1.1 In this Agreement (as defined below), the following terms shall have the following meanings:
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“Company” |
means PostalSort Limited (Company number is NI 062506) whose registered office is at 13–15 Sydenham Road, Belfast, BT3 9DH. |
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“ Postal Charges “ |
means in respect of a particular Job, the cost to the Company of engaging any and all carriers who are engaged by it in relation to that particular Job including (but not limited to) any Royal Mail or An Post charges . |
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“Customer” |
means you the business, firm, company or individual to whom the Services are to be supplied; |
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“Fees” |
means in relation to a Job, the fees payable by the Customer to the Company, as determined by reference to clause 5 below and the relevant Quotation; |
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“Job” |
means a particular requirement for Services; |
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“Quotation” |
means a formal quotation issued by the Company for provision of services identifying a Job and the relevant Fees payable by the Customer in relation to that Job including any written specification applicable to the relevant services; and |
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“Services” |
postal logistics services, involving the procurement and management of postal services in relation to either a single mailing or (as the case may be) a number of mailings over a particular period. |
“Dangerous Goods” |
means those items defined as dangerous or hazardous by the regulatory bodies and by legislation, regulations and guidelines governing transport by road, rail sea or air. |
“Consignment” |
Means the goods that are the subject matter of this Agreement and each and every separate part of them and each and every parcel, container, pallet, crate, package or preloaded vehicle or trailer in which they are contained |
2.1 These Terms and any Quotation (together “ the Agreement“) shall apply to the provision of the Services more particularly specified in the Quotation or agreed by the parties.
2.2 Acceptance of the Quotation indicates acceptance of these Terms and of any other express conditions contained in the Quotation.
2.3 In the event of any inconsistency between these Terms and any Quotation terms contained in these Terms shall prevail.
2.4 This Agreement shall prevail over any terms and conditions in the Customer’s order or acceptance. No conduct by the Company shall be deemed to constitute acceptance of any terms put forward by the Customer.
2.5 These Terms and the Agreement may only be amended by express agreement in writing signed by an authorised representative of each of the parties.
3.1 The Company may provide an initial estimate in relation to a particular Job subject to the Customer providing initial information.
Estimates shall not be binding on the Company.
3.2 Where the Company provides the Customer with a Quotation in respect of a particular Job, the provision of that Quotation will constitute an offer by the Company to provide to the Customer the specified Services in return for payment of the specified Fees and will remain open for acceptance by the Customer for a period of 30 days or such other period as the Company may stipulate at the time. The Company shall be entitled to withdraw any Quotation at any time before the Customer accepts the Quotation in accordance with clause 3.3 below.
3.3 If the Customer wishes to accept the Company’s offer in respect of a particular Job as set out in the Quotation, it shall do so by confirming this in writing (including by email or fax) within the relevant timescale for acceptance and on receipt of that confirmation by the Company a binding agreement shall exist for the provision of the relevant Services by the Company to the Customer. No conduct by the Company shall be deemed to constitute acceptance by it of any terms put forward by the Customer at the time of confirming its willingness to proceed with a particular Job except and to the extent that such terms are expressly agreed by the Company in writing as variations to the relevant Quotation.
3.4 The Customer shall provide in a timely manner and in accordance with clause 6 below such co–operation and accurate information including but not limited to any relevant data or instructions as the Company may reasonably request from time to time in order for the Company to provide Services in relation to a particular Quotation including (but not limited to) any information used by the Company to cost a particular Job.
3.5 The Customer shall ensure that all items to be mailed as part of the Services are made available at such times and in such form (including as to their packaging and addressee or other mailing information) as the Company or the relevant carriers engaged by the Company may specify. If the Customer fails to prepare such items in such form as aforementioned the Customer will be charged additional Fees for any service that has been undertaken by the Company to prepare the items to the specification of the relevant carrier.
3.6 In so far as the Company is unable to provide certain Services required in relation to a Quotation as a result of any failure by the Customer to comply with its obligations under clauses 3.4 or 3.5 above:–
3.6.1 The Company shall not be liable to the Customer in respect of such failure on the Company’s part; and
3.6.2 The Company shall still be entitled to invoice the Customer under clause 5 for all Fees applicable to such Services as if they had been provided by the Company in accordance with this Agreement, subject to the Company making a reasonable deduction from such Fees in respect of any Postal Charges and processing fees which the Company was able to avoid incurring in relation to the relevant Quotation.
3.7 Quotations are issued by the Company on the basis that the whole work quoted for will be ordered. The price is based on information available to the Company at the date of the Quotation and may be adjusted in the event of any increase or reduction in costs between that date and the date of performance. The Company further reserves the right to amend Quotations prior to acceptance where typographical, clerical or other errors have been made.
3.8 If a Quotation does not state a time for performance of the Company’s obligations, the performance of the contract will be subject to available capacity. In any event, time for such completion and delivery shall not be of the essence and the Company shall have no liability to the Customer arising out of or in connection with any failure to provide the Services by any agreed dates.
3.9 Whilst the Company cannot guarantee specific delivery dates, since actual delivery is outside of its control, it will use reasonable endeavours to ensure that deliveries are made within the time or upon the dates agreed with the Customer.
4.1 For the avoidance of doubt:
4.1.1 the Company may as part of the Services purchase both retail and wholesale Royal Mail products on behalf of the Customer. The Postal Charges charged by Royal Mail are passed on to the Customer without discount or addition.
5.1 The Company reserves the right to vary its general charges at any time.
5.2 The Fees and Postal Charges are expressed exclusive of Value Added Tax (or other applicable sales tax) which shall be payable by the Customer in addition to the Fees and Fiscal Charges at the prevailing rate from time to time.
5.3 For the avoidance of doubt, VAT will not be charged on Royal Mail charges which are not subject to VAT.
5.4 In the event where additional charges are made to the Company by Royal Mail due to the Customer not providing correct information in relation to product specification, the Customer shall be responsible for the payment of such additional charges.
5.5 The Customer shall pay the Fees and Postal Charges (together with VAT or other applicable sales tax on such sums) in accordance with the credit terms as agreed in writing between the Company and the Customer from time to time.
5.6 Without prejudice to any other remedy which the Company may have, in the event that any sums due under this Agreement are not received by the Company in cleared funds by the due dates the Company may:
5.6.1 charge interest on the overdue amount at the rate of 4% above the base rate of Barclays Bank Plc for the time being from the due date until the overdue sums have been received by the Company in cleared funds;
5.6.2 suspend the performance of any services or obligations required to be performed by the Company under this
Agreement until such time as payment of the overdue sums (together with any interest) have been received by the Company in cleared funds; and/or
5.6.3 terminate the Agreement by 30 days notice in writing to the Customer in the event of a persistent failure to make such payments on the due date. “Persistent failure” shall be construed as meaning a failure to make any three payments due under this Agreement by or on the due dates in any period of three calendar months.
5.7 The Customer hereby agrees to indemnify the Company against all costs and charges levied by any third party for services rendered by that third party with the agreement of the Customer.
5.8 All payments to be made by the Customer under this Agreement shall be made without set–off or counterclaim of any description.
6.1 The Customer shall:
6.1.1 provide the Company, its employees and sub–contractors with all such assistance as is reasonably necessary to enable the Company to perform its obligations under this Agreement;
6.1.2 make full disclosure to the Company of all information and material relevant to the subject matter of the Services;
6.1.3 ensure that any such information and material is true, accurate and complete in all respects;
6.1.4 ensure that any such information and material is free from any defamatory or unlawful content and that it does not infringe any rights of any third party;
6.1.5 ensure that such information is provided within sufficient time to enable the Company to provide the Services in accordance with this Agreement; and
6.1.6 ensure that it complies with the requirements of the Data Protection Act 1998, as amended (“the Act”) in relation to any personal data (as defined in the Act) that it provides to the Company;
6.1.7 indemnify the Company (and keep it indemnified) against all costs claims expenses and other liabilities arising out of or in connection with any breach by the Customer of its obligations in this Clause 6.1.
6.2 In the event that the Company is required to produce any material (in written or electronic format) as part of the Services, the Customer shall be solely responsible for ensuring the completeness and accuracy of:
6.2.1 the information provided to the Company to be included or referred to in such material; and 6.2.2 the information contained or referred to in the material once produced by the Company. Acceptance of the material by the Customer shall be deemed acceptance by the Customer that the contents of the material are true and accurate and that it complies with the Customer’s requirements in all other respects.
6.3 Each party acknowledges and accepts that it may receive information of a confidential nature relating to the other party, its business and Customers including, but not limited to, pricing information from the Company and the Software (”Confidential Information“). Each party undertakes to the other that it will use the Confidential Information solely for the purposes envisaged by this Agreement and will not disclose the same unless:
6.3.1 the other party has consented in writing to such disclosure; or
6.3.2 such disclosure is required by law; or
6.3.3 such information is already in the public domain, other than as a result of a breach of any obligation of confidentiality.
6.4 Risk in any materials supplied by the Customer to the Company in connection with the Services (“Customer Materials”) remains with the Customer at all times and the Customer is responsible for insuring the Customer Materials.
6.5 The Company will not check the content of the Customer Materials.
7.1 The Customer shall not place Dangerous Goods with the Company unless:
7.1.1 At or before each time of placing Dangerous Goods with the Company the Customer has supplied a declaration in writing giving adequate and sufficient information as required by the Company as to the nature of the Dangerous Goods, the hazards presented by them and the precautions to be taken in respect of them and
7.1.2 The Company has agreed in writing to take the Dangerous Goods after being supplied with such a declaration.
7.2 Subject to the foregoing, under no circumstances will the Customer place articles or substances with the Company which are Dangerous Goods. Any contraventions of this clause 7 may at the Customers sole risk and expense, result in the Customer being requested to retrieve (if necessary) the whole or part of any materials which is likely to put the health and safety of persons at risk. The Company may, at its sole discretion, dispose or destroy such materials via the use of a licensed waste contractor (also at the expense of the Customer) if it is deemed expedient to do so for reasons of health or safety.
8.1 Where plant, power or labour is required in addition to the Company’s driver for the purpose of loading or unloading a consignment it shall be the responsibility of the Customer to ensure the provision, adequacy and safety of the same and the Company will have no obligation to do so.
8.2 The Company shall not be required to provide service beyond the usual place of collection or delivery but if any such service is given by
the Company it shall be at the sole risk of the Customer who shall
indemnify the Company against all claims, costs, demands and expenses whatever which could not have been made if such service had not been given.
8.3 Where the Company is without prior arrangement in writing with the Customer called upon to assist in the loading of Consignments requiring plant, power or labour in addition to its driver the Company shall be under no liability whatsoever to the Customer for any damage whatsoever, however caused, arising out of such loading and the Customer shall indemnify the Company against all claims and demands whatsoever which could not have been made if such assistance had not been given.
9.1 The Company shall, if so required, sign a document prepared by the Customer acknowledging the receipt of the Consignment but no such document shall be evidence of the condition or of the correctness of the declared nature, quantity or weight of the Consignment at the time it is received by the Company. The Company shall be entitled to check the quantity, condition, composition and weight of the Consignment and in the event of any discrepancy in the quantity, condition, composition and weight ascertained, the Company’s check shall prevail.
9.2 The Customer shall ensure that all Consignments are properly packaged for carriage, handling, sorting and transhipment (whether mechanical or otherwise) by the Company and that they are sufficiently and correctly addressed including the post code, and labelled. The Consignment should be packaged in a way that represents no risk to the Company’s employees or other customers goods. In the event that the Consignment does not originate from the Customer’s usual point of despatch it is the responsibility of the Customer to ensure the adequacy of packaging from its customers or suppliers.
9.3 If a Consignment is in the Company’s opinion badly packed the Company may at its sole discretion unpack and repack the Consignment at the Customer’s risk and expense.
9.4 Where a Consignment is mis–addressed the Company may at its sole discretion hold the consignment until the correct address or other information relating to the label has been provided by the Customer. The Company may re–label the Consignment on receipt of such information. If information is not received within two working days it will be returned to the Customer.
9.5 It is the responsibility of the Customer to prepare all necessary customs documentation and to ensure that it is complete and accurate and is made available to the Company at the time of collection of the Consignment.
10.1 Transit shall commence when the Company takes possession of the Consignment whether at the point of collection or at the Company’s premises.
10.2 Transit shall, unless otherwise previously determined, end when the Consignment is delivered to the recipient’s address or suitable alternative location in accordance with the service offered, except where delivery fails through loss or mis–delivery of the consignment.
11.1 Any intellectual property rights, including without limitation patents, trademarks, designs, copyright and database rights whether registered, registrable or not ( “Intellectual Property “), in the Customer Materials shall remain the property of the Customer.
11.2 Except as provided for by clause 11.1 above all Intellectual Property in any specifications, design or other concepts or materials produced by the Company in connection with the Services shall vest in the Company.
11.3 Save as expressly set out in this Agreement, the Customer shall acquire no rights in any Intellectual Property belonging to the Company.
11.4 The parties acknowledge that during the course of providing the Services the Company will develop experience, expertise processes, procedures, know how and methodology relating to the subject matter of and performance of the Services (”the Methodology“). The parties agree that nothing in this Agreement shall be deemed to assign any rights of ownership or other Intellectual Property relating to the Methodology to the Customer and the Customer acknowledges that the Company shall own all Methodology and be entitled to use the Methodology for any of its customers or for any other purpose whatsoever.
12.1 The Customer shall not be entitled to assign or sub–contract or otherwise dispose of any of its rights or obligations under this Agreement without the prior written consent of the Company.
12.2 For better and effective performance of the Services the Company shall be entitled to sub–contract the Services or any part of them without the consent of the Customer.
12.3 Where the Company deems it appropriate, it may require the Customer to enter into a separate agreement with any sub–contractor or other third party selected by the Company. In the event that the Customer declines to enter into such separate agreement the Company may suspend or withdraw from provision of the Services.
13.1 All warranties and conditions whether implied by statute, common law or otherwise are excluded to the fullest extent permitted by law.
13.2 The Company shall not be liable to the Customer for any loss, damage, costs, expenses or other claims for compensation arising out of or in connection with any breach by the Customer of its obligations under this Agreement.
13.3 The Company shall not be liable to the Customer by reason of any tortious action or any representation (unless fraudulent), or any implied warranty, condition or other term, or under the express terms of the Agreement, for any loss of anticipated revenues, loss or corruption of data, loss of profits, loss of business opportunities, loss of goodwill, damage to reputation, any indirect, special or consequential loss damage, costs or expenses, save where such losses are due to negligence on the part of the Company, its employees or agents, which arises out of or in connection with this Agreement, except as expressly provided in this Agreement.
13.4 The Company shall use reasonable endeavours to ensure that no loss of or damage to any Customer Materials which it has in its possession or which it is required to distribute pursuant to this Agreement occurs and that there are no errors in materials produced by the Company in accordance with clause 6.2
13.5 The Company reserves the right by written notice given at any time to exclude liability for damage to Consignments of a fragile, cast or brittle nature, scientific instruments, electrical equipment, glass or similar goods, which will then be carried at the Customer’s own risk.
13.6 In the event of damaged Consignments, the Company reserves the right to recover the damaged Consignments for inspection prior to instigating a claim enquiry.
13.7 The entire liability of the Company under or in connection with this Agreement in respect of each Job shall not exceed an amount equal to the Fees paid to the Company for that Job less all relevant Postal Charges (which for the avoidance of doubt shall include any Royal Mail or An Post charges incurred in accordance with clause 4) and shall be limited as follows:
13.7.1 in the event of loss of or damage to a Consignment or mis– delivery or non–delivery of the Consignment, the Company’s liability shall not exceed £25.00.
13.8 Nothing in this Agreement shall operate to limit or exclude the liability of the Company:
13.8.1 for death or personal injury caused by the negligence of the Company, its employees, agents or subcontractors; or
13.8.2 under Part 1 of the Consumer Protection Act 1987; or
13.8.3 for damage suffered by the Customer as a result of any breach by the Company of the condition as to title or the warranty as to quiet possession implied by Section 12 of the Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982; or
13.8.4 for fraud (including, but not limited to, fraudulent misrepresentation); provided that nothing in this Clause confers any right or remedy upon the Customer to which it would not otherwise be entitled.
14.1 Before submitting any claims the Customer must ensure that it can provide evidence of such claim otherwise the claim may not be accepted.
14.2 Should a Customer wish to make a claim then they should complete a claim form which can be obtained from the Company and return the claim form to the Company at its registered office.
14.3 All claims for loss of or damage to a Consignment must be made by the Customer in writing within fourteen (14) days of the date of delivery.
14.4 Should the Customer fail to comply with the time limits specified in this clause then the Company will have no liability whatsoever.
15.1 The Company shall not in any circumstances be liable in respect of a Consignment where there has been fraud on the part of the Customer or the owner of the Consignment or the employees or agents of either in respect of that Consignment.
16.1 The Customer shall indemnify the Company against:
16.1.1 All consequences suffered by the Company (including but not limited to claims, demands, proceedings, fines, penalties, damages, costs, expenses and loss of or damage to the carrying vehicle and to other consignments carried) due to any error, omission, mis–statement or misrepresentation by the Customer or other owner of the Consignment or by any employee or agent of either of them, insufficient or improper packaging, labelling or addressing of the Consignment or fraud in accordance with clause 15.
16.1.2 All claims and demands arising out of the Services under this Agreement made in excess of the liability of the Company under this Agreement
16.1.3 All losses suffered by and claims made against the Company in consequence of death, personal injury, loss of or damage to property caused by or arising out of the carriage by the Company of Dangerous Goods whether or not declared by the Customer as such.
17.1 Without prejudice to any other remedy which it may have, the Company may terminate this Agreement in whole or in relation to any Quotation immediately by giving written notice to the Customer in the event that:
17.1.1 the Customer commits any breach of this Agreement and (if capable of remedy) fails to remedy such breach within 30 days (or such shorter period as the Company may reasonably specify) after being given written notice to do so; or
17.1.2 the Customer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) enters administration or goes into liquidation (otherwise than for the purposes of solvent amalgamation or reconstruction or an encumbrancer takes possession, or a receiver or administrative receiver is appointed, over all or any of the property or assets of the Customer.
17.2 In the event that the Agreement is terminated in accordance with this clause 17 or Clause 5.6 above:
17.2.1 the Company shall be entitled to invoice for all the Fees
attributable to the work undertaken and expenses incurred by the Company to the date of termination at the rates set out in the Quotation (insofar as such sums have not previously been invoiced) and all invoices shall become immediately due and payable; and
17.2.2 the provisions of Clause 5.6 shall apply to all sums due in accordance with Clause 17.2.1.
17.3 In the event that the agreement is terminated by the company in accordance with this clause 17 or Clause 5.6 above:
17.3.1 the company shall buy back outstanding envelope and label stock at 75% of its face value at the time of termination.
17.4 In the event that the agreement is terminated by the customer, the company shall not be liable to buy back stock.
17.5 In the event of the termination of a fixed term contract, the company’s liability for the buying back of stock at termination shall be limited to a maximum of one month’s agreed usage at 75% of face value.
The Company shall not be liable for any loss or damage or failure or delay in performance of this Agreement which is caused by circumstances beyond its reasonable control.
19.1 Any notice or consent required or permitted under this Agreement shall be in writing and shall be sent by first class post, hand delivery, fax or email.
19.2 Subject to Clause 19.3 below any such notice consent or other document shall be deemed to have been duly received:
19.2.1 if despatched by fax or email – 24 hours from the time of the despatch; or
19.2.2 if despatched by prepaid post – 3 days from the time of posting to the relevant party; or
19.2.3 if despatched by hand delivery – at time of actual delivery.
19.3 Unless otherwise notified in writing for the purpose of this clause the postal and email addresses and fax numbers of the parties are as referred to in the Quotation.
19.4 In proving service by post it will be sufficient unless any relevant part of the postal service is affected by industrial action to prove that the envelope containing the notice was duly stamped addressed and posted to the addresses specified in Clause 19.3 above. In proving service by fax or email it shall be sufficient to prove that it was properly addressed and dispatched to the numbers or address specified in Clause 19.3 above.
20.1 No delay or failure on the part of any party in enforcing any provision in this Agreement shall be deemed to be a waiver or create a precedent or in any way prejudice any party’s rights under this Agreement. The rights and remedies provided in this Agreement are cumulative and are additional to any rights or remedies provided by law.
20.2 If any provision in this Agreement is declared void or unenforceable by any court or other body of competent jurisdiction, or is otherwise rendered so by any applicable law, such provision shall to the extent of such invalidity or unenforceability be deemed severable and all other provisions of this Agreement not affected by such invalidity or unenforceability shall remain in full force and effect. If any provision in this Agreement is found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question shall apply with such deletion(s) as may be necessary to make it valid and enforceable.
20.3 This Agreement shall constitute the entire agreement and understanding between the parties with respect to all matters which are referred to in it and the subject matter of it and shall supersede any previous agreement(s), prior drafts, undertakings, representations, warranties and arrangements of any nature whatsoever whether or not in writing between the parties in relation to the matters referred to in this Agreement or in connection with the subject matter of it.
20.4 Each of the parties acknowledges and agrees that it has not been induced to enter into this Agreement in reliance upon, and has not given, any warranty, representation, statement, agreement or undertaking of any nature whatsoever other than as expressly set out in this Agreement.
20.5 Nothing in this Agreement shall operate to exclude or limit any liability for fraud.
20.6 This Agreement shall be governed by and construed in accordance with Northern Irish Law. Any dispute arising under or in connection with this Agreement shall be subject to the exclusive jurisdiction of the Northern Irish courts, to which each of the parties irrevocably submits.
