AGREED TERMS:
(a) capitalised terms that are not otherwise defined have the same meaning as given to them in the RHA Conditions (as defined below); and
(b) the definitions set out in Clause 2 (Definitions) also apply.
2. DEFINITIONS
2.1 The following definitions and rules of interpretation apply in this Agreement:
Acceptance of Order:
HSD’s written (including email) acceptance of the Customer’s Delivery Instruction.
Agreement:
the contract between the Customer and HSD for the Services made in accordance with this Agreement, the Acceptance of Order and the RHA Conditions.
Applicable Law:
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, bank 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.
Charges:
the sums payable for the Services as set out in the Acceptance of Order.
Commencement Date:
the date on which HSD issues the Acceptance of Order.
Data Protection Legislation:
All applicable data protection and privacy legislation in force from time to time in the UK including the Data Protection Act 2018 (DPA 2018) and regulations made thereunder, the UK GDPR (as defined in the DPA 2018), and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426).
Delivery:
the end of transit of the Customer’s goods in accordance with condition 7(2) of the RHA Conditions.
Delivery Instruction:
a written or verbal (which must be confirmed in writing) instruction from the Customer to HSD to deliver its goods to a Consignee within the UK only.
RHA Conditions:
means the Road Haulage Association Limited’s Conditions of Carriage 2024.
Services:
means the haulage services to be provided by HSD to the Customer in respect of each Consignment, as set out in the Acceptance of Order.
Storage Services:
means the storage and handling of goods within a Consignment including the unloading, loading and movement of such goods between HSD’s facilities.
HSD:
HSD LIMITED incorporated and registered in England and Wales with company number 08285070 whose registered office is at 1 Unit 1 Power Park, Commercial Road, Goldthorpe Industrial Estate, Rotherham, England, S63 9BL.
2.2 Clause and paragraph headings shall not affect the interpretation of this Agreement.
2.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
2.4 The Schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Schedules.
2.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular and a reference to one gender shall include a reference to the other genders.
2.6 A reference to writing or written includes email (except as otherwise expressly set out in this Agreement) but not fax.
2.7 A reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time. A reference to legislation or a legislative provision shall include all subordinate legislation made from time to time under that legislation or legislative provisions.
3. BASIS OF CONTRACT
3.1 The Delivery Instruction constitutes an offer by the Customer to purchase Services in accordance with this Agreement.
3.2 The Delivery Instruction shall only be deemed to be accepted when HSD issues the Acceptance of Order and accordingly the Agreement shall come into existence on the Commencement Date.
3.3 If there is any conflict or inconsistency between this Agreement and the terms of the Acceptance of Order, the provisions in this Agreement shall prevail to the extent necessary to resolve the conflict or inconsistency, unless the Acceptance of Order expressly states that a specific provision in the Acceptance of Order prevails over a specific provision in this Agreement.
4. RHA CONDITIONS
4.1 Subject to clause 4.2, the terms and provisions of the RHA Conditions are incorporated by reference into this Agreement.
4.2 If there is an inconsistency between any of the provisions of this Agreement and the provisions of the RHA Conditions, the provisions of this Agreement prevail.
5. INSTRUCTIONS AND DELIVERY
5.1 HSD shall provide the Services to the Customer on the terms of this Agreement and in consideration of the payment of the Charges by the Customer.
5.2 The Customer shall make a Delivery Instruction to HSD and acknowledges that a Delivery Instruction will only be validly issued if it contains:
(a) the requested delivery date;
(b) a collection address and delivery address;
(c) collection reference;
(d) pallet number;
(e) pallet weight; and
(f) the information detailed at clause 6.1(d), as applicable.
5.3 Within a reasonably practicable timeframe of receipt of the Delivery Instruction, HSD shall confirm in writing whether it accepts the Delivery Instruction by issuing Acceptance of Order. For the avoidance of doubt, a Delivery Instruction that does not comply with the provisions of clause 5.2 will be automatically rejected by HSD.
5.4 If a Delivery Instruction does not comply with the provisions of 6.1(d) and such information is provided to HSD after an Acceptance of Order is issued, the Customer agrees that HSD shall not be responsible for any delays or other adverse impact on the performance of the Agreement and may without liability to the Customer terminate the Agreement by written notice to the Customer if it deems that it cannot comply with the Customer’s subsequent instructions.
5.5 Where HSD is, at the time of the Delivery Instruction, providing Storage Services in relation to the Consignment, HSD shall collect the Consignment from the facility in which it is stored and effect Delivery of the applicable Consignment in accordance with the respective Delivery Instruction.
5.6 Where HSD is not, at the time of the Delivery Instruction, providing Storage Services in relation to the Consignment, HSD shall collect the Consignment set out in each Delivery Instruction from the Customer and effect Delivery of the applicable Consignment in accordance with the respective Delivery Instruction.
5.7 Where HSD is prevented from delivering a Consignment as a result of the Customer’s:
(a) instruction to HSD ‘to await order’ or ‘to be kept till called for’ or upon any like instructions; or
(b) failure to call for and remove the Consignment within a reasonable time. Delivery shall be deemed to have taken place one clear day after after HSD notified the Customer that the Consignment was ready for delivery (by letter, telephone, fax or email or other agreed method of communication).
5.8 Where HSD has attempted to deliver a Consignment but is unable to effect such delivery for any other reason whatsoever that is not covered under clause 5.7, Delivery shall be deemed to have taken place one clear day after HSD notified the Customer that it has attempted to deliver the Consignment (by letter, telephone, fax or email or other agreed method of communication).
6. CUSTOMERS OBLIGATIONS
6.1 In addition to the warranties provided by the Customer in the RHA Conditions, the Customer shall:
(a) co-operate with HSD in all matters relating to the Services;
(b) co-operate with all relevant authorities on all matters relating to the Services;
(c) promptly provide all documents and information reasonably requested by HSD to enable it to provide the Services in accordance with this Agreement;
(d) at the time of providing a Delivery Instruction, provide details of any special precautions for storage, handling or carriage of each Consignment, required by the nature, weight or condition of the Consignment or by any Applicable Law;
(e) act at all times in compliance with the Applicable Law;
(f) procure that the Consignee or its appointed agent accepts Delivery in accordance with the Delivery Instruction; and
(g) notify HSD immediately in writing on a change of control of the Customer.
7. CHARGES AND PAYMENT
7.1 The Customer shall pay the Charges to HSD.
7.2 The Customer shall remain liable to HSD for any such freight, duties, charges, dues or other expenses. The Customer agrees that no Consignment shall be consigned ‘carriage forward’.
7.3 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.
7.4 HSD may, by giving notice to the Customer at any time before delivery, increase the Charges to reflect any increase in the cost of the Services that is due to:
(a) any factor beyond HSD’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other costs);
(b) any request by the Customer to change the delivery date(s); or
(c) any delay caused by any instructions of the Customer or failure of the Customer to give or delay by the Customer in giving HSD adequate or accurate information or instructions.
7.5 HSD shall invoice the Customer on or immediately after Delivery.
7.6 All amounts due from Customer to HSD under this agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
7.7 The Customer shall pay each invoice submitted to it by HSD within 30 days following the end of the month during which the invoice is issued, to a bank account nominated in writing by HSD from time to time. If the Customer has a credit account with HSD, HSD may set and vary credit limits from time to time on notice to the Customer and withhold all further Services if the Customer exceeds such credit limit.
7.8 If the Customer fails to make any payment due to HSD under this Agreement by the due date for payment, then, without limiting HSD’s remedies under clause 11:
(a) the Customer shall pay 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%; and
(b) HSD may suspend performance of part or all the Services until payment has been made in full.
8. LIMITATION OF LIABILITY
8.1 References to liability in this clause 8 include every liability arising under or in connection with this Agreement including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
8.2 Nothing in this clause 8 shall limit the Customer’s payment obligations under this Agreement.
8.3 HSD shall not be liable for:
(a) loss or damage caused by inherent liability due to wastage in bulk or weight, latent or inherent defect, vice or natural deterioration of the goods within a Consignment;
(b) loss or damage caused by any special handling or storage requirements in respect of a Consignment not notified in writing to HSD by the Customer; or
(c) physical loss, mis-delivery of or damage to a Consignment, to the extent such liability arises as a result of the Customer’s own acts, omissions, neglect, default or other wrongdoing on the part of the Customer.
8.4 The parties agree that the sum calculated at condition 12.1(c) of the RHA Conditions shall be amended to £1,300 per tonne on the gross weight of the goods actually lost, mis-delivered or damaged.
8.5 The Customer shall indemnify HSD against all liabilities, damages, losses, fines, expenses and costs incurred by HSD as a result of any claim made against HSD:
(a) in respect of damage to property, death or personal injury arising out of or in connection with the storage, handling or carriage of a Consingment which contains 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 Consignment;
(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 goods within a Consignment; and
(d) for conversion arising out of or in connection with the storage, handling or carriage of any Consignment in accordance with the Customer’s instructions.
9. NON-SOLICITATION
9.1 To protect HSD’s respective legitimate business interests, the Customer covenants with HSD that it shall not (except with the prior written consent of HSD):
(a) attempt to solicit or entice away; or
(b) solicit or entice away, from the employment or service of HSD the services of any Restricted Person other than by means of a national advertising campaign open to all-comers and not specifically targeted at such staff of HSD.
9.2 The Customer shall be bound by the covenant set out in clause 9.1 for the duration of the Agreement, and for a period of 12 months after termination or expiry of this Agreement.
9.3 For the purposes of this clause 9 a Restricted Person shall mean any firm, company or person employed or engaged by HSD for the duration of the Agreement, who has been engaged in the provision of the Services or the management of this Agreement.
10. DATA PROTECTION
HSD and Customer shall each perform their obligations under this Agreement in accordance with the Data Protection Legislation.
11. TERMINATION
11.1 Either party shall be entitled to immediately terminate this Agreement by written notice to the other if:
(a) the other party commits any continuing or material breach of any of the provisions of this Agreement and, in the case of such breach which is capable of remedy, fails to remedy the same within thirty days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied;
(b) an encumbrancer takes possession or a receiver is appointed over all of the property or assets of that other party;
(c) that other party makes any voluntary arrangement with its creditors or becomes subject to an administration order;
(d) that other party goes into liquidation (except for the purpose of an amalgamation, reconstruction or other reorganisation and in such manner that the company resulting from the reorganisation effectively agrees to be bound by or to assume the obligations imposed on that other party under this agreement);
(e) the other party ceases, or threatens to cease, to carry on business; or
(f) there is a change of control of the other party.
11.2 HSD shall be entitled to immediately terminate this Agreement by written notice to the Customer if:
(a) the Customer fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment; or
(b) the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this Agreement is in jeopardy.
11.3 Upon termination of this Agreement:
(a) Customer shall immediately pay any outstanding unpaid invoices and interest due to HSD. HSD shall submit invoices for any Services that it has supplied, but for which no invoice has been submitted, and the Customer shall pay these invoices immediately on receipt; and
(b) each party shall return to the other party all confidential information of the other party and erase all of the other party’s confidential information from its computer systems (to the extent possible) and shall certify that it does not retain the other party’s confidential information.
11.4 Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination.
12. STORAGE SERVICES
In the event HSD provides Storage Services to the Customer in respect of any of the Customer’s goods, HSD’s Storage Terms and Conditions shall apply.
13. GENERAL
13.1 Entire Agreement
(a) This Agreement constitutes the entire agreement between the parties.
(b) Each party acknowledges that in entering into this Agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall has no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
13.2 Variation
No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
13.3 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.
13.4 Notices
(a) Any notice given to a party under or in connection with this Agreement 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 its registered office (if a company) or its principal place of business (in any other case); or
(ii) sent by email to the addresses confirmed between the parties for such purposes.
(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.
13.5 Third party rights
This Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
13.6 No partnership or agency
Nothing in this Agreement 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.
13.7 Governing law and jurisdiction
This Agreement 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 all respects in accordance with the laws of England and each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.
