestic and/or international laws or regulation which may be applicable during the Carriage;
- (i) the Goods do not contain any firearms or parts, ammunition, weapons, rugs or other items which are prohibited by law or by common carriers, or which require any governmental licence or permit for transportation;
- (j) without limiting the warranties in Conditions 1(f), (g), (h) and (i) above, if the Goods are Dangerous Goods, they packed in a manner adequate to withstand the risk of Carriage.
2.2 If the Customer is in breach of the warranties given in Conditions 1 or 2.1(g), the Company shall have no liability whatsoever for any loss of or damage to the Goods, howsoever arising and, in any event, the Company shall be deemed to have fulfilled its obligations and shall have no liability whatsoever if the Goods are carried within a range of ± 2o Celsius of any temperature specified in the Particulars.
2.3 If the Customer is in breach of the warranty given in Condition 1(f) and/or if the Company considers that the Goods are liable to become Dangerous Goods or may otherwise constitute a risk to other goods, property, life or health, the Goods may at any time or place be unloaded, destroyed, disposed of, abandoned or rendered harmless without compensation to the Customer and without prejudice to the Company’s right to be paid the Charges, and the Company shall be under no liability to make any general average contribution in respect of such Goods.
2.4 The Customer shall indemnify the Company against all claims, liabilities, loss, damage, delay, costs, fines and/or expenses (including, all duties, taxes, imposts, levies, deposits and outlays of whatsoever nature levied by any authority in relation to the Goods, any liability assumed, or incurred by the Company when, by reason of carrying out the Customer’s instructions, the Company has become liable to any other party and any steps taken by the Company under Condition 3) arising as a result of :
- (a) the Company acting in accordance with the Customer’s instructions;
- (b) any breach by the Customer of any warranty contained in these Conditions;
- (c) the negligence of the Customer;
- (d) the Goods being Dangerous Goods, whether or not the Customer was aware that the Goods were Dangerous Goods; and
- (e) any claims of a general average nature being made against the Company; and
- (f) any other cause whatsoever in connection with the Goods for which the Company is not responsible.
3.1 The Company may place Goods in all kinds of Containers and, unless otherwise specified in the Particulars, all Goods, whether or not of a perishable nature, will be carried in ordinary Containers without special protection, equipment, services or other measures.
3.2 It is the Customer’s responsibility to inspect Containers before filling, packing, stowing or loading commences. The use of Containers shall be prima facie evidence of the Containers being sound and suitable for use. The Customer is deemed to be aware of the dimensions and capacity of any Containers released to it.
3.3 If a Container has not been filled, packed, stuffed or loaded by the Company, the bill of lading will act only as a receipt for the Container, and the Company shall not be liable for loss of or damage to the contents thereof howsoever arising. Where the Company agrees to carry out any tallying, loading, stuffing or securing of Goods within a Container, such activities are performed at the Customer’s sole risk and for the Customer’s sole account.
3.4 In the case of refrigerated Container(s) packed by or on behalf of the Customer, the Customer warrants that the Goods have been properly stowed in the Container and that its thermostatic controls have been adequately set by the Customer. If these requirements are not complied, with the Company shall not be liable for any loss of or damage to the Goods howsoever arising.
3.5 Responsibility for ensuring Goods are presented for Carriage at the correct temperature and with humidity levels appropriately monitored and controlled rests at all time with the Customer, and the Company makes no representations as to the ability of Containers to preserve Goods that are not presented for Carriage at the correct temperature, nor does the Company guarantee the maintenance of any intended level of humidity inside any Container. The Company does not undertake to verify the temperature or humidity levels of any Container, and the term “apparent good order and condition” when used on the face of any Bill of Lading does not apply to the temperature or humidity levels of any Goods and/or Container.
3.6 Without prejudice to the generality of the foregoing, the Company shall not be liable for any loss or damage to the Goods arising from latent defect, derangement, breakdown and/or stoppage of the refrigeration machinery, plant, insulation and/or any apparatus of the Container, vessel, conveyance and/or any other facilities, provided that the Company shall before the beginning of the transport use its reasonable endeavours to ensure that any refrigerated Container is maintained in an efficient state.
3.7 The Company shall be entitled but not obliged to open any Container at any time and to inspect the contents thereof and, if it appears that such contents or any part thereof cannot safely or properly be carried further either at all or without incurring any additional expenses or taking any measures in relation to the Container or its contents or any part thereof, the Company may without notice to the Customer take such measures or incur such expenses as the Company in its sole discretion considers reasonable to either continue the Carriage of the Goods; or to sell or dispose of the Goods; or to abandon the Carriage of the Goods; or to store the Goods ashore or afloat, under cover or in the open at any such place as the Company in its sole discretion considers appropriate at the Customer’s sole risk and expense, and the Customer shall indemnify the Company against any additional expenses so incurred.
3.8 If a Container has not been filled, packed, stuffed or loaded by the Company, the Customer shall indemnify the Company in respect of any loss, injury, costs, damage, liability or expense incurred by the Company caused by:
- (a) the manner in which the Container has been filled, packed, stuffed or loaded;
- (b) the unsuitability of the contents for carriage in Containers;
- (c) the incorrect setting of any thermostatic, ventilation or other special controls on the Container;
- (d) the malfunction, unsuitability or defective condition of any Container supplied by the Customer, or of any Container supplied by the Company arising without any want of due diligence on the part of the Company to make the Container reasonably fit for the purpose for which it is required; or
- (e) the malfunction, unsuitability or defective condition of the Container, provided that if the Container was supplied by the Company, the malfunction, unsuitability or defective condition would have been apparent upon reasonable inspection by the Customer at or prior to the time when the Container was filled, packed or stowed or loaded.
3.9 Without prejudice to the generality of the preceding Conditions or to any other provision of the Contract, where the Container has been delivered by the Company with the original seal intact, the Company will not in any circumstances be liable for any shortage of Goods identified upon delivery. Containers packed by the Customer shall be delivered to the Company with a high security seal intact and with the seal number noted of the face of the bill of lading. If the Container is not so sealed, the Company may at the Customer’s sole risk and expense return the Container to the Customer for sealing or to affix a seal itself.
3.10 The Customer is responsible for returning all and any Containers supplied by or on behalf of the Company unpacked, with interiors clean, odour free, undamaged and in the same condition as received to the point or place designated by the Company within the time prescribed. Failure to comply with this Condition will result in the Customer being liable for detention charges or other losses or expenses arising from such failure, including but not limited to costs of replacement, transportation and repair.
3.11 All Containers supplied to the Customer by or on behalf of the Company are held at the Customer’s sole risk until redelivered to the Company. The Customer is responsible for and shall indemnify the Company for all loss of and/or damage and/or delay to such Containers.
- Supply of services
4.1 In performing the Contract, the Company shall act with reasonable care and skill but, unless expressly specified otherwise in the Particulars, the Company shall have complete discretion as to the means, route and procedure by which it performs its obligations under the Contract.
4.2 Without limiting the generality of Condition 1, the Company may, at any time, without notice to the Customer and for any purpose whatsoever (including loading or unloading other goods, bunkering, embarking or disembarking any person(s), undergoing repairs, towing or being towed, adjusting instruments, making trial trips, dry-docking and assisting vessels in all situations):
- (a) use any method, manner, means and/or route whatsoever to perform the Carriage;
- (b) stow the Goods in any type of Container or similar article of transport used to consolidate Goods, and consolidate the Goods with other goods belonging to third parties.
- (c) transfer the Goods from one conveyance to another including transhipping or carrying the same on a vessel or on any other means of transport whatsoever, notwithstanding that such transhipment or forwarding may not have been contemplated or provided for herein;
- (d) proceed with or without pilots by any route in the Master’s discretion whether or not the nearest or most direct or customary or advertised route at any speed and proceed to or stay at or return to any place or port whatsoever once or more often and in any order;
- (e) load and unload the Goods at any place or port (whether or not such place is the Destination named in the Particulars) and store the Goods at any such place or port, and/or unpack and remove Goods packed into a Container and forward via Container or otherwise;
- (f) comply with any other orders or recommendations given by any government authority or any person or body acting or purporting to act as or on behalf of such government authority or having under the terms of insurance on the conveyance employed by the Company the right to give orders or directions;
and anything done or not done in accordance with this Condition 4.2, and any delay arising therefrom, shall be deemed to be within the terms of the Contract and shall not be a deviation therefrom.
4.3 Subject to Conditions 4 and 4.5 below, the Company shall be entitled to perform its obligations under the Contract as principal, or to procure their performance as agent of the Customer.
4.4 When the Company contracts for any services as a principal, it may perform such services itself, or may subcontract the whole or any part of such services to any other person on any terms whatsoever.
4.5 When the Company acts as an agent on behalf of the Customer, the Company shall be entitled, and the Customer hereby expressly authorises the Company, to enter into all and any contracts on behalf of the Customer as may be necessary or desirable to fulfil the Customer’s instructions, and whether such contracts are subject to the trading conditions of the parties with whom such contracts are made, or otherwise. The Company shall, within 14 days’ notice given by the Customer, provide evidence of any contract entered into as agent for the Customer. Insofar as the Company may be in default of the obligation to provide such evidence, it shall be deemed to have contracted with the Customer as a principal for the performance of the Customer’s instructions.
4.6 In all and any dealings with H.M. Revenue and Customs for and on behalf of the Customer and/or Owner, the Company is deemed to be appointed, and acts only in the name of and on behalf of the Customer and/or Owner, as Direct Representative (as defined by Article 18 of Regulation (EU) No. 952/2013 of the European Parliament and of the Council, as amended).
4.7 The Company shall use all reasonable endeavours to deliver the Goods by any delivery date specified in the Particulars, but any such dates shall be estimates only and time shall not be of the essence for delivery.
4.8 If the Particulars provide any special instructions relating to the delivery or release of the Goods in specified circumstances (such as, but not limited to, against payment or against surrender of a particular document), any third parties engaged by the Company to effect compliance with these instructions shall be so engaged by the Company as agent for the Customer.
4.9 If the Customer fails to take delivery of the Goods when the Company delivers them to the Destination, then, except where that failure or delay is caused by the Company’s failure to comply with its obligations under the Contract:
- (a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the date when the Company delivered them; and
- (b) the Company shall store the Goods, at the sole risk of the Customer, until delivery takes place, and the Company’s liability in respect of the Goods so sored shall thereupon cease. The Company may charge the Customer for all related costs and expenses (including insurance).
4.10 The Company shall be entitled at the expense of the Customer to dispose of or deal with (by sale or otherwise as may be reasonable in all the circumstances):-
- (a) any Goods which have been held by the Company for 60 days and which cannot be delivered as instructed after at least 21 days’ notice in writing to the Customer, or (where the Customer cannot be traced and reasonable efforts have been made to contact any parties who may reasonably be supposed by the Company to have any interest in the Goods) without notice; and
- (b) any Goods which have perished, deteriorated, or altered, or are in immediate prospect of doing so in a manner which has caused or may reasonably be expected to cause loss or damage to the Company, or third parties, or to contravene any applicable laws or regulations, without prior notice.
- Customer’s obligations
5.1 The Customer shall comply with all regulations or requirements of customs, port and other authorities and shall pay all duties, taxes, fines, imposts, expenses or losses incurred or suffered by reason thereof, or by reason of any illegal, incorrect or insufficient marking, numbering or addressing of the Goods, including without prejudice to the generality of the foregoing Charges for any additional Carriage undertaken, and shall indemnify the Company in respect thereof.
5.2 The Customer shall co-operate with the Company in all matters relating to the Services, and shall provide, in a timely manner, such information as the Company may reasonably require in order to perform its obligations under the Contract, and ensure that such information is accurate and complete in all material respects.
5.3 If the Company’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, the Company shall:
- (a) not be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay;
- (b) be entitled to payment of the Charges despite any such prevention or delay; and
- (c) be entitled to recover any additional costs, charges or losses the Company sustains or incurs that arise directly or indirectly from such prevention or delay.
- Charges and payment
6.1 In consideration for the performance of the Company’s obligations under the Contract, the Customer shall pay the Company the Charges in accordance with this Condition 6.
6.2 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Company to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Company, pay to the Company 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.
6.3 The Customer shall pay each invoice submitted by the Company:
- (a) within 30 days of the date of the invoice (or in accordance with any other credit terms specified in the Particulars); and
- (b) in full and in cleared funds to a bank account nominated in writing by the Company,
and time for payment shall be of the essence of the Contract.
6.4 All amounts due under the Contract from the Customer to the Company shall be paid by in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
6.5 If the Customer fails to make any payment due to the Company under the Contract by the due date for payment, then, without limiting the Company’s remedies under any other clause herein:
- (a) any and all other sums properly earned by and/or otherwise due to the Company which, but for this Condition 5, would otherwise not yet be payable by the Customer, whether by virtue of an agreed credit period or otherwise, shall become immediately payable in full;
- (b) 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 Condition will accrue each day at 4% a year above the Bank of England’s base rate from time to time, or at 4% a year for any period when that base rate is below 0%.
- (c) the Company may suspend performance of the Contract until payment has been made in full;
the Company may charge the Customer for storing the Goods at its current rates from time to time.
6.6 Subject to Condition 7, the Company has a general lien on all Goods and any associated documents in its possession, custody or control for all sums for all sums payable to the Company (including but not limited to Charges, additional charges payable under any provision of the Contract, primage, dead freight, demurrage, storage charges, pre-carriage charges, on-carriage charges, detention charges, salvage, general average contributions and any other charges and expenses whatsoever, and whether incurred by the Company as the Customer’s agent or not, including costs of exercising the rights under this Condition 6.6) due and payable at any time under the Contract or on any other account whatsoever, whether relating to Goods belonging to, or services provided by or on behalf of the Company to the Customer or Owner, and/or in respect of any other previously unsatisfied debts whatsoever due to the Company by the Customer. The Company shall:
- (a) be entitled, on at least 21 days’ notice in writing to the Customer, to sell or dispose of or deal with such Goods or documents at any time and any place by public auction or by private treaty at its sole discretion, whether the Carriage is completed or not, as agent for, and at the expense of, the Customer in such manner and at such price as it thinks fit and to apply the proceeds in or towards the payment of such sums;
- (b) upon accounting to the Customer for any balance remaining after payment of any sum due to the Company, and for the cost of sale and/or disposal and/or dealing, be discharged of any liability whatsoever in respect of the Goods or documents.
The Company’s lien shall survive delivery of the Goods, and nothing in this Condition shall prevent the Company from recovering from the Customer the difference between the amount due from him to the Company and the amount realised by the exercise of the rights given to the Company under this Condition.
6.7 When the Goods are liable to perish or deteriorate, the Company’s right to sell or dispose of or deal with the Goods shall arise immediately upon any sum becoming due to the Company, subject only to the Company taking reasonable steps to bring to the Customer’s attention its intention to sell or dispose of the Goods before doing so.
6.8 Storage charges shall continue to accrue on any Goods detained under lien;
6.9 Where liability arises in respect of claims of a general average nature in connection with the Goods, the Customer shall promptly provide security to the Company, or to any other party designated by the Company, in a form acceptable to the Company.
6.10 The Company shall be entitled to retain and be paid all brokerages, commissions, allowances and other remunerations customarily retained by, or paid to, freight forwarders.
6.11 If the Particulars contain any special instructions for the Company to collect any freight, duties, charges, dues, or other expenses from any other person, it shall do so as agent of the Customer and, in the absence of evidence of payment (for whatever reason) by such other person, the Customer shall remain primarily responsible for the payment of all Charges and shall promptly pay the same to the Company on receipt of evidence of proper demand by the Company.
7.1 Unless otherwise provided in the Particulars, the Company will not arrange insurance for the Goods.
7.2 Any insurances arranged by the Company will be subject to the usual exceptions and conditions of the policies of the insurers or underwriters taking the risk.
7.3 Unless the Particulars expressly provide otherwise, the Company shall not be under any obligation to effect a separate insurance on the Goods, but may declare it on any open or general policy held by the Company.
7.4 Insofar as the Company agrees to arrange insurance, it acts solely as agent for the Customer.
- Limitation of liability
8.1 No representations are made by the Company as to the weight, contents, measure, quantity, quality, description, condition, marks, numbers or value of the Goods, and the Company shall be under no responsibility whatsoever in respect of such description or particulars. In particular, the Company accepts no responsibility in respect of any particulars or information that relate to contracts to which the Company is not a party (including but not limited to any letter of credit, import licence or sales contract), and any such particulars and/or information are included at the Customer’s sole risk for its own convenience, and does not in any way constitute a declaration of value or increase the Company’s liability under the Contract.
8.2 The Company is not liable for any loss howsoever caused unless and to the extent that it is caused by the negligence or breach of statutory duty of the Company or its employees and in any event the Company is not liable for:
- (a) acts and omissions by third parties, such as, but not limited to carriers, warehousemen, stevedores, port authorities and other freight forwarders, unless the Company has failed to exercise due diligence in selecting, instructing or supervising such third parties;
- (b) loss or damage to goods, which occurs whilst the goods are not in actual custody and control of the Company
- (c) valuables or Dangerous Goods not identified as such in the Particulars;
- (d) inherent vice and nature of the Goods
- (e) consequences of loading and unloading operations which the Company has not performed;
- (f) lack of, or defective packing, markings or stowage insofar as the Company has not executed the packing, markings or stowage.
8.3 Unless the Particulars expressly provide otherwise, the Company accepts no responsibility with regard to any failure to adhere to agreed departure or arrival dates of Goods.
8.4 Where the Particulars expressly provide that the Company accepts responsibility with regard to any failure to adhere to agreed departure or arrival dates of Goods, the Company’s liability for loss or damage as a result of failure to adhere to agreed departure or arrival dates, shall not in any circumstances whatever exceed a sum equal to twice the amount of the Company’s Charges for the carriage of the Goods affected.
8.5 Subject to Conditions 4 and 8.3 above and Condition 8.9 below, the Company’s total liability in contract, tort (including negligence), breach of statutory duty, or otherwise howsoever arising, under or in connection with the Contract, and notwithstanding that the cause of loss or damage be unexplained, shall not exceed:
- (a) in the case of claims for loss or damage to Goods with no Declared Value, the lowest of :
- the value of any loss or damage;
- the value of the Goods when they were, or should have been, shipped; and
- the amount of the Company’s Charges for the carriage of the Goods lost or damaged;
- (b) in the case of claims for loss or damage to Goods with a Declared Value, the lowest of :
- the value of any loss or damage;
- the value of the Goods when they were, or should have been, shipped; and
- the sum of £300.
8.6 The value of the Goods shall be determined according to the sales price as indicated in the sales invoice or, if there is no such invoice, the current market price at the time and place of taking over the Goods or if there is no current market price, by reference to the normal value of the Goods of the same kind and quality.
8.7 Any partial loss or damage shall be adjusted on a pro rata basis.
8.8 Where the Particulars expressly so provide, the Company will accept liability in excess of the limits set out in Conditions 2 and 8.3 above upon the Customer agreeing to pay for additional insurance cover, in which event the Company’s liability howsoever arising and, notwithstanding that the cause of loss or damage be unexplained, shall be limited to the amount accepted as payable and paid by the insurance company under the contract of insurance for each and every claim and in any event not exceed the amount of such insurance cover.
8.9 Subject to Condition 8, the Company shall not in any circumstances whatsoever be liable for indirect or consequential loss such as (but not limited to) loss of profit, loss of market, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss of use or corruption of software, data or information, loss of or damage to goodwill, or the consequences of delay or deviation, however caused.
8.10 Any claim by the Customer against the Company arising in respect of any service provided for the Customer, or which the Company has undertaken to provide, shall be made in writing and notified to the Company within seven days of the date upon which the Customer became, or ought reasonably to have become, aware of any event or occurrence alleged to give rise to such claim, and any claim not made and notified as aforesaid shall be deemed to be waived and absolutely barred, except where the Customer can show that it was impossible for him to comply with this time limit, and that he has made the claim as soon as it was reasonably possible for him to do so.
8.11 Notwithstanding the provisions of Condition 10, the Company shall in any event be discharged of all liability whatsoever and howsoever arising in respect of any service provided for the Customer, or which the Company has undertaken to provide, unless suit be brought and written notice thereof given to the Company within thirty days from the date of the event or occurrence alleged to give rise to a cause of action against the Company.
8.12 Nothing in this Condition 8 limits any liability which cannot legally be limited, including liability for:
- (a) death or personal injury caused by negligence;
- (b) fraud or fraudulent misrepresentation.
9.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or customers of the other party, or of any member of the group to which the other party belongs, except as permitted by Condition 2.
9.2 Each party may disclose the other party’s confidential information:
- (a) to its employees, officers, representatives, 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, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this Condition 9; and
- (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
9.3 Neither party shall use any other party’s confidential information for any purpose other than to perform its obligations under the Contract.
10.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:
- (a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
- (b) sent by fax to its main fax number or sent by email to the address specified in the Particulars.
10.2 Any notice or communication shall be deemed to have been received:
- (a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
- (b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and
- (c) if sent by fax or email, at the time of transmission in the place of receipt, or, if this time does not occur between 9.00am and 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt, at 9.00am on the next working day there.
10.3 This Condition does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
10.4 A notice given under the Contract is not valid if sent by email.
- Miscellaneous and general
11.1 The Company shall not 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 war, rebellion, revolution, insurrection, usurped power or confiscation, nationalization or requisition by or under orders of any government or public or local authority, strikes, lock-outs, stoppages or restraints of labour, fire, explosion, natural disasters, acts of god, acts of robbery or any other events, circumstances or causes of whatsoever nature beyond the Company’s reasonable control or the consequences of which the Company is unable to avoid by the exercise of reasonable diligence.
11.2 The Customer shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract without the Company’s prior written consent.
11.3 The Company may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights under the Contract,
11.4 The Contract 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.
11.5 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. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
11.6 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 trade, custom, practice or course of dealing.
11.7 No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
11.8 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.
11.9 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.
11.10 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
11.11 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. The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
11.12 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, and each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any such dispute or claim.