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1 .GENERAL
1.1 The parties to this agreement are:
1.1.1 A.D.M. Transport (“the Courier”) which expression shall where the context allows include his employees agents and Sub-Contractors; and
1.1.2 the person, firm, or company named as Customer in the attached Written Confirmation - (“the Customer”).
1.2 These Conditions shall apply to all Delivery Contracts between the Courier and the Customer to the exclusion of all other terms and conditions, including any terms and conditions which may be incorporated in any acceptance document issued by the Customer, or which the Customer may otherwise seek to apply to the Contract.
1.3 Insofar as not otherwise previously accepted by the Customer in accordance with these Conditions, the Customer’s acceptance of Delivery of the Goods shall constitute acceptance of these Conditions
1.4 For the avoidance of doubt, time shall not be of the essence in the Courier’s performance under the Contract, unless the contrary is agreed in advance by the parties in writing.
2. DEFINITIONS
”Conditions” means the terms and conditions for the supply of courier services as set out herein;
“Consequential Loss” shall include without limitation all economic losses, loss of profits, increased management or labour costs, loss of future business, loss of reputation and goodwill, loss of market or falls in prices of whatever nature, and all other damages costs or expenses or other indirect losses including a liability to or claims by any third party;
“Consignment” means Goods in bulk or contained in one parcel package container or envelope or as the case may be or any separate number of parcels packages containers or envelopes sent at any one time in one load by or on behalf of the Customer from one address to one other address;
“Contract” means a contract for the supply of courier services by the Courier to the Customer, consisting of these conditions and the Written Confirmation (including any annex thereto);
“Dangerous Goods” means Goods which present a comparable hazard including but not limited to Goods included in the list of dangerous goods as defined in The Chemicals (Hazard Information and Packaging for Supply) Regulations 2009, and in the classification and labeling of explosives regulations (The Radioactive Material (Road Transport) (Great Britain) Regulations 1996) and shall include any other relevant legislation or regulations for the time being in force together with any amendments to them;
“Delivery” means the uplift and/or delivery of a Consignment(s) by the Courier upon the instruction of the Customer;
“Force Majeure” means in relation to either party any circumstances beyond the reasonable control of that party including (but not limited to) any act of God, explosion, flood, tempest, fire, accident, war, threat of war, sabotage, insurrection, civil disturbance or requisition, acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority, import regulations, export regulations, embargoes, strikes, lock-outs or other industrial actions or trade disputes, power failure, breakdown in equipment, internet downtime or other telecommunications failures, unforeseen traffic conditions, criminal malicious or negligent actions or acts or omissions of third parties and/or the effect of ionising radiation or uncontrolled nuclear reaction;
“Goods” means those items to be uplifted and/or delivered as listed in the attached Written Confirmation and in the event such items are not listed in the Written Confirmation shall include all and any items collected and/or delivered by the Courier upon the instruction of the Customer other than those expressly excluded herein;
“Sub-Contractor” means any person whose services the Courier engages or makes use of to perform the whole or any part of the services the subject of the Contract;
“Theft Attractive Goods” shall include: money, securities, deeds, bills of exchange, promissory notes, stamps, photographs, mobile telephones and all ancillary equipment, general telephone equipment, documents of title to property,
jewellery, precious stones, gold, silver, platinum, other precious metals, non-ferrous metals other than in components, furs, watches, cassettes, videos, DVDs spirits, tobacco and cigarettes and any other Goods which the Courier may at its sole discretion deem to be valuable; and
“Written Confirmation” means the formal instructions addressed to the Courier by the Buyer in terms of Condition 3.1 hereof.
3. Courier’s obligations
3.1 The Courier shall use its best endeavours to collect the Goods within a reasonable time from receipt of Written Confirmation either by fax or e-mail from the Customer, and the Courier shall use its best endeavours to deliver the Goods to the Delivery address specified at or before the time so specified.
3.2 The Courier shall not be liable for any delay in Delivery caused by the unavailability at the Delivery address of the nominated consignee or other authorised recipient.
3.3 The Courier shall not be liable for loss of or damage to or mis-delivery or delayed Delivery of the Goods occasioned by:
3.3.1 any Force Majeure event;
3.3.2 Seizure under legal process;
3.3.3 Act default or omission of whatever nature of the Customer, his employees or agents or any person having any interest in the Goods; and/or
3.3.4 Insufficient or improper packing labeling or addressing of the Consignment.
4 Customer’s obligations
Subject to the provisions of the Contract, the Customer undertakes:
4.1 That in relation to the Goods, the Customer is either solely beneficially entitled to the Goods or has the authority of all those interested in the Goods to enter into the Contract and to bind them to its terms.
4.2 In the event of any claim by any third party against the Courier arising out of the Contract, to indemnify the Courier against said claim and all related legal and other costs incurred except to the extent that the Customer establishes the Courier would have been liable to the Customer had the original claim been made by the Customerhad the Customer retained title to the Goods.
4.3 To give any instructions requested by the Courier in pursuance of Condition 3 hereof as soon as is reasonably practicable.
4.4 To make all payments as provided for in Condition 13 hereof.
5. Limitation of liability
5.1 The liability of the Courier in the event of loss of or damage to or mis-delivery of the Goods (where the Courier’s liability is not otherwise excluded) shall not exceed the value of the Goods as declared by the Customer (pro rata in the case of an event affecting part only of the Goods) or the cost of repairing any damage or of reconditioning the Goods subject always to a maximum liability of £5,000 per Consignment (or part thereof in the case of an event affecting part only of the Consignment). Where the Customer requires a higher value of cover this shall be expressly negotiated and agreed in writing between the parties prior to Delivery by the Courier. The value of the Goods actually lost damaged or
mis-delivered shall be taken to be their invoice value where they have been purchased by the Customer or otherwise shall be taken to be the replacement cost [to the owner at the commencement of transit / to the Customer] and in all cases shall be taken to include any Customs and Excise duties or taxes payable in respect of the Goods provided always that the Courier shall be entitled to demand proof of value of the Consignment or any part of it.
5.2 The liability of the Courier for delay in Delivery (where the Courier’s liability is not otherwise excluded) shall not exceed a sum equal to the Delivery charges or a proportion of those charges in the case of an event affecting part only of the Goods.
5.3 The Courier shall not be liable for any physical loss, mis-delivery or damage to any Theft Attractive Goods unless the Courier has specifically agreed in writing prior to commencement of Delivery to carry such items and the Customer has agreed in writing to reimburse the Courier (an/or its
Sub-Contractor(s) as the case may be) in respect of all additional costs including insurance costs which result from the carriage of the said Theft Attractive Goods and the loss
mis-delivery or damage is occasioned during transit and is proved to be due to the negligence of either the Courier, its servants or agents.
5.4 The Courier shall not in any event be liable for any Consequential Loss whatsoever and
howsoever arising (including in relation to Theft Attractive Goods).
6. Excluded Goods
6.1 The Customer shall not submit for carriage and the Courier may at any time abandon the carriage of any Goods of a type specified in Condition 6.3 hereof.
6.2 If the Courier abandons Goods in pursuance of Condition 6.1 above, it shall immediately notify the Customer of the circumstances but shall be under no liability in respect of the safe-keeping of the abandoned Goods.
6.3 The following are excluded Goods:
6.3.1 Explosive and inflammable articles firearms including parts of any firearms ammunition and detonators;
6.3.2 Dangerous Goods;
6.3.3 Any article the possession of which in or the importation of which into any country from through or to which the carriage is to take place is illegal or prohibited;
6.3.4 Any article prohibited as hand luggage by British Airways;
6.3.5 Any written, printed or pictorial matter which is obscene, blasphemous, scandalous
or defamatory or proscribed or prohibited;
6.3.6 Human remains; or
6.3.7 Livestock.
7. Warranties and Indemnities
7.1The Customer shall indemnify the Courier in respect of the whole of any fine or penalty or legal and any other costs incurred by the Courier and any other loss outlay or expense sustained by the Courier by reason of the Customer’s breach of any of Conditions 3, 4 or 6 hereof.
7.2 The extent of the Courier’s responsibilities and liabilities are as defined in these Conditions and the Customer shall save harmless and keep the Courier indemnified from and against all claims costs and demands of whatsoever nature and by whomsoever made and howsoever arising from negligence or otherwise in excess of the liability of the Courier under these Conditions arising directly or indirectly from the collection, carriage, storage and/or Delivery of the Customer’s Consignment.
7.3 In the absence of any written notice to the contrary given to the Courier prior to or at the time of Delivery by the Customer,, all Goods and the packaging within which they are contained are deemed to be warranted by the Customer as fit to be carried and stored.
7.4 The Customer agrees that it will not submit to the Courier any Consignment containing dangerous,
verminous, infested, contaminated or condemned Goods unless he shall first have given to the Courier in writing full details of the same and obtained the written agreement of the Courier to the submission of such Consignment.
7.5 The Customer will be responsible for and will indemnify the Courier against all losses damage and claims of whatsoever nature made upon the Courier for which the Courier may be or become liable arising from the tender of a Consignment of the type listed in Condition 7.4 hereof, including any claim for loss and/or damage sustained by the Courier to its own property and injuries or loss sustained by servants and/or Sub-Contractors of the Courier.
8. Third Parties / ASSIGNATION
8.1The Courier shall, at its sole discretion, be entitled to appoint Sub-Contractors and/or agents as it thinks fit in order to fulfill its obligations under the Contract.
8.2 The Customer shall have no right to assign any of its rights or obligations under the Contract unless it has obtained the prior written consent of the Courier.
9. Transit
9.1 “Transit” begins and shall mean when the Goods are handed to or collected by the Courier for Delivery.
9.2 Transit may be suspended at the sole option of the Courier:
9.2.1 when the Goods are held by the Courier at some place other than the destination instructed by the Customer at the request of or for the convenience of the Customer or because the Customer or consignee refuses or is unable to accept Delivery of the Consignment at the intended destination; or
9.2.2 when the Goods are detained for Customs purposes; and Transit shall be deemed to resume when the Courier resumes the Delivery of the Goods.
9.3 Transit shall (unless otherwise previously determined) end:
9.3.1 in the case of Goods to be delivered by the Courier, when they are tendered at the Delivery address as specified by the Customer or at the usual place of Delivery within the customary delivery hours of the district (whichever shall occur first), or at such other times or places as may be specifically agreed between the Courier and the Customer in writing;
9.3.2 in the case of Goods not to be delivered by the Courier, i.e. Goods awaiting order or collection (whether from the Courier’s premises or some other location), at the expiration of one clear day after notice of arrival has been given either orally or in writing to the Customer or consignee or, to the sender (if not the Customer) when the address of the consignee is not known; provided that when the addresses of both the sender and consignee are not known, the said end shall be at the expiration of one clear day after the arrival of the Goods at the place to which they are consigned.
9.4 The Courier shall be entitled to invoice the Customer in respect of any wasted or needless journeys made or for any delay in attempting to effect Delivery of the Goods due to any default of the Customer and/or consignee in accordance with its own costings scales for the time being in force.
10. Means of transport
10.1 Goods accepted by the Courier for Transit may be carried by such means of transport and by such route as the Courier at its sole discretion thinks fit and these Conditions shall apply to whatever means or routes by which the Goods are carried.
10.2 Goods carried wholly or partly by water or air or rail shall in connection with liability in respect of such carriage be carried subject to the applicable conditions of carriage of the carrier who carries the Goods, such conditions to be read as though references therein to the water or air or rail carrier are references to the Courier. In the absence of proof to the contrary, where Goods are carried partly by land and partly by water or air or rail any loss damage or delay shall be deemed to have occurred whilst the Goods are being carried by the Courier.
11. Loading and unloading
11.1 Upon Delivery at a Sender’s or Consignee’s premises (regardless of whether either of those parties is the Customer or not) the Courier shall be under no obligation to provide any plant, power or labour for loading or unloading the Consignment.
11.2 Subject to these Conditions, the Courier’s servants and/or employees or Sub-Contractors have no authority to give assistance [other than under supervision] in the loading and unloading of the Consignment at the usual place of Delivery and the Courier shall not be liable for any loss or damage howsoever caused including negligence attributable to such (or any other) assistance given and the Customer shall indemnify the Courier against any claims made against the Courier in respect of the same.
11.3 Consignments or part thereof requiring special appliances for loading or unloading from a road vehicle are accepted for Delivery by the Courier only on the condition that the Customer has duly ascertained from the consignee that such appliances are available at the Delivery destination. Where the Courier is, without prior arrangement in writing having been made by the Customer, called upon to load or unload Consignments (or parts thereof) for which special appliances are required, the Courier may refuse to undertake such loading or unloading and thereafter terminate the Delivery of the Consignments forthwith by verbal notice to the Customer. In the event that the Courier does undertake such loading or unloading, it shall be under no liability whatsoever to the Customer for any damage, loss or injury howsoever caused, whether or not by the negligence of the Courier, and the Customer shall be responsible for and indemnify the Courier against any liability which the Courier may suffer or incur either itself or in respect of loss, damage or injury suffered by the Courier’s employees or any other third party.
12. Dangerous Goods
12.1 Except where the parties have agreed in writing prior to Delivery, the Courier does not contract to Deliver or store dangerous,
verminous, infested, contaminated or condemned Goods.
12.2 Where the Courier accepts Dangerous Goods for carriage or storage the Dangerous Goods will be carried or stored subject to all the foregoing Conditions and subject also to the special Conditions specified and referred to in this Condition and in the event of conflict between the said special Conditions and the foregoing, the special Conditions shall prevail.
12.3 The special Conditions relating to the carriage of the Dangerous Goods are:
12.3.1 At the time of tendering the Dangerous Goods for carriage or storage the sender shall supply to the Courier a declaration in writing giving adequate and sufficient information in relation to the nature of the Dangerous Goods and the hazard presented (whether or not required to do so by statute);
12.3.2 The Dangerous Goods shall be properly and sufficiently packed and labeled in accordance with any requirements specified by the Courier and always in accordance with all and any statutory regulations in force applicable to the carriage of the Dangerous Goods.
12.3.3 Any additional Conditions and/or requirements communicated to the Customer by the Courier;
12.4 In case of non-compliance with any of the provisions of this Condition 12:
12.4.1 in any event the Courier shall not be under any liability whatsoever in respect of the Dangerous Goods; and
12.4.2 the Customer will be responsible for and shall indemnify the Courier against any loss or damage and any claims made upon the Courier for which the Courier may be or might become liable in respect of injury to persons or damage to property unless the Customer can prove to the satisfaction of the Courier that the loss or damage or injury was solely due to the willful misconduct of the Courier;
12.5 The Courier shall only be liable for loss or damage of the Dangerous Goods or delay in Delivery of the Dangerous Goods if the Customer can prove to the satisfaction of the Courier that such loss, damage or delay was not caused wholly or partly by failure on the Customer’s part to comply with any of the special Conditions contained in this Condition 12.
12.6 The Courier may at any time and at the sender’s sole risk and expense (whether or not the sender is the Customer) return the whole or any part of a Consignment containing Dangerous Goods to the Customer (who shall accept it at once) or destroy or otherwise dispose of the whole or any part thereof if the Courier is of the opinion (at its sole option) that it is necessary or advisable to do so.
13. Payment
13.1 The price payable by the Customer shall be the Courier's quoted price or such other price as shall be agreed in writing by the Courier, failing which the Courier’s costings scales for the time being in force shall apply to the Contract.
13.2 The Customer shall pay for the Delivery under the Contract within 30 days of receipt of the Couriers’ invoice without set-off or deduction or counterclaim. Receipts for payment will be issued only on request.
13.3 In the event of default of payment, the Courier shall be entitled to charge interest at the rate of 5% above the then prevailing base lending rate of National Westminster Bank Plc from the date of invoice until the date of settlement. The Courier shall also be entitled (but not obliged) to suspend or cancel Delivery of any Goods due to/by the Customer in the event of non-payment.
14. Time Limits for Claims
14.1 The Courier shall not be liable for any damage to Goods or delay in Delivery unless it is advised in writing within 21 days of Delivery (or the date specified for Delivery in regard to Goods not received).
14.2 Any damaged Goods must be made available to the Courier for inspection upon request.
14.3 The Courier shall not be liable for any loss or mis-delivery unless it is advised of the claim in writing by the Customer within 14 days of Transit and the claim is made in writing within 42 days after Transit.
14.4 The Courier shall in any event be discharged from all liability whatsoever in respect of the Delivery unless proceedings are commenced by the Customer within a period of one year from the end of Transit.
15. Courier’s lien
The Courier shall have a general right of lien against the owner of the Goods (whether or not the owner is the Customer) for any sums due from the Customer (or other owner) to the Courier and if such lien is not satisfied within a period of time deemed as reasonable by the Courier, it may in its absolute discretion sell all or part of the Goods as agent for the owner and apply the proceeds towards the sums due and the expenses incurred in respect of retention insurance and sale of the Goods and the Courier shall, on accounting to the Customer for any surplus, be discharged from all and any liability whatsoever in respect of the Goods.
16. NOTICES
16.1 Any notice to be given under or in connection with the Contract shall be in writing and signed by or on behalf of the party giving it and shall be served by delivering it personally or sending it by pre-paid recorded delivery or guaranteed delivery or by facsimile, in the case of the Courier to the address or facsimile number and marked for the attention of the individual set out in the Written Acceptance and in the case of the Customer to the address or facsimile number below and marked for the attention of David Muldoon. Any such notice shall be deemed to have been received:-
16.1.1if delivered personally, at the time of Delivery;
16.1.2in the case of recorded or guaranteed delivery post, forty eight (48) hours from the date of posting; and
16.1.3in the case of facsimile, at the time of completion of transmission, as evidenced by a transmission report confirming that all of the pages of the facsimile were successfully transmitted.
17. WAIVER
No failure by the Courier to enforce these Conditions shall constitute a waiver of its rights hereunder.
18. JURISDICTION
The Contract and these Terms and Conditions shall be construed and governed by the Laws of Scotland and each of the parties hereby submits to the exclusive jurisdiction of the Scottish courts as regards any matter, dispute or claim arising out of or in connection with the Contract and its implementation and effect, although the Courier expressly reserves the right to commence proceedings against the Customer anywhere in the world.
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