1 DEFINITIONS AND INTERPRETATION
1.1 Subject to clause 1.2 in these Conditions the following expressions shall have the following meanings:
“Agreement” means agreement between Glasswells and the client
“Commencement Date” means the Scheduled Start Date identified in the Agreement
“Contract” means this contract comprising these Conditions, the Agreement, the Agreement Schedule and any other document incorporated into the Contract.
“Customer” means the person or company contracting with Glasswells in an Agreement for the purchase of Services
“Fees” means the amounts payable by the Customer for provision of the Services as set out in the Agreement
“Goods” means the goods specified in the Agreement and where the context allows any part of them
“Services” means the services specified in the Agreement
“Working Day” means 09:00 to 17:00, Monday to Friday excluding Public Holidays
1.2 All words and expressions defined in the Agreement shall have the same meaning in these Conditions unless the context otherwise requires.
1.3 If there is any conflict between these Conditions and the Agreement then the provisions of the Agreement shall prevail.
2 APPLICATION OF TERMS
2.1 These Conditions apply to the Agreement made between Glasswells and the Client in connection with the provision of the Services to the exclusion of any other terms that the client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 No additions or modification to these Conditions shall be binding upon Glasswells unless agreed to by Glasswells in a document expressly referring to a modification, alteration, variation or addition of or to the relevant Condition or Conditions.
3 GLASSWELLS RIGHTS AND OBLIGATIONS
3.1 It shall provide the Services during the continuance of the Agreement subject to the compliance by each Customer with all the terms and obligations set out in these Conditions.3.2 Glasswells shall:
3.2.1 provide Services with best care, skill and diligence in accordance with best practice in the warehousing industry in the United Kingdom;
3.2.2 co-operate and comply with all reasonable instructions given by the Customer;
3.2.3 use personnel who are suitably skilled and experienced to perform tasks assigned to them and in sufficient number to ensure that the Supplier’s obligations are fulfilled in accordance with the Contract;
3.2.4 ensure that the Services conform with all descriptions and specifications set out in the Contract;
3.2.5 provide all equipment, tools and vehicles and such other items as are required to provide the Services;
3.2.6 obtain and at all times maintain all necessary licences and consents and comply with all applicable laws and regulations;
3.2.7 not do or omit to do anything which may cause the Customer to lose any licence, authority, consent or permission on which it relies for the purposes of conducting its business and the Supplier acknowledges that the Customer may reply on or act on the Services;
3.2.8 have the right to open any packaging to inspect the Goods; and
3.2.9 where reasonably necessary and at the Supplier’s discretion, carry, store or handle the Goods with other compatible goods or transfer the Goods between stores.
3.3 Where the Services require Glasswells to deal with bulk Goods, Glasswells or its sub-contractors may at its discretion deal with and/ or mix apparently similar goods consigned by or for the Customer without distinguishing between consignments.
3.4 Where the Services being provided so require, the Customer confirms that the Customer is either the owner of the Goods or is authorised by the owner to accept these Conditions on the owner’s behalf.
3.5 Any advice or recommendation given by Glasswells its employees, agents or sub-contractors which is not confirmed in writing, is followed or acted on entirely at the Customer’s own risk, and accordingly Glasswells shall not be liable for any such advice, representation or recommendation which is not so confirmed.
3.6 Glasswells shall be responsible for complying with any legislation or regulation in the United Kingdom governing storage and/or delivery of the Goods and payment of any duties and/or taxes.
3.7 Unless the Customer notifies Glasswells in writing of any characteristics of the Goods (for example fragile items) or other matters (including any statutory or other specific duties in relation to the Goods) of which Glasswells needs to be aware when planning and effecting the loading/ unloading, delivery and storage of the Goods it is understood and agreed by the parties that Glasswells will have no special knowledge of the Customer’s Goods and/or requirements.
3.8 It is understood that in the absence of prior written instructions from the Customer giving sufficient detail, no special precautions and any special treatment need be taken or provided for the Goods. Wherever the Customer provides Glasswells with such instructions the Customer agrees to pay any extra reasonable charges that are levied.
4.1 Glasswells shall invoice monthly for its services, payment is due 30 days later.
4.2 Payment in full including any VAT (without any deduction by way of set off, counterclaim or withholding) relating to the Services shall be due and payable in Sterling on the dates specified in the Agreement (and in any event before removal of the Goods from the Supplier’s premises) together with any other sum payable under the Agreement.
4.3 Payment for carriage shall be made at the same time as the Goods are loaded on to the vehicle.
4.4 If the customer fails to make any payment on the due date, without limiting any other right or remedy available to Glasswells, it may:
4.4.1 cancel the Contract;
4.4.2 appropriate any payment made by the customer to such Services as it may think fit (notwithstanding any purported appropriation by the party in default); and
4.4.3 charge interest at 4% above National Westminster Bank Plc base rate for the time being or to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998 on any overdue payments until repaid in full whichever is most beneficial to the other party at that time.
4.5 Cheques, direct debits and credit card payments returned unpaid by the customer in default’s bank may incur an administration charge in the sum of £30 (exclusive of VAT). All cheques sent in settlement are sent at the risk of the party sending the same.
4.6 The customer shall indemnify Glasswells against all direct expenses reasonably incurred in the collection of any overdue sums.
4.7 Fees paid in advance are not refundable if the Customer terminates the Contract before the Scheduled Completion Date. Glasswells may alter the amount of Fees or any other charges at any time in writing and the alteration shall take effect from the date specified in the notification.
4.8 Without prejudice to any other rights of Glasswells, if there is reason to doubt that the amounts due from the Customer under the terms of the Contract will be paid in full according to the terms thereof, then Glasswells reserves the right to require payment in full before delivering or performing any Services whatsoever for the Customer and/or terminate the Contract.
4.9 Where payment requested in accordance with this Clause 4 is not received within 7 Working Days of demand, Glasswells reserves the right to sell or dispose of the Goods in accordance with Clause 5 and to recover any additional loss from the party in default. The party in default shall indemnify the other party against all costs, claims, demands and expenses incurred by the other party in connection with such action by the other party.
5.1 Glasswells shall have a general and particular lien on the Goods (and any associated documentation or records) as security for payment of all sums (whether due or not). Storage shall be charged for any Goods detained under lien.
5.2 Glasswells may request the removal of the Goods if the Contract is terminated, expires or the Customer is in breach of any warranty or undertaking in these Conditions or fails to pay the full amount when due. Subject to any term to the contrary contained in the Contract, Glasswells may require the removal of the Goods from its premises within 28 Working Days of the date of written notice..
5.3 Where Goods are not removed in accordance with clause 5.2 above, Glasswells may notify the Customer in writing that the Goods may be sold or otherwise disposed of at the Customer’s entire risk and expense if such payment is not made and/or such Goods are not removed within 21 Working Days or in the case of perishable Goods within 3 Working Days, from the date of such notice. On expiry of the period, if such payment has not been made and/or the Goods have not been removed, Glasswells may, sell the Goods to a third party or otherwise dispose of the Goods at the Customer’s entire risk and expense by an appropriate method. Any proceeds of sale or disposal shall be remitted to the Customer after deduction of all expenses and all amounts claimed by Glasswells.
5.4 The Customer indemnifies and shall keep Glasswells indemnified from and against any liability, losses, costs, claims, demands and expenses.
6 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
7 CUSTOMER’S OBLIGATIONS
7.1 The Customer warrants to Glasswells that nothing restricts the Customer from entering into the Contract, that no uncured event of default as provided by clause 11.1 is outstanding. The Customer also warrants that it has full constitutional power and authority to execute the Contract so that it fully binds the Customer.
7.2 The Customer warrants that:
7.2.1 the Goods comply with all legal requirements and regulations relating to the goods including by not limited to those concerning the manufacture, packaging, packing, labelling, description and or delivery of the Goods;
7.2.2 the Goods are securely and appropriately packed labelled and marked in compliance with any applicable safety or other statutory regulations, recognised standards and best practice;
7.2.3 the Goods will not cause damage to or/and endanger the safety and integrity of any person, third party property, contents and occupants;
7.2.4 the Customer has paid for or will pay for and keep up to date any necessary licences and pay any applicable duties in respect of the Goods;
7.2.5 unless agreed otherwise the Customer shall be responsible for all costs of transporting the Goods including loading/ unloading, carriage, packing and insurance;
7.2.6 Unless, prior to acceptance of the Goods by the Supplier, the Supplier receives written notice containing all appropriate information, none of the Goods constitute “Waste” as defined in the Environmental Protection Act 1990.
7.3 The Customer is responsible for any duties and taxes incurred as a result of handling and storing goods.
7.4 The Customer shall indemnify Glasswells in respect of all liabilities costs, claims, expenses and charges incurred by itself in complying with any statutory or other specific duties in relation to the Goods that the Customer is required to comply with.
8 LIMITATION OF LIABILITY
8.1 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
8.2 The following provisions set out Glasswells entire liability to she Customer in respect of:
8.2.1 any breach of the Contract;
8.2.2 any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract;
8.2.3 all warranties, conditions and other terms implied by statute or common aw are, to the fullest extent permitted by law, excluded from the Contract.
8.3 Nothing in this Contract excludes or limits Glasswells liability for death or personal injury caused by it’s negligence or for fraudulent misrepresentation.
8.4 Subject to clause 8.3 Glasswells exclude all liability for (without limitation):
8.4.1 wasted expenditure;
8.4.2 any indirect, consequential, special or punitive loss (including theft), destruction, damage, unavailability, contamination, deterioration, delay, non-delivery, mis-delivery, unauthorised delivery, non- compliance with instructions or obligations, or incorrect advice or information, costs and expenses;
8.4.3 loss of profit;
8.4.4 loss of expected savings;
8.4.5 loss of business;
8.4.6 loss of reputation;
8.4.7 depletion of goodwill.
8.5 Any liability of Glasswells (including any liability in respect of duties and taxes) under or in connection with the Contract shall not exceed the agreed amount per tonne weight taking into account the nature and maximum value(s) of the Goods (including duty and taxes) by the parties (the “Agreed Amount”).
8.5.1 Unless and until a higher Agreed Amount has been fixed under clause 8.5 and continues in effect, the Agreed Amount shall be £100 sterling per tonne;
8.5.2 Glasswells shall each use their respective reasonable endeavours to obtain insurance on reasonable terms to cover their respective liability up to the Agreed Amount. The Customer agrees to indemnify Glasswells costs in obtaining such insurance and/or extra charge equivalent to the estimated or likely cost of such insurance within 7 Working Days.
8.5.3 Glasswells shall give the Customer 7 Working Days’ written notice if it is unable to obtain insurance or if the Customer have not yet paid any invoices issued under Clause 8.5.2 above and the Agreed Amount shall be £100 per tonne.
8.6 In no event shall Glasswells incur liability unless:
8.6.1 a written notice of the event giving rise to a claim is made within 10 Working Days of the event giving rise to the claim coming to the Customer’s knowledge; and
8.6.2 Glasswells is provided with sufficient details of the loss or damage within 21 Working Days of the event giving rise to the claim coming to the knowledge of the Customer. In respect of complete non arrival of the Goods, time shall run from the first Working Day after the expected day of delivery.
8.7 Glasswells shall have no liability in respect of a breach of this Contract unless legal proceedings (including any counterclaim) have been issued and served on itself (as the case may be) within 9 months of the event giving rise to the claim.
8.8 Glasswells shall not be liable to the Customer or any person claiming under or through the Customer for loss or destruction of the Goods or any damage to or deterioration of the Goods where it is caused or contributed to by a breach of any of the Customer’s obligations in Clause 7, of by any circumstances in Clause 13.
8.9 The provisions of this clause 8 shall continue to apply after the termination or expiry of the Contract.
9.1 Except as provided in Clause 8.5 Glasswells will not insure the Goods and the Customer shall insure (or self- insure) the Goods to their full commercial or market value against all customary perils including any duties and taxes loss by theft or otherwise destruction damage and deterioration and shall maintain such insurance in full force and effect throughout the period when the Goods are (or would but for the occurrence of one or more of the insured risks be) in Glasswells care custody or control with any right for the insurer to bring a subrogated claim against Glasswells. Upon request, the Customer must show satisfactory evidence that the insurance required under this Contract is in place in respect of the relevant Goods.
10.1 The Customer shall fully indemnify Glasswells against all losses, damages, costs, actions, claims, demands, fines, penalties, fees and other expenses (legal or otherwise) which may occur as a result of carrying out the Customer’s instructions, arising out of the custody or carriage of the Goods in pursuance of or in connection with this Contract by any person or which are wholly or partly related to any breach of, or with any default under, any provision of the Contract by the Customer.
10.2 If any claim is made by a third party against Glasswells in respect of loss of or damage to the Goods or in respect of any conversion of or interference with the Goods the Customer shall indemnify Glasswells.
11.1 The following events will constitute events of default and a repudiation of the Contract:
11.1.1 Glasswells does not receive any rental from the Customer within 21 Working Days of the due date; or
11.1.2 The customer has breached any other term (and, if it can be remedied the customer fails to remedy the breach within 28 days of the breach occurring); or
11.1.3 The customer ceases to carry on business; or
11.1.4 any circumstances arise which in Glasswells opinion have or may have an adverse effect on the customer’s ability to perform it’s obligations under the Contract; or
11.1.5 an order is made or a resolution is passed for the winding-up of the customer or an order is made for the appointment of an administrator to manage the affairs, business and property of the customer or such an administrator is appointed or documents are filed with the court for the appointment of an administrator or notice of intention to appoint an administrator is given by the customer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a receiver and/or manager or administrative receiver is appointed in respect of all or any of the customer’s assets or undertaking or circumstances arise which entitle the Court or a creditor to appoint a receiver and/or manager or administrative receiver or which entitle the Court to make a winding-up or bankruptcy order or the customer takes or suffers any similar or analogous action in consequence of debt; or
11.1.6 any fact stated by the Customer is materially inaccurate or misleading or incomplete.
If any of the above events occurs, Glasswells may then terminate the Contract.
12 FORCE MAJEURE
12.1 Glasswells shall not have any liability for any expenses, losses or damages caused by delay or default in performance of any obligation caused directly or indirectly by, or their non performance results wholly or partly from, the act or omission of the Customer, the Customer’s agent, (including any breach by the Customer of these Conditions), breakdown or unavailability of premises, equipment or labour, any other cause or causes beyond it’s reasonable control including, but not limited to, Acts of God, fire, lightning, explosion, flood, extreme weather conditions, outbreak of hostilities (whether declared or not), riot, civil disorder or commotion, acts of terrorism, industrial disputes or acts of default of any local or central Government or other competent authority.
13 CHANGE OF TERMS AND CONDITIONS
13.1 Glasswells may modify the Contract by notifying the Customer in writing and giving 21 Working Days’ notice where possible. This would include where changes to the law and/or rules applied to the provision of the Services, require the Supplier to modify its procedures, policies or services.
14.1 Any notice or other communication required to be given to a party under or in connection with the Contract shall be in writing and shall be delivered to the other parties personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other parties’ main fax numbers.
14.2 Any notice or communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by prepaid first-class post or recorded delivery, at 9.00 am on the second Working Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, or if sent by fax, on the next Working Day after transmission.
15.1 Each right or remedy of any party under the Contract is without prejudice to any other right or remedy of Glasswells whether under the Contract or not.
15.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
15.3 Failure or delay by any party in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.
15.4 Any waiver by any party of any breach of, or any default under, any provision of the Contract by the Customer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
15.5 The parties do not intend that any term of the Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person other than Glasswells and the customer.
15.6 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.