1 Interpretation
1.1 The following definitions apply in these terms of business (the ‘Terms’):
BIFA Conditions means BIFA’s Standard Trading Conditions;
Booking means the period in which the Carrier performs the Services or carries out any other work on behalf of the Client as agreed between Freight Logistics Solutions and the Client;
Business Day means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business;
Carrier means the business performing the Services or other work carried on behalf of the Client as identified on the Order.
Client means any person, firm or corporation who approaches Freight Logistics Solutions to arrange the movement of cargo on their behalf;
Consignment means goods, whether a single item or in bulk or contained in one parcel, package or container, as the case may be, or any number of separate items, parcels, packages or containers, confirmed by Freight Logistics Solutions to be transported from one address to one address;
Consignment Charge means the sums payable to the Carrier by Freight Logistics Solutions for the Services including but not limited to toll charges and congestion charges as set out in the Order;
Contract means the contract between Freight Logistics Solutions and the Carrier for the supply of Services in accordance with these Terms;
Freight Logistics Solutions means Freight Logistics Solutions Limited of registered office: FLS, Skewfields, Lower Mill, Pontypool, Torfaen, NP4 0XZ and of registered company 10190328 or any of its subsidiary, associated or holding companies;
Order means Freight Logistics Solutions’ order for the supply of Services, as set out in Freight Logistics Solutions’ booking/ purchase form, or in Freight Logistics Solutions’ written acceptance of the Carrier’s quotation, as the case may be;
RHA Conditions means the Road Haulage Association – Conditions of carriage 2009;
Services means the services to be provided by the Carrier for the benefit of the Client under the Contract, as set out in the Order; and
1.2. A reference to a statue or statutory provision is a reference to it as amended or re-enacted. A reference to a statue or statutory provision includes all subordinate legislation made under that statue 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 email.
2 Basis of Terms
2.1. The Order constitutes an offer by Freight Logistics Solutions to purchase the Services in accordance with these Terms.
2.2. The Order shall be deemed to be accepted on the earlier of:
2.2.1. the Carrier issuing written acceptance of the Order; or
2.2.2. any act by the Carrier consistent with fulfilling the Order,
at which point and on which date the Contract shall come into existence.
2.3. These Terms apply to the Contract to the exclusion of any other terms that the Carrier seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.4. If there is any conflict between these Terms and the terms of the RHA Conditions and/or the BIFA Conditions, these Terms will prevail.
2.5. For the avoidance of doubt, Freight Logistics Solutions is under no obligation to commit to or guarantee any level of business or Services with the Carrier and is under no obligation to place an Order.
3 Services and Obligations of the Carrier
3.1. Freight Logistics Solutions will introduce the Carrier to the Client(s) set out in the Order to carry the Consignments as requested.
3.2. The Carrier shall, from the date set in the Order, and for the duration of the Contract provide the Services to the Client in accordance with the terms of the Contract.
3.3. The Carrier shall, during the Booking:
3.3.1. meet any performance dates for the Services specified in the Order or that Freight Logistics Solutions and/or the Client notifies to the Carrier and time is of the essence in relation to any of those performance dates;
3.3.2. co-operate with Freight Logistics Solutions in all matters relating to the Services, and comply with all instructions of Freight Logistics Solutions;
3.3.3. perform the Services with the best care, skill and diligence in accordance with best practice in the Carrier’s industry, profession or trade;
3.3.4. use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Carrier’s obligations are fulfilled in accordance with the Contract;
3.3.5. ensure that the Services will conform with all descriptions, standards and specifications set out in the Order;
3.3.6. provide all equipment, tools and vehicles and such other items as are required to provide the Services;
3.3.7. use the best quality goods, materials, standards and techniques, and ensure that all goods and materials supplied and used in the Services or transferred to Freight Logistics Solutions and/or the Client, will be free from defects
3.3.8. obtain and at all times maintain all licences and consents which may be required for the provision of the Services;
3.3.9. comply with all applicable laws, regulations, regulatory policies, guidelines or industry codes which may apply from time to time to the provision of the Services, and with all Freight Logistics Solutions’ and the Client’s policies and procedures communicated to the Carrier (as amended from time to time)
3.3.10. observe all health and safety rules and regulations and any other security requirements that apply at any of Freight Logistics Solutions’ and the Client’s premises;
3.3.11. hold all materials, equipment and tools, drawings, specifications and data supplied by Freight Logistics Solutions and the Client to the Carrier (‘Input Materials’) in safe custody at its own risk, maintain the Input Materials in good condition until returned to Freight Logistics Solutions or the Client (as the case may be), and not dispose or use Input Materials other than in accordance with Freight Logistics Solutions’ or the Client’s written instructions or authorisation (as the case may be);
3.3.12. not do or omit to do anything which may cause Freight Logistics Solutions and the Client to lose any licence, authority, consent or permission on which it relies for the purposes of conducting its business, and the Carrier acknowledges that Freight Logistics Solutions and the Client may rely or act on the Services;
3.3.13. comply with any acceptance requirements provided by Freight Logistics Solutions;
3.3.14. subject to clause 3.4, not undertake any bookings from or carry out any services from any Client, other than that specified in the Order or that which has been requested or agreed in writing by Freight Logistics Solutions;
3.3.15. verify collection of the Consignment by providing Freight Logistics Solutions with a signed delivery note within 5 days of delivery;
3.3.16. exercise all supervision, direction and control over the cargo and Consignment from the point of collection to the point of delivery;
3.3.17. take all steps that may be required by law in relation to the insurance, maintenance and safety of vehicles, and satisfy itself that such vehicles are roadworthy and properly maintained;
3.3.18. ensure that all trailers provided are fit for purpose against the requirements set out on the Order;
3.3.19. ensure that all vehicles without exception have necessary equipment to allow two-way communication with drivers at all times;
3.3.20. in the case of UK Consignments, comply with the RHA Conditions;
3.3.21. in the case of international Consignments, comply with the BIFA Conditions;
3.3.22. not arrange for any trans-shipment or subcontracting of the Services, unless agreed prior in writing by Freight Logistics Solutions.
3.4. In the event that the Carrier does engage with a Client in breach of clause 3.3.14, the Carrier undertakes to pay Freight Logistics Solutions an introducers fee of £5,000 + VAT.
4 Freight Logistics Solutions remedies
4.1. If the Carrier fails to perform the Services by the applicable dates, Freight Logistics Solutions shall, without limiting or affecting other rights or remedies available to it, have one or more of the following rights:
4.1.1. to terminate the Contract with immediate effect by giving written notice to the Carrier;
4.1.2. to refuse to accept any subsequent performance of the Services which the Carrier attempts to make;
4.1.3. to recover from the Carrier any costs incurred by Freight Logistics Solutions and the Client in obtaining substitute services from a third party;
4.1.4. to require a refund from the Carrier of sums paid in advance for Services that the Carrier has not provided; and
4.1.5. to claim damages for any additional costs, loss or expenses incurred by Freight Logistics Solutions and the Client which are in any way attributable to the Carrier’s failure to meet such dates.
4.2. If the Carrier has supplied Services that do not comply with the requirements of clause 3.3.5 then, without limiting or affecting other rights or remedies available to it, Freight Logistics Solutions shall have one or more of the following rights:
4.2.1. to terminate the Contract with immediate effect by giving written notice to the Carrier;
4.2.2. to require the Carrier to provide repeat performance of the Services, or to provide a full refund of the price paid for the Services (if paid);
4.2.3. to refuse to accept any subsequent performance of the Services which the Carrier attempts to make;
4.2.4. to recover from the Carrier any expenditure incurred by Freight Logistics Solutions and/or the Client in obtaining substitute services or deliverables from a third party; and
4.2.5. to claim damages for any additional costs, loss or expenses incurred by Freight Logistics Solutions arising from the Carrier’s failure to comply with clause 3.3.5.
4.3. These Terms shall extend to any substituted or remedial services provided by the Carrier.
4.4. Freight Logistics Solutions’ rights and remedies under the Contract are in addition to, and not exclusive of, any rights and remedies implied by statute and common law.
5 Fees
5.1. The Consignment Charge for the Services shall be set out in the Order and shall be the full and exclusive remuneration of the Carrier in respect of the performance of the Services. Unless otherwise agreed in writing by Freight Logistics Solutions, the Consignment Charge shall include every cost and expense of the Carrier directly or indirectly incurred in connection with the performance of the Services.
5.2. The Carrier shall invoice Freight Logistics Solutions on completion of the Services, and shall send such invoices electronically to invoices@flsgroup.co.uk. Each invoice shall be in Pounds Sterling only, and include such supporting information required by Freight Logistics Solutions to verify the accuracy of the invoice, including:
5.2.1. the relevant purchase order number; and
5.2.2. signed proof of delivery of the Consignment.
5.3. In consideration of the supply of the Services by the Carrier, Freight Logistics Solutions shall, subject to the Carrier fulfilling its obligations under these Terms, pay the invoiced amounts within 30 days at the end of the following month, of a correctly rendered invoice to a bank account nominated in writing by the Carrier.
5.4. All amounts payable by Freight Logistics Solutions under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (‘VAT’). Where any taxable supply for VAT purposes is made under the Contract by the Carrier to Freight Logistics Solutions, Freight Logistics Solutions shall, on receipt of a valid VAT invoice from the Carrier, pay to the Carrier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.5. The Carrier shall maintain complete and accurate records of the time spent and materials used by the Carrier in providing the Services and shall allow Freight Logistics Solutions to inspect such records at all reasonable times on request.
5.6. Freight Logistics Solutions may at any time, without notice to the Carrier, set off any liability of the Carrier to Freight Logistics Solutions against any liability of Freight Logistics Solutions to the Carrier, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under the Contract. Any exercise by Freight Logistics Solutions of its rights under this clause shall not limit or affect any other rights or remedies available to it under the Contract or otherwise.
6 Indemnity
6.1. The Carrier shall indemnify Freight Logistics Solutions against all liabilities, costs, expenses, damages and losses (including but not limited to 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 professional costs and expenses) suffered or incurred by Freight Logistics Solutions arising out of or in connection with:
6.1.1. any claim brought against Freight Logistics Solutions for actual or alleged infringement of a third party’s intellectual property rights arising out of, or in connection with, the receipt, use or supply of the Services; and
6.1.2. any claim made against Freight Logistics Solutions by the Client or by a third party arising out of, or in connection with, the supply of the Services.
6.2. This clause 6 shall survive termination of the Contract.
7 Insurance
During the term of the Contract, the Carrier shall maintain in force, with a reputable insurance company, professional indemnity insurance and public liability insurance (including valid Goods in Transit insurance providing full cover for all cargo in place, with no exclusions or restrictions to theft claims or unattended risks) to cover the liabilities that may arise under or in connection with the Contract and shall, on Freight Logistics Solutions’ request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each insurance.
8 Termination
8.1. Without limiting or affecting any other right or remedy available to it, Freight Logistics Solutions may terminate the Contract:
8.1.1. with immediate effect by giving written notice to the Carrier if:
8.1.1.1. there is a change of control of the Carrier; or
8.1.1.2. the Carrier’s financial position deteriorates to such an extent that in Freight Logistics Solutions’ opinion the Carrier’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
8.1.1.3. the Carrier commits a breach of clause 3.3.9,
8.1.2. for convenience by giving the Carrier 1-week written notice.
8.2. Without limiting or affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
8.2.1. the other party commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
8.2.2. the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or
8.2.3. the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
8.3. Termination of the Contract shall not affect any of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
8.4. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
9 General
9.1. Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control. If the period of delay or non-performance continues for 2 months, the party not affected may terminate the Contract by giving 14 days’ written notice to the affected party.
9.2. Assignment and other dealings.
9.2.1. Freight Logistics Solutions may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
9.2.2. The Carrier shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of Freight Logistics Solutions.
9.3. Confidentiality.
9.3.1. Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 9.3.2.
9.3.2. Each party may disclose the other party’s confidential information:
9.3.2.1. to its employees, officers, representatives, Carriers 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, Carriers or advisers to whom it discloses the other party’s confidential information comply with this clause 9.3; and
9.3.2.2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
9.3.3. Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
9.4. Entire agreement. 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.
9.5. Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by the parties, or their authorised representatives (being, in the case of Freight Logistics Solutions, a director).
9.6. Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
9.7. Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed 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 9.7 shall not affect the validity and enforceability of the rest of the Contract.
9.8. Notices.
9.8.1. Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be 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 sent by fax to its main fax number or sent by email to the address specified by the parties.
9.8.2. A notice or other communication shall be deemed to have been received: if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; 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; if sent by fax or email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 9.8.2, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
9.8.3. This clause 9.8 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.
9.9. Third party rights. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
9.10. Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with, the law of England and Wales.
9.11. Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
FLS, Skewfields, Lower Mill, Pontypool, Torfaen, NP4 0XZ, UK. tel: +44(0)1633 288 400 fax: +44(0)1633 288 401 email: info@flsgroup.co.uk www.freightlogisticssolutions.co.uk Registered in England and Wales: 10190328 – VAT No: 245022345