Terms & Conditions
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INTRODUCTION
(A) Freightline is in the business of providing logistics and warehousing services.
(B) The Customer wishes to obtain and Freightline wishes to provide such services in accordance with these terms and conditions.
AGREED TERMS
1. Interpretation
The following definitions and rules of interpretation apply in these Terms.
1.1 Definitions:
Applicable Laws: the laws of England and Wales and any other laws or regulations, regulatory policies, guidelines or industry codes which apply to the exercise of the parties’ rights or the performance of their obligations.
Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Business Hours: the period from 9.00 am to 5.00 pm on any Business Day.
Change: an amendment to:
a) the scope, nature, volume or execution of the Services under these Terms; or
b) any other term or schedule of these Terms.
Change in Law: any change in any Applicable Law which impacts on the performance of the Services and which comes into force after the Commencement Date.
Charges: the sums payable for the Services as set out in Order.
Consents: all permissions, consents, approvals, certificates, permits, licences, agreements and authorities (whether statutory, regulatory, contractual or otherwise) necessary for the fulfilment of the Contract both by the Customer and the Supplier (as the case may be).
Consignee: the person to whom the Customer instructs Freightline to deliver a Consignment.
Consignment: any consignment of Goods that are the subject of a Delivery Instruction.
Container: any pallet, packing case, container, tanker, trailer or other item used to carry Goods.
Contract: the contract between Freightline and the Customer for the supply Services in accordance with these Terms, and/or the Delivery Instruction and/or the Order.
Customer’s Intellectual Property: Intellectual Property owned by or licensed to the Customer and used on or in relation to the Goods.
Dangerous Goods: any goods that are of a type that are or may become poisonous, corrosive, flammable, volatile, explosive or radioactive.
Delivery: the transfer of physical possession of a Consignment to the Consignee or its agent.
Delivery Instruction: a written instruction from the Customer to Freightline to deliver Goods to a Consignee.
Delivery Point: the location for Delivery specified in the Delivery Instruction.
Delivery Time: the time for Delivery specified in the Delivery Instruction. Dispute Resolution Procedure: the procedure set out in clause 21.
Facilities: a facility at which the Goods received, organised, stored under controlled conditions, prior to Delivery.
General Change in Law: a Change in Law where the change is of a general legislative nature, or which generally affects or relates to the supply of services which are the same as, or similar to, the Services.
Good Industry Practice: means using the standards, practices, methods and procedures conforming to the Applicable Laws and exercising that degree of skill and care, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced person engaged in a similar type of undertaking under the same or similar circumstances.
Goods: goods delivered to Freightline for storage and subsequent Delivery.
HMRC: His Majesty’s Revenue & Customs.
Insolvency Event: in respect of either party or a Subcontractor:
(a) other than for the purposes of a bona fide reconstruction or amalgamation, such party passing a resolution for its winding up, or a court of competent jurisdiction making an order for it to be wound up or dissolved, or that party being otherwise dissolved;
(b) the appointment of an administrator of, or the making of an administration order in relation to, either party, or the appointment of a receiver or administrative receiver of, or an encumbrancer taking possession of or selling, the whole or any part of the entity’s undertaking, assets, rights or revenue;
(c) that party applies to court for, or obtains a moratorium under Part A1 of the Insolvency Act 1986;
(d) that party entering into an arrangement, compromise or composition in satisfaction of its debts with its creditors or any class of them, or taking steps to obtain a moratorium, or making an application to a court of competent jurisdiction for protection from its creditors;
(e) that party being unable to pay its debts, or being capable of being deemed unable to pay its debts, within the meaning of section 123 of the Insolvency Act 1986; or
(f) that party entering into any arrangement, compromise or composition in satisfaction of its debts with its creditors.
Intellectual Property: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order: an order accepted by the Customer or a person authorised to do so on its behalf for delivery of Goods to a Consignee.
Owner: the person who owns or is entitled to possession of the Goods.
Prohibited Goods: Dangerous Goods, the Goods listed in Schedule 1 to these Terms and any other Goods which, at the sole discretion of Freightline, it chooses not to Deliver or store.
Service Levels: the service levels to which the Services are to be provided, as set out in Schedule 3.
Services: the warehousing and carriage services to be provided by Freightline in respect of the Goods, the scope of which is more particularly set out in Schedule 2, including services which are incidental or ancillary to such services.
Subcontract: any contract between Freightline and a third party pursuant to which Freightline agrees to source the provision of any services from that third party for the performance of part of the Services.
Subcontractors: those persons with whom Freightline enters into a Subcontract, and any person with whom that third party enters into a subcontract.
Supplier’s Personnel: all employees, staff, other workers, agents and consultants of Freightline who are engaged in the provision of the Services from time to time. Terms: these terms and conditions as amended from time to time in accordance with clause 23.2
VAT: value added tax or any equivalent tax chargeable in the UK or elsewhere.
Waste: has the meaning given in section 75 of the Environmental Protection Act 1990.
1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of these Terms.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 The Schedules form part of these Terms and shall have effect as if set out in full in the body of these Terms. Any reference to these Terms includes the Schedules.
1.5 A reference to a company includes any company, corporation or other body corporate, wherever and however incorporated or established.
1.6 Unless the context otherwise requires, words in the singular includes the plural and in the plural includes the singular.
1.7 Unless the context otherwise requires, a reference to one gender includes a reference to the other genders.
1.8 A reference to legislation or a legislative provision:
(a) is a reference to it as amended, extended or re-enacted from time to time; and
(b) includes all subordinate legislation made from time to time under that legislation or legislative provisions.
1.9 A reference to writing or written excludes faxes but not email.
1.10 References to clauses and Schedules are to the clauses and Schedules of these Terms and references to paragraphs are to paragraphs of the relevant Schedule.
1.11 Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
2. Commencement and duration
2.1 These Terms set out the rights and obligations of Freightline and the Customer when the parties enter into a Contract for provision of the Services.
2.2 The failure of the Customer to provide a Purchase Order shall not affect the validity of these Terms or the Contract and does not negate the Customer’s obligations, including the obligation to make payment in accordance with these Terms.
2.3 A Contract commences when the Customer signs the Order or sends a Delivery Instruction to Freightline (Commencement Date).
3. Services
3.1 Freightline shall provide the Services to the Customer in accordance with these Terms and in consideration of the payment of the Charges.
3.2 Freightline is not obliged to accept any Goods or perform any Services (even where a Contract has been concluded) where it, at its sole discretion, comes to believe that the Goods or Services may be unlawful, unsafe or otherwise undesirable and will not Deliver Goods that are the type listed in Schedule 1, as varied from time to time in accordance with these Terms.
3.3 Freightline is not and does not contract as a common carrier.
4. Freightline’s general obligations
4.1 Freightline shall at all times:
(a) use its reasonable endeavours to provide the Services in accordance with the specifications set out in the Order.
(b) provide the Services with reasonable care and skill and in accordance with Good Industry Practice;
(c) use all reasonable endeavours to comply with all reasonable written instructions which the Customer may give to Freightline concerning the Goods;
(d) provide such reasonable co-operation and information in relation to the Services to the Consignee and such of the Customer’s other suppliers as the Customer may reasonably require for the purposes of enabling any such person to create and maintain any interfaces that the Customer may reasonably require;
(e) ensure that no third party, except for Subcontractors shall be able to access the Goods while in the custody or under the control of Freightline;
(f) ensure the traceability of all Goods while in the custody or under the control of Freightline; (g) subject to clause 8.4, clause 11.4, and clause 15.4 do nothing to prejudice the Customer’s, or if the Customer is not the Owner, the Owner’s title or rights to the Goods; and
(h) obtain, maintain and comply with all Consents required for the performance of the Services.
4.2 Where Freightline facilitates or assists the Customer with any applications, submissions or similar matters which may be required for the successful performance of the Services, Freightline does not guarantee the result of such facilitation or assistance. The Customer acknowledges and agrees that the performance of the Services may be subject to changes in the Applicable Laws, trade customs, procedures and other unforeseen matters. 4.3 Notwithstanding the provisions of clause 4.1, any delivery times and dates specified in the Order shall be according to Freightline’s rate tariff and shall be estimates only. Freightline shall use reasonable endeavours to deliver Consignments within any estimated timescales provided by Freightline to the Customer, but time for delivery of the Consignment will not be of the essence of the Contract.
4.4 Should Freightline be required to provide Delivery beyond the Delivery Point, such Delivery shall be on the same terms as agreed in the Contract with the exception of the Charges and any necessary amendments to the requirements for Delivery which arise as a result of this change. 4.5 Should the Parties not be able to agree the terms of the extended Delivery, the provisions of clause 11.3, clause 11.4 and 11.5 shall apply.
5. Customer’s responsibilities
5.1 The Customer shall:
(a) co-operate with Freightline in all matters relating to the Services;
(b) co-operate with all relevant authorities on all matters relating to the Services;
(c) provide all documents and information reasonably requested by Freightline to enable it to provide the Services in accordance with these Terms within a reasonable time of any request for such information being received;
(d) ensure that a duly authorised representative provides all Delivery Instructions and other written instructions to Freightline and Freightline is entitled to assume that any Delivery Instructions or other written instructions have been provided by an authorised representative of the Customer and act on the instructions contained therein.
(e) provide details of any special precautions for storage, handling or carriage of the Goods, required by the nature, weight or condition of the Goods or by any Applicable Law;
(f) obtain, maintain and comply with all Consents required for the lawful fulfilment of underlying agreements or arrangements which have given rise to the need for the Services.
(g) use all reasonable endeavours to procure that the Consignee or its appointed agent accepts Delivery in accordance with the Delivery Instruction;
(h) notify Freightline immediately in writing of any change of control of the Customer; and
(i) ensure that the Consignment is:
(i) sufficiently packaged to limit the movement of the Goods and support and protect the Goods through the handling and transportation process and during Transit.
(ii) safe for transport and is safe to be handled by Freightline’s employees, independent contractors and representatives; and
(j) affix the Consignment label in accordance with the instructions provided by Freightline and ensure the Consignment’s label quality is sufficient for Freightline or its independent contractors’ scanning equipment. Freightline will not be liable for any damage to the packaging of the Consignment.
5.2 For the duration of any Contract and for six (6) months thereafter, the Customer shall not directly or indirectly appoint a Subcontractor to perform any services identical or similar to the Services. Failure to comply with this clause is a material breach of these Terms and the Client shall be liable for all Losses, including loss of profits, caused by such failure to comply.
6. Loading and unloading
6.1 Unless otherwise provided for in these Terms Freightline shall not be responsible for any loading and unloading of the Consignment.
6.2 Where Freightline has agreed to load and/or unload the Consignment:
(a) Freightline shall not be under any obligation to provide any additional labour, other than one individual driving the vehicle, for loading or unloading the Consignment;
(b) Should the Customer, Consignee or persons appointed by either of them require Freightline to provide additional labour for the loading and/or unloading the Consignment, the terms and costs of this additional labour must be agreed in writing between the parties.;
(c) if additional labour is required for loading or unloading of a Consignment, and the parties cannot agree the terms upon which additional labour will be provided, Freightline shall:
(i) have the right to refuse to load or unload the Consignment; or
(ii) where it agrees Freightline is instructed to load or unload any Consignment the Customer shall indemnify, keep indemnified, and hold Freightline, its Subcontractors and representatives harmless against all losses or damages (including but not limited to claims, demands, proceedings, fines, penalties, damages, expenses and loss of or damage to the carrying vehicle and to other goods carried) which arise as a direct or indirect result of such loading or unloading; or (iii) rely on the provisions of clause 11.3, clause 11.4 and 11.5 shall apply.
7. Customer warranties
7.1 The Customer warrants on an ongoing basis that:
(a) it is either the Owner or is authorised by the Owner to deal with the Goods on the terms of these Terms and the applicable Order;
(b) it has supplied to Freightline all material information relating to its requirements for the Services and such information is accurate in all respects;
(c) it shall provide full and accurate descriptions and particulars , weights and measurements of all deliveries of Goods;
(d) none of the Goods will constitute Waste or Dangerous Goods.
8. Storage
8.1 Where warehousing solutions form part of the Services, Freightline shall:
(a) insure the Goods;
(b) store the Goods at the Facilities in such a manner as to protect them from damage or deterioration;
(c) use it reasonable endeavours to keep and maintain the Goods in accordance with the Customer’s instructions as set out in the Order and as amended in writing from time to time. (d) subject to clause 8.4, clause 11.4, and clause 15.4, not dispose of or use the Goods other than in accordance with the Customer’s written instructions or authorisation or unless required by law, a court of competent jurisdiction or any governmental or regulatory authority;
(e) store the Goods separately from all other goods held by Freightline so that they remain readily identifiable as the Customer’s property; and
(f) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods. 8.2 Subject to clause 8.1, Freightline may use such method for the storage of the Goods as in its absolute discretion it considers appropriate. 8.3 Subject to clause 8.4, clause 11.4, and clause 15.4, the Goods shall remain subject to the direction of the Customer and Freightline shall, at the Customer’s cost, immediately return any Goods on demand by the Customer.
8.4 Freightline may, without liability and at the Customer’s expense, destroy or otherwise dispose of any Goods which in its reasonable opinion constitute Dangerous Goods. Save in cases of emergency, Freightline shall not exercise this right without first giving the Customer a reasonable opportunity to inspect the Goods in question and, if the Customer so elects, to remove them itself.
9. Facilities
9.1 The Customer and its employees, agents and representatives may, on prior reasonable notice in writing to Freightline, access any of the Facilities during Business Hours for the purpose of inspecting the Goods and removing any Goods not subject to Freightline’s lien in clause 15.4.
9.2 The Customer shall ensure that when visiting a Facility its employees, agents and representatives shall:
(a) co-operate as far as may be reasonably necessary with Freightline’s employees, Subcontractors and representatives;
(b) act in such a way as to avoid causing unreasonable or unnecessary disruption to the routine and procedures of Freightline, its employees, Subcontractors and representatives; and
(c) comply with all rules and instructions issued from time to time by Freightline, its employees, Subcontractors and representatives relating to the use and security of the Facility.
9.3 Freightline shall promptly, on request, provide information to the Customer regarding the security systems in place at each of the Facilities.
10. Delivery Instructions
10.1 The Customer shall issue a Delivery Instruction promptly on its acceptance of an Order. The Delivery Instruction shall contain:
(a) the name and address of the person authorised to make the Goods available for collection on its behalf;
(b) the place at which the Goods must be collected;
(c) the time at which the Goods must be collected;
(d) the name and address of the Consignee or the person authorised to accept Delivery on its behalf;
(e) the Delivery Point;
(f) the Delivery Time;
(g) particulars of the Goods to be collected and Delivered;
(h) any special requirements concerning the collection or Delivery of the Goods;
(i) any other information requested by Freightline to allow for the performance of the Services
10.2 Freightline shall acknowledge receipt of the Delivery Instruction as soon as reasonably practicable. It shall raise any concerns regarding the Delivery Instruction with the Customer at the same time.
10.3 Freightline shall effect Delivery of each Consignment in accordance with the applicable Delivery Instruction.
11. Delivery
11.1 The Goods will be at Freightline’s risk after loading and during transit. Once the Goods arrive at the Delivery Point, the risk passes to the Customer.
11.2 Freightline shall obtain a signed receipt for each Delivery from the relevant Consignee and forward a copy to the Customer immediately on request.
11.3 Receipt by the Consignee, or any appointed agent, entitled to take Delivery of a Consignment without complaint shall constitute prima facie evidence that the Consignment was delivered in good condition in accordance with these Terms.
11.4 If the Consignee, or any appointed agent, fails to take Delivery at the Delivery Point, then Freightline shall seek further instructions from the Customer and comply with those instructions where reasonable to do so. Except where that failure is caused by Freightline’s failure to comply with its obligations under these Terms, Freightline shall charge the Customer, at the rates set out in these Terms, for the cost of retaining, insuring and storing the Consignment pending receipt and fulfilment of the Customer’s instructions.
11.5 Where Freightline continues to be unable to deliver the Consignment as instructed and is unable to obtain instructions from the Customer in accordance with clause 11.4 within 5 days, Freightline shall be entitled, as agent of the Customer and at the cost of the Customer, to sell or otherwise dispose of the Goods forming the Consignment, or part of a Consignment, following not less than 7 days’ written notice to the Customer. Freightline shall not be liable for the price obtained for the sale or disposal of the Goods constituting the Consignment. Freightline shall remit the proceeds of sale or disposal of such Goods to the Customer after deduction of all amounts due to Freightline and the expenses incurred by Freightline for the storage, insurance and subsequent sale or disposal of the Goods.
11.6 Where the Goods constituting a Consignment are liable to perish or deteriorate, Freightline’s right to sell or otherwise dispose of the Goods in clause 11.5 shall arise immediately following the failure by the Consignee or any appointed agent to take Delivery in accordance with the Order subject only to Freightline taking all reasonable steps to notify the Customer of its intention to sell or otherwise dispose of the Goods before doing so.
12. Subcontracting
12.1 The Customer acknowledges and agrees that Freightline can and does make use of Subcontractors in performing the Services.
12.2 Freightline shall remain responsible for all acts and omissions of its Subcontractors and the acts and omissions of those employed or engaged by the Subcontractors as if they were its own. An obligation on Freightline to do, or to refrain from doing, any act or thing shall include an obligation on Freightline to procure that the Subcontractors shall also do, or refrain from doing, such act or thing.
12.3 Freightline shall enter into each Subcontract as principal rather than as agent of the Customer and the Customer shall not be liable to any of the Subcontractors for Freightline’s breach of any of the Subcontracts.
13. Compliance and change in laws
13.1 Freightline and the Customers and the Customer shall procure that the Consignee must at all times act in compliance with the Applicable Laws. Freightline shall maintain such records as are necessary pursuant to the Applicable Laws and shall promptly on request make them available for inspection by any relevant authority that is entitled to inspect them and by the Customer (or its authorised representative).
14. Charges
14.1 In consideration of the provision of the Services by Freightline, the Customer shall pay the Charges.
14.2 Notwithstanding that Freightline may from time to time agree to collect freight, duties, charges, dues or other expenses in respect of a Consignment from the Consignee, the Customer shall remain liable to Freightline for any such freight, duties, charges, dues or other expenses in the event of default by the Consignee and Freightline shall not be required to take steps to obtain payment from the Consignee other than one written request for payment.
14.3 All Charges are stated exclusive of VAT which shall be paid by the Customer at the rate and from time to time in the manner prescribed by law and contained in the Order.
15. Invoicing and payment
15.1 Freightline shall invoice the Customer and the Customer shall make payment of any amounts due to Freightline in accordance with the payment terms agreed in writing between the Customer and Freightline.
15.2 The Customer shall pay all amounts due to Freightline in full and in cleared funds, free from deduction and setoff to the bank account nominated in writing by Freightline.
15.3 If the Customer disputes any invoice:
(a) the Customer shall notify Freightline in writing within 5 Business Days of the date of receipt of the invoice, specifying the reasons for disputing the invoice;
(b) Freightline shall provide all evidence as may be reasonably necessary to verify the disputed invoice;
(c) the Customer shall pay to Freightline all amounts not disputed by the Customer on the due date as set out in clause 15.2;
(d) the parties shall negotiate in good faith to attempt to resolve the dispute promptly; and
(e) if the parties have not resolved the dispute within thirty (30) days (or any longer period as agreed between the parties in writing) of the Customer giving notice to Freightline, the dispute shall be resolved in accordance with the Dispute Resolution Procedure.
15.4 If the Customer fails to make any payment due to Freightline under these Terms by the due date for payment, then, without limiting Freightline’s remedies under law or as set out elsewhere in these Terms, Freightline reserves the right to :
(a) charge the Customer interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%. Where a payment is disputed in good faith, interest is only payable after the dispute is resolved, on sums found or agreed to be due, from the due date until payment; and
(b) suspend performance of part or all the Services until payment has been made in full.
15.5 Freightline shall have a general and particular lien on the Goods in its possession as security for payment of all sums claimed by Freightline from the Customer. The Charges shall continue to accrue on any Goods detained under lien. If an invoice for the Charges is not paid in full on its due date for payment, Freightline may, without prejudice to its other rights and remedies, give notice in writing to the Customer of its intention to sell or otherwise dispose of some or all of the Goods in its possession if the amount outstanding is not paid in full within fourteen (14) days of the notice. If the amount due is not paid by the expiry of such period, Freightline may sell or otherwise dispose of some or all of the Goods in its possession, as agent of the Customer and at the Customer’s expense and risk, and shall remit the proceeds of sale or disposal of such Goods to the Customer after deduction of all amounts due to Freightline and the expenses incurred by Freightline for the sale or disposal of the Goods. Freightline shall not be liable for the price obtained for the sale or disposal of the Goods.
15.6 Where the Goods are liable to perish or deteriorate, Freightline’s right to sell or otherwise dispose of such Goods under clause 15.5 shall arise immediately on any sum becoming due subject only to Freightline taking all reasonable steps to notify the Customer of its intention to sell or otherwise dispose of the Goods before doing so.
16. Customer’s Intellectual Property
16.1 Freightline acknowledges that the Customer’s rights to the Intellectual Property used on or in relation to the Goods are the Customer’s property.
16.2 Freightline accepts that:
(a) it is permitted to use the Customer’s Intellectual Property only for the Term and for the purposes of these Terms and only as authorised by the Customer under these Terms; (b) other than to the extent set out in clause 16.2(a), it has and shall have no right to use or to allow others to use the Customer’s Intellectual Property or any part of it;
(c) it shall not use any trade marks, trade names or get-up which resemble the Customer’s trade marks, trade names or get-up and which would therefore be likely to confuse or mislead the public or any section of the public;
(d) it shall not remove, alter or otherwise tamper with any trade marks, trade names, logos, numbers or other means of identification on the Goods or the packaging for the Goods which come into Freightline’s possession, custody or control, and shall not place any trade mark or trade name of its own on the Goods or any packaging or other materials used in connection with the Goods; and
(e) it shall not do or omit to do, or authorise any third party to do or omit to do, anything which could invalidate or be inconsistent with the rights that the Customer has in the Customer’s Intellectual Property.
17. Confidentiality
17.1 In these Terms, “Confidential Information” means any and all information in whatever form, whenever disclosed (including prior to the formation of Contract) and whether disclosed in writing, orally, visually, electronically, or in any other media format, including future product plans, the form, materials and design of any relevant goods, plant and/or equipment or any part thereof, methods of operation and applications, processes, formulae, recipes, plans, strategies, data, know-how, designs, trade secrets, patent applications, software, market opportunities, photographs, drawings, specifications, technical literature and any other material gained or made available by either party (or any of its representatives or advisors) to the other (or any of its representatives).
17.2 Each party undertakes that it shall not at any disclose to any person Confidential Information of the other party and of any member of the group of companies to which the other party belongs, except as permitted by clause 17.3.
17.3 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this Agreement. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 17; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
17.4 No party may use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement.
18. Limitation of liability
18.1 The following definitions apply in this clause 18:
(a) liability: every kind of liability arising under or in connection with these Terms including liability in contract, tort (including negligence) or otherwise; and
(b) default: any act or omission resulting in one party incurring liability to the other.
18.2 Nothing in these Terms limits or excludes:
(a) liability for death or personal injury caused by negligence to the extent preserved by section 2(1) of the Unfair Contract Terms Act 1977;
(b) liability for fraud or fraudulent misrepresentation;
(c) any liability that cannot legally be limited; and
(d) either party’s payment obligations under these Terms. 18.3 Subject to clause 18.2, Freightline shall not be liable for loss or damage caused by:
(a) Its failure to perform the Services due to a change in an Applicable Law, including unforeseen changes to permitted road usages or any road diversions;
(b) inherent liability due to wastage in bulk or weight, latent or inherent defect, vice or natural deterioration of the Goods; or
(c) any special handling or storage requirements in respect of the Goods not notified in writing to Freightline by the Customer. 18.4 Subject to clause 18.2, Freightline’s total liability to the Customer:
(a) for damage to any Customer property, shall not exceed £1 000 000 for any one default or series of connected defaults;
(b) for all other loss or damage to Goods shall not exceed £1 000 000. 18.5 If the same loss falls within both clause 18.4(a) and clause 18.4(b), the lower applicable limit shall apply and the Customer shall not be entitled to claim more than once in respect of the same loss.
18.6 For the purposes of clause 18.4(b) the value of the Goods shall be their value at the date of their delivery to the Facility.
18.7 By agreement in writing, Freightline may accept liability in excess of the limits set out in clause 18.4(b) in respect of particular Goods or a particular Consignment in return for the Customer paying such additional Charges as shall be agreed by the parties. 18.8 Subject to clause 18.2 and 5.2, neither party shall have any liability for:
(a) loss of profits (including loss of anticipated savings); or
(b) loss of sales or business; or
(c) loss of agreements or contracts; or
(d) loss of use or corruption of software, data or information; or
(e) loss of or damage to goodwill; or
(f) indirect or consequential loss. 18.9 Freightline has given commitments as to compliance of the Services with relevant specifications in clause 4.1(a). In view of these commitments, the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from these Terms.
19. Customer’s indemnities
19.1 In this clause 19, Losses means all liabilities, damages, losses (including loss of profits, loss of business, loss of reputation, loss of savings and loss of opportunity), fines, expenses and costs (including all interest, penalties, legal costs (calculated on a full indemnity basis) and reasonable professional costs and expenses.
19.2 The Customer shall indemnify Freightline against all Losses incurred by Freightline as a result of any claim made against Freightline:
(a) in respect of damage to property, death or personal injury arising out of or in connection with the storage, handling or carriage of any Goods which are Waste or Dangerous Goods;
(b) for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with the storage, handling or carriage of any of the Goods;
(c) arising out of the Customer’s failure to comply with any statutory or HMRC requirements, including administrative requirements, concerning the payment of tax, customs or duties in respect of any of the Goods; and
(d) for conversion arising out of or in connection with the storage, handling or carriage of any of the Goods in accordance with the Customer’s instructions. 19.3 The Customer will not be liable under the indemnity in clause 19.2 to the extent that any Losses result from Freightline’s breach of these Terms, negligence or wilful misconduct.
19.4 If any third party brings a claim against Freightline, or notifies Freightline of its intention to do so, and that claim may reasonably be considered likely to give rise to a liability under the indemnity in clause 19.2 (Claim), Freightline shall:
(a) as soon as reasonably practicable, give written notice of the Claim to the Customer, specifying the nature of the Claim in reasonable detail; (b) subject to clause 19.5, allow the Customer, at the Customer’s cost, to conduct all negotiations and proceedings in relation to the Claim and to settle or compromise the Claim, provided that the Customer must not settle or compromise the Claim without the prior written consent of Freightline (that consent not to be unreasonably conditioned, withheld or delayed); (c) not, subject to clause 19.5 and the Customer’s full compliance with clause 19.6, make any admission of liability, settlement or compromise in relation to the Claim without the prior written consent of the Customer (that consent not to be unreasonably conditioned, withheld or delayed), provided that Freightline may settle the Claim (after giving prior written notice of the terms of settlement (to the extent legally possible) to the Customer, but without obtaining the Customer’s consent), if Freightline reasonably believes that failure to settle the Claim would be prejudicial to it in any material respect; and
(d) provide the Customer with reasonable information, assistance and co-operation in responding to and defending the Claim, subject to the Customer’s full compliance with clause 19.6(c). This duty includes Freightline giving the Customer and the Customer’s professional advisers access at reasonable times (on reasonable prior notice) to:
(i) its premises and those of its officers, directors, employees, agents, representatives or advisers involved in the Claim; and
(ii) any relevant accounts, documents and records within the power or control of Freightline,
so that the Customer’s professional advisers can examine them and take copies (at the Customer’s expense) for the purpose of assessing the Claim.
19.5 If the Customer does not assume control over the defence of a Claim within 30 days of the notice under clause 19.4(a) Freightline may defend the Claim in any way it deems appropriate at the Customer’s expense.
19.6 If the Customer assumes control over the defence of any Claim, the Customer shall:
(a) defend the Claim diligently, using competent counsel and in such a way as not to bring the reputation of Freightline into disrepute;
(b) have regard to the interests and reputation of Freightline in its conduct of the Claim; (c) reimburse Freightline for any costs incurred under clause 19.4(d);
(d) ensure that Freightline is granted access to all relevant documents connected with the Claim and keep Freightline informed, at regular intervals, regarding negotiations, litigation and other material matters concerning the Claim; and
(e) allow Freightline to join in the defence of the Claim with counsel of its choice at its own expense. 19.7 The Customer’s liability under clause 19.2 are limited to £1 000 000 and will be reduced to the extent that any Losses are caused by the failure of Freightline to comply with the indemnification procedures in clause 19.4. 19.8 If a payment due from the Customer under this clause 19 is subject to tax (whether by way of direct assessment or withholding at its source), the amount of the payment shall be increased to ensure that the net receipt, after tax, to Freightline is the same as it would have been were the payment not subject to tax.
20. Data protection
20.1 The following definitions apply in this clause 20:
(a) Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
(b) Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018 (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and the guidance and codes of practice issued by the Information Commissioner or other relevant regulatory authority and applicable to a party.
(c) Domestic Law: the law of the United Kingdom or a part of the United Kingdom.
(d) UK GDPR: has the meaning given in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
20.2 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 20 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
20.3 Without prejudice to the generality of clause 20.2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Freightline and/or lawful collection of the Personal Data by Freightline on behalf of the Customer for the duration and purposes of these Terms. 20.4 Without prejudice to the generality of clause 20.2, Freightline shall, in relation to any Personal Data processed in connection with the performance by Freightline of its obligations under these Terms:
(a) process that Personal Data only on the documented written instructions of the Customer unless Freightline is required by Domestic Law to otherwise process that Personal Data. Where Freightline is relying on Domestic Law as the basis for processing Personal Data, Freightline shall promptly notify the Customer of this before performing the processing required by the Domestic Law unless the Domestic Law prohibits Freightline from so notifying the Customer;
(b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
(d) not transfer any Personal Data outside of the UK unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
(i) the Customer or Freightline has provided appropriate safeguards in relation to the transfer;
(ii) the Data Subject has enforceable rights and effective legal remedies;
(iii) Freightline complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(iv) Freightline complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
(e) assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify the Customer without undue delay on becoming aware of a Personal Data Breach;
(g) at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on the Termination Date unless required by Domestic Law to store the Personal Data; and
(h) maintain complete and accurate records and information to demonstrate its compliance with this clause 20.
20.5 Freightline confirms that it may enter with a third-party processor into a written agreement. As between the Customer and Freightline, Freightline shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 20.5.
20.6 The parties indemnify and hold each other harmless for any Losses one party incurs arising out of the breach of this clause 20. The Losses so incurred shall be limited to £1 000 000.
21. Dispute resolution procedure
21.1 If a dispute arises out of or in connection with a Contract or its performance, validity or enforceability (Dispute), then the parties shall follow the procedure set out in this clause:
(a) either party shall notify the other of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, the Representatives of the Client and of the Supplier set out in the Statement of Work shall attempt in good faith to resolve the Dispute;
(b) if these representatives are for any reason unable to resolve the Dispute within 30 days of service of the Dispute Notice, the Dispute shall be referred to the Chief Executive Officers (or equivalent) of the parties who shall attempt in good faith to resolve it; and
(c) if the parties’ Chief Executive Officers are for any reason unable to resolve the Dispute within 30 days of it being referred to them, the parties agree to enter into mediation in good faith to settle the Dispute and will do so in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties within 14 days of service of the Dispute Notice, the mediator shall be nominated by CEDR.
(d) To initiate the mediation, a party must serve notice in writing (ADR notice) to the other party to the Dispute, referring the Dispute to mediation. A copy of the ADR notice should be sent to CEDR; and
(e) unless otherwise agreed between the parties, the mediation will start not later than 30 days after the date of the ADR notice.
21.2 If for any reason the Dispute is not resolved within 90 days of commencement of the mediation, the Dispute shall be referred to and finally resolved by the courts of England and Wales in accordance with clause 23.13.
22. Force majeure
22.1 Force Majeure Event means any circumstance not within a party’s reasonable control including:
(a) acts of God, flood, drought, earthquake or other natural disaster;
(b) epidemic or pandemic;
(c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
(d) nuclear, chemical or biological contamination or sonic boom;
(e) any law or action taken by a government or public authority, including imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;
(f) collapse of buildings, fire, explosion or accident; and
(g) any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this clause, or companies in the same Group as that party); and
(h) non-performance by suppliers or Subcontractors (other than by companies in the same Group as the party seeking to rely on this clause); and
(i) interruption or failure of utility service.
22.2 A party (Affected party) shall not be liable for any failure or delay in performing any of its obligations under these Terms for so long as, and to the extent that, its performance is prevented, hindered or delayed by a Force Majeure Event. 22.3 For so long as the Affected party’s liability in relation to any of its obligations is suspended under clause 22.2, the other party shall not be liable for any failure or delay in performing its corresponding obligations.
22.4 If Freightline is relieved from providing the Services under this clause, it shall co-operate with any efforts that the Customer may make to obtain alternative supplies of those Services. 22.5 If the Affected party has not resumed full performance of any obligations suspended under clause 22.2 within 60 days after giving notice of the start of the Force Majeure Event, the other party may terminate these Terms by giving not less than 14 days’ written notice to the Affected party.
23. General
23.1 Entire agreement
(a) These Terms constitutes the entire agreement between the parties.
(b) Each party acknowledges that in entering into these Terms it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms. Each party agrees that it shall has no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Terms.
23.2 Variation
(a) The Customer acknowledges and agrees that Freightline may amend these Terms from time to time and that the most recent version of these Terms will be available on the Freightline website.
(b) No variation of these Terms by the Customer shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
23.3 Waiver
(a) A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
(b) A delay or failure to exercise, or the single or partial exercise of, any right or remedy does not waive that or any other right or remedy, nor does it prevent or restrict the further exercise of that or any other right or remedy.
23.4 Severance
(a) If any provision or part-provision of these Terms is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of these Terms. (b) If any provision or part-provision of these Terms is deemed deleted under clause 23.4(a) the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
23.5 Notices
(a) Any notice given to a party under or in connection with these Terms shall be in writing and shall be:
(i) delivered by hand or by pre-paid first-class post or other next working day delivery service at the address specified in the Order; or
(ii) sent by email to the addresses specified in the Order:
(b) Any notice shall be deemed to have been received:
(i) if delivered by hand, at the time the notice is left at the proper address;
(ii) 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
(iii) if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
(c) This clause 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.
23.6 Third party rights
(a) Unless it expressly states otherwise, this agreement does not give rise to any rights under the Contracts (Rights of Third parties) Act 1999 to enforce any term of these Terms.
(b) The rights of the parties to rescind or vary these Terms are not subject to the consent of any other person.
23.7 No partnership or agency
(a) Nothing in these Terms is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other party, or authorise either party to make or enter into any commitments for or on behalf of the other.
(b) Each party confirms it is acting on its own behalf and not for the benefit of any other person.
(c) These Terms may be executed in any number of counterparts, each of which constitutes a duplicate original, but all the counterparts together constitute the one agreement.
(d) Transmission of an executed counterpart of these Terms (but for the avoidance of doubt not just a signature page) by email (in PDF, JPEG or other agreed format) shall take effect as the transmission of an executed “wet-ink” counterpart of these Terms.
23.8 Announcements
No party shall make, or permit any person to make, any public announcement concerning the existence, subject matter or terms of these Terms, the wider transactions contemplated by it, or the relationship between the parties, without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including any relevant securities exchange), any court or other authority of competent jurisdiction.
23.9 Conflict
If there is an inconsistency between any of the provisions in the main body of these Terms and the Schedules, the provisions in the main body of these Terms shall prevail.
23.10 Rights and remedies
The rights and remedies provided under these Terms are in addition to, and not exclusive of, any rights or remedies provided by law.
23.11 Further assurance
Each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to these Terms.
23.12 Governing law
These Terms 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.
23.13 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 these Terms or its subject matter or formation.
SCHEDULE 1: PROHIBITED GOODS
• Animals and livestock / carcass
• Explosives
• Bullion
• Money
• Firearms
• Ammunition
• Fireworks
• Human remains or ashes
• Any item which is illegal under UK law