Conditions of UPS SCS (UK) Limited
In these conditions the following words have the following meanings:
“the Company” means UPS SCS (UK) Limited and any sub-contractor appointed pursuant to clause 17.
“Consignee” means the person, firm or company to whom the Customer has directed that Goods are to be delivered to by the Company.
“Consumer” means a consumer as defined by the Customer Protection Act 1987.
“the Contract” means the contract between the Company and the Customer incorporating these conditions.
“Contract Price” means the price to be paid by the Customer to the Company for the Services.
“the Customer” means the person, firm or company entering into the Contact.
“Dangerous Goods” means (a) dangerous goods as defined by the Regulations and (b) any goods which although not included in (a) above are of a similar hazardous or dangerous nature.
“Day” means any period of 24 hours commencing at midnight excluding Sunday, and public holidays.
“Force Majeure” means any circumstances beyond the reasonable control of the Company.
“the Goods” means the goods carried on behalf of or at the request of the Customer under the terms of the Contract.
“RHA Conditions” means the Road Haulage Association Limited’s Conditions of Carriage from time to time in force.
“Regulations” means The Carriage of Dangerous Goods by Road and Rail (Classification, Packaging and Labelling) Regulations 1994 (and as amended from time to time).
“the Services” means any works carried out or services supplied by the Company to the Customer under the terms of the Contract.
“VAT” means Value Added Tax.
(a) The Contract contains the entire agreement between the parties with respect to its subject matter. Unless otherwise agreed in writing by the Company all offers are made and any contract resulting from such offers are subject to these Conditions which take precedence over (1) any earlier sets of conditions appearing in the Company’s catalogues or elsewhere and (2) any terms, conditions or stipulations incorporated or referred to by the Customer whether in the acceptance of the Company’s offer or in any negotiations with the Company or its agents.
(b) Any quotation given by the Company shall not constitute an offer but shall constitute an invitation to treat.
(c) Nothing contained in these conditions shall in any way restrict the statutory rights of the Customer whether under the Consumer Protection Act 1987 or otherwise where such Customer is also a Consumer.
(d) The Company is not a common carrier.
(e) It will be the responsibility of each party to satisfy itself that the person signing on behalf of the other party is authorised so to do.
(f) Save as set out in the Contract, this Contract is personal to the respective parties and a party who is not a party to this Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of this Contract. The Customer may not, without the written consent of the Company, assign, mortgage, charge (otherwise that by floating charge) or otherwise dispose of any of its rights under the Contract.
3. EXCLUDED CATEGORIES OF GOODS
(a) The Company may in its absolute discretion exercised at any time, refuse to carry any Goods.
(b) The following categories of goods are excluded from the Contract and the Company will in no circumstances agree to carry or store such goods:- (i) Dangerous Goods. (ii) Antique or unpacked furniture. (iii) Any creature or organism (whether alive or dead). (iv) Any fresh, frozen or temperature controlled goods or any goods liable to deterioration or wastage in transit. (v) Any goods of a fragile nature including but not limited to unpacked glass, bottles, greenhouses, porcelain or china. (vi) Insufficiently or improperly labelled, packaged or addressed goods. (vii) Goods for delivery to a private house. (viii) Goods of a verminous, infested, contaminated or condemned nature. (ix) All goods of an obscene, pornographic or lewd nature. (x) All illegal drugs (whether illegal in the country of origin, the country of ultimate delivery or both).
(c) The Customer shall fully and effectively indemnify and keep indemnified the Company against any and all losses (including consequential losses), costs, claims, demands and liabilities (including interests, disbursements and all legal costs) incurred by the Company arising out of any carriage or storage by the Company of any goods specified in condition 3(b).
(a) Unless stated to the contrary all tenders and quotations are exclusive of VAT which shall be charged at the rate applicable at the date of invoice.
(b) The Company’s charges shall, unless otherwise agreed with the Customer in advance and confirmed by the Company in writing, be calculated in accordance with the Company’s tariff in force at the date when transit commences.
(c) The Company reserves at its absolute discretion the right to vary the Contract Price if and so often as there is any increase in the cost to the Company which is (without limitation) due to: any factor beyond the control of the Company (such as, any foreign exchange fluctuation, currency regulation, increase in import and export duties, significant increase in the costs of labour or other costs including fuel surcharges); any delay caused by any failure of the Customer or the Consignee to give the Company adequate information or instructions; any delay caused by any failure of the Customer to adequately package, label or address the Goods.
(a) The Company reserves the right to require cash payment against the whole or part of the invoice of the Contract Price either on delivery of the Goods or at any time prior to the commencement of the Services. Where the Company does not exercise this right payment is due 28 days after the date of the Company’s invoice (“the Due Date”) to the Customer unless otherwise specifically agreed in advance by the Company with the Customer and confirmed in writing by a director of the Company.
(b) Any sums not paid by the Customer by the due date shall bear interest at the rate of 4% above Lloyds Bank plc’s annual base lending rate from the Due Date to the date when payment is received by the Company.
(c) The time of payment of the Contract Price shall be of the essence of the Contract.
(d) Payment of the Contract Price and of any other payments falling due pursuant to these Conditions shall be the ultimate responsibility of the Customer. Where the Goods are consigned “carriage forward” the Company shall be at liberty to request payment of the Contract Price from the Consignee but if payment is not received by the Company within seven days of request from the Consignee then the Company may request payment from the Customer who shall immediately discharge the outstanding payment.
(e) The Customer will not be entitled to set-off, deduct, counterclaim or otherwise defer or withhold payment of any monies payable by the Customer to the Company pursuant to the Contract or these Conditions.
(f) If the Customer is in default of any of its obligations to make payment to the Company under this Contract all sums due from the Customer to the Company under any contract between the Customer and the Company shall at the Company’s discretion immediately become due and payable and if not immediately paid bear interest at the rate of 4% above Lloyds Bank plc’s annual base lending rate.
6. LOADING AND UNLOADING
(a) When collection or delivery takes place at the Customer’s premises it is the Customer’s responsibility to ensure that any of its equipment that is to be used or an integral part of the Services is fit for its purpose having due regard to the Services being provided, and is safe and compliant with applicable legislation. The Company shall not be under any obligation to provide any plant, power or labour which may be required for loading or unloading the Goods at the Customer’s premises.
(b) Any assistance given by the Company, its servants or agents beyond the usual place of collection or delivery shall be at the sole risk of the Customer who will hold the company harmless and fully and effectively indemnify and keep indemnified the Company against any claim, cost, expense or demand of any nature which could not have been made against the Company if such assistance had not been given.
(c) Goods requiring special appliances for loading or unloading from the Company’s vehicle are accepted for carriage only on condition that the Customer has duly ascertained (from the Consignee, if appropriate) that such appliances are available at the destination. When the Company is without prior arrangement in writing with the Customer called upon to load or unload such goods the Company, its servants or agents shall be under no liability whatever to the Customer for any damage howsoever caused whether or not such damage is caused by any act or default of the Company, its servants or agents and the Customer shall hold the Company harmless and full and effectively indemnify and keep indemnified the Company against any claim, cost, expense or demand which could not have been made if such assistance had not been given.
(a) Where a time period is agreed by the Company and the Customer for performance of the Contract unless such period is extended by mutual consent and confirmed in writing the Customer shall accept performance within that time period.
(b) Subject to condition 7(a), any time or date agreed for the performance of the Contract by the Company is an estimate only and the Company shall not be liable for the consequences of any delay.
(c) It is the Customer’s responsibility to provide to the Company adequate, clear and accurate instructions and details necessary to enable the Company to perform the Services and the Contract. If for any reason the Customer fails to provide such instructions and details, or, if for any reason not related to any act of default by or on the part of the Company, either the Consignee or the Customer is unable to accept performance of the Contract at the time when the Company is ready and willing to perform the Contract, the Customer shall fully and effectively indemnify and keep indemnified the Company in respect of any losses occasioned to the Company by reason of such failure on the part of either the Consignee or the Customer.
(d) If the Customer defaults in paying any sum due under this Contract or any other contract between the parties as and when such sums become due, the Company shall have the right to: suspend all further performance of the Contract until such default is made good; or cancel the Contract so far as any of the Goods remain to be delivered or Services remain to be performed under it.
8. TIME LIMIT FOR CLAIM
(a) In respect of the Goods the Company shall not be liable for: (i) loss from a package or from an unpackaged consignment; or (ii) damage, deviation, misdelivery, delay (subject to condition 10) or detention unless, and entirely without prejudice to or admission of the Company’s liability, in either case a claim is made by the Customer in writing (otherwise than upon a consignment note or delivery document) and served upon the Company within seven days (including Sundays and Bank Holidays) after delivery.
(b) The Company shall not be liable for loss or non-delivery of the whole of the Goods or any separate package forming part of the Goods unless, and entirely without prejudice to or admission of the Company’s liability, a claim is made by the Customer in writing (otherwise than upon a consignment note or delivery document) and served upon the Company within 42 days (including Sundays and Bank Holidays) after collection of the Goods by the Company, its servants or agents.
(c) If a claim is made under this condition 8 the Customer will supply to the Company and/or its insurers in writing all reasonable information requested by them or either of them in connection with such claim within 10 days of receipt of any notice in writing requesting such information being served upon the Customer by the Company or its insurers.
(d) If no such notice as is provided for in condition 8 (a) or 8 (b) is received by the Company within the time limits specified the Goods shall be deemed to have been delivered in accordance with the Contract and the Customer will not make any claim against the Company, its servants or agents in respect of delivery of the Goods or the Contract generally.
(e) The Customer agrees that the Company may obtain proof of delivery of the Goods in one or more of the following formats: a signed proof of delivery; a Goods-In Number communicated via the Company’s website; a Goods Receipt Notification communicated via the Company’s website; or some other format which is acceptable to the Company in the circumstances as an adequate receipt for proof of delivery. The Company may retain as an electronic image proof of delivery received in any of the formats mentioned above. If so, the Customer will accept any such reproduced electronic copy as an acceptable, and conclusive proof of delivery.
(f) The Company reserves the right to charge the Customer £10.00 for each and every proof of delivery (including a repeat request for a proof of delivery relating to the same Consignment) requested by the Customer where such request is made more than 90 days after collection of the Goods. (f) Where the Customer gives notice to the Company pursuant to condition 8 (a) (ii) that any of the Goods have been damaged, the Customer must (1) preserve those Goods that are alleged to be damaged for a period of 28 days from the date of the Customer’s notice and (2) permit the Company to inspect the Goods or to collect the Goods for inspection on reasonable notice being given by the Company. If the Customer is in breach of its obligations under this clause the Company, its servants or agents shall have no liability to the Customer whatsoever.
9. CONSIGNMENT NOTES
(a) On collection of the Goods the Company, its servants or agents shall, if required, sign a document prepared by the Customer acknowledging receipt of the Goods by the Company, its servants or agents, but no such document shall be evidence of the condition or of the correctness of the declared nature, quantity or weight of the Goods.
(b) Where Goods are accepted by a Consignee, the Consignee will be acting as agent for the Customer.
(c) The Consignee or the Customer shall inspect the Goods on delivery. A consignment note signed by or on behalf of the Customer or Consignee shall, unless it is specifically marked to the contrary with a note specifying the alleged defect in the condition nature, quantity or weight of the Goods, be evidence of the condition and correctness of the declared condition, nature, quantity or weight of the Goods at the time they are received by the Customer or the Consignee. For the avoidance of doubt if the Customer of Consignee endorses the consignment note with the words “not examined”, or any similar wording, the consignment note shall not be deemed to be specifically marked to the contrary.
The Customer shall be solely responsible for and liable to pay to the Company on demand costs, damages and expenses incurred in respect of: any delay encountered by the Company, its servants or agents as a result of the Company, its servants or agents being prevented from collecting or delivering the Goods; Or for any frustrated or abortive journey in either case occasioned other than by the Company’s negligence.
(a) The Goods shall be deemed to have been delivered (unless carriage is terminated by the Customer or Consignee earlier) when the Company either delivers or attempts to deliver the Goods at the Consignee address within the customary hours of carriage in the district and/or the haulage industry generally. Any times given by the Company to the Customer or Consignee for delivery of the Goods shall be estimates only. Time shall not be of the essence of the Contract with respect to delivery of the Goods.
(b) If either:- (i) in the opinion of the Company no safe or adequate unloading facilities exist at the Consignee’s address; or (ii) the Company is requested to hold the Goods pending collection or delivery by the Customer or the Consignee; or (iii) the Goods are held by the Company pursuant to these Conditions pending payment by the Customer or the Consignee; the Company will in each case notify the Customer in writing of the reason for the failure to deliver the Goods and the Goods shall on the date of such notice be deemed to have been delivered.
12. UNCLAIMED GOODS
(a) In the event of any Goods remaining in the possession of the Company after deemed delivery pursuant to condition 11 the Company shall be entitled to charge for storage at such rates as the Company may from time to time determine and such storage charges shall be deemed to be part of the Contract Price.
(b) Should any Goods remain uncollected for a period of 28 days after the date of deemed delivery the Company shall be at liberty to dispose of the Goods in whatever manner it thinks fit and shall be under no duty to either the Customer or the Consignee to realise the best price for the Goods.
(c) The Company may at its sole discretion apply the proceeds of sale in discharging, firstly, all expenses incurred in the sale of the Goods and, secondly, all sums due to the Company pursuant to the Contract.
(d) After payment of all expenses incurred in the sale of the Goods and after discharge of sums due to the Company pursuant to the Contract the Company shall either: then remit to the Customer the net proceeds of sale (if any);or if following discharging of sums owed to the Company from the proceeds of sale realized pursuant to condition 12 (c), a balance of money remains outstanding to the Company, such sum shall be paid by the Customer on demand.
13. EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE
(a) The Company shall not be liable for any loss, misdelivery or damage to the Goods where such loss, misdelivery or damage has arisen from:- (i) any Force Majeure; (ii) an act or omission of the Customer, Consignee or owner of the Goods or the servants or agents of any of them; (iii) inherent liability to wastage in bulk or weight, latent defect, vice or natural deterioration of the Goods; (iv) insufficient or improper packing, labelling or addressing of the Goods (including omission of or incorrect statement of the postcode of the Consignee);or (v) the Consignee not taking or accepting delivery within a reasonable time.
(b) The Company shall not be liable to the Customer or the Consignee where there has been fraud on the part of the Customer, Consignee or owner of the Goods, or the servants or agents of any of them, in respect of the Goods.
(c) The Company shall not be liable for any loss or misdelivery of or damage to Goods contained in a container sealed by HM Customs & Excise or a container sealed by the Customer where in such cases the Company has no reasonable means of checking the nature, quantity, or packaging of the Goods, unless such loss, damage or misdelivery has been caused solely by the negligence of the Company, its servants or agents. For the avoidance of doubt, Goods carried by sealed containers are presumed to be of the nature and quantity as stated by the Customer on the consignment note.
(d) The Customer is responsible for and will fully and effectively indemnify and keep indemnified the Company, its servants or agents against any and all losses (including consequential losses) costs, claims, demands and liabilities (including interest, disbursements and all legal costs on an indemnity basis) incurred by the Company arising out of either (1) fraud on the part of the Customer, Consignee, owner of the Goods, or the servants or agents of any part of them, or (2) any inaccuracy or misdescription of the Goods on the consignment note by the Customer.
14. LIMITATIONS ON LIABILITY
(a) Except as otherwise provided in these Conditions, the liability of the Company in respect of loss or damage to the whole of a consignment of Goods shall in all circumstances be limited to the relevant amount per tonne as determined in accordance with the rate per tonne specified in the RHA Conditions. Liability per tonne is based on either the gross weight of the Goods as computed for the purposes of the price under condition 4 or, where no such computation has been made, to the actual gross weight of the consignment. Where the loss or damage is in respect of part only of the Goods the sum ascertained shall be in proportion with the actual value to which the damaged Goods bear to the actual value of the whole consignment.
(b) Nothing in this clause shall limit the Company’s liability below the sum of £30 in respect of any one consignment.
(c) The Company shall be entitled to require proof from the Customer of the value of the whole of the consignment as a condition precedent to making any payment to the Customer.
(d) Save as is expressly provided in these Conditions, no warranty, condition, description or representation on the part of the Company is either given or implied by these Conditions nor is to be taken to have been given or implied from anything said or written in negotiations between the parties or the representatives by or on behalf of the Company prior to the Contract. All statutory or other warranties, conditions, descriptions or representations express or implied as to the subject of the Contract are hereby expressly excluded to the fullest extent permitted by the law.
(e) Without prejudice to the generality of the preceding provisions of condition 15 it is specifically agreed that the Company will in no circumstances be liable: (i) for any indirect or consequential loss sustained by either the Customer or the Consignee as a result of any breach of contract by the Company; or (ii) for any Ioss occasioned to either the Customer or the Consignee arising out of any damage to or destruction of any property of any type on the premises of the Customer or the Consignee during the performance of the Contract howsoever occasioned.
(f) In the event of the Company being found liable for any loss or damage (notwithstanding the provisions of these Conditions) unless expressly provided the liability shall in no event exceed the Contract Price.
(g) Nothing in these Conditions shall restrict the liability of the Company for breach of contract by or negligence of the Company its servants or agents (1) which causes death or personal injury, or (2) where the Customer is a consumer, or (3) for any breach of contract which results in the Company being liable under Part II of the Consumer Protection Act 1987. (i) The Company’s liability shall in any event cease if the Customer or the Consignee shall not have paid in full any invoices from the Company by their due date.
15. STATUTORY REQUIREMENTS
Any liability for ensuring compliance with any requirement, statutory or otherwise or any other matter which may relate to or affect the Services rests exclusively on the Customer.
The Company reserves the right to sub contract the performance of the whole or part of the Contract and if so sub contracted, the Customer and sub-contractor shall be deemed to be subject to these Conditions which shall apply to the Customer and sub-contractor with all necessary changes.
No waiver of any breach of these Conditions shall be held to be a waiver of any other condition or any subsequent breach. The failure of the Company to enforce at any time any of these Conditions shall in no way be construed to be a waiver nor in any way affect the validity of these Conditions or any part of them or the right of the Company to enforce each and every provision of the Conditions.
Any notice shall be in writing and shall be sent guarantee delivery addressed in the case of a notice to the Company to its head office and in the case of a notice to the Customer to its last known place of business. Any notice sent by post shall be deemed to have been served on the day following the date on which it shall have been posted and proof of posting shall be sufficient evidence of service.
(a) If: the Customer makes default in or commits a breach of any of its obligations to the Company; any judgement is entered against the Customer or distress or execution is levied upon the Customer, its property or assets; the Customer makes or offers to make any arrangement or composition with its creditors or commit any act of bankruptcy; any petition or receiving order is presented or made against the Company; the Customer, being a limited company, has any resolution or petition to wind up the Company’s business passed or presented otherwise than for reconstruction or amalgamation; or a receiver of the Customer’s undertaking property or assets or any part of them is appointed then in any such case the Company shall have the right to immediately determine the Contract and any other contract then subsisting between the Company and the Customer and upon written notice of determination being posted to the Customer the Contract and any subsisting contract shall be deemed to have been determined.
(b) The rights of the Company to terminate the Contract given by condition 20(a) are without prejudice to any other right, remedy or claim (whether historic, actual or contingent) of the Company in respect of the breach concerned (if any) or any other breach.
No variations of these Conditions will be permitted unless authorised in writing by an authorised officer of the Company.
If the Company stores Goods on behalf of the Customer or the Consignee in its warehouses such warehousing is undertaken subject to the United Kingdom Warehousing Association Conditions of Contract, copies of which are available free of charge on request from the head office of the Company.
22. INTERNATIONAL TRANSPORT OF GOODS AND ANY OTHER SERVICES
The carriage or forwarding of goods where the point of despatch or point of delivery, or both, is outside the United Kingdom, and all related services, and any other services not covered by any of the foregoing paragraphs, are performed subject to the conditions set out in in Annex 3, which are based on the Standard Trading Conditions of the British International Freight Association.
Where both warehousing and carriage or forwarding services are performed, carriage or forwarding shall be deemed to end, and warehousing to commence, at the point where the goods are lifted off the vehicle at the warehouse; and warehousing shall be deemed to end, and carriage or forwarding to commence, at the point that the goods are placed on the vehicle. Temporary storage of the goods in the course of carriage or forwarding shall be considered to form part of the carriage or forwarding and shall not be treated as separate warehousing services.
24. ZERO RATED GOODS
The Customer will fully and effectively indemnify and keep indemnified the Company against any costs, claims, expenses, fines, penalties or other liability arising pursuant to section 30 of the Value Added Tax Act 1994 or any statutory modification or re enactment of that section in respect of the Customer’s failure to export zero rated goods or to comply with any condition in relation to zero rated goods intended to be exported.
Any dispute arising between the Company and the Customer in respect of any matter arising under the Contract shall, if the Company agrees, be referred to arbitration in conformity in all respects with the provisions of the Arbitration Act 1996 (or any statutory modification or re-enactment thereof for the time being in force).
26. PROPER LAW
These Conditions and the Contract shall be construed in all respects in accordance with English Law and the parties agree to submit to the sole jurisdiction of the English Courts. In the event that the Customer is domiciled in Scotland the Company shall have the option of litigating in the Scottish Courts.
Nothing in this Contract will create, or be deemed to create, a partnership or the relationship of principal and agent or employer and employee between the parties.
28. AMAZON REDIRECTION
The Customer agrees that the Company may accept instructions from Amazon to hold the Customers’ Goods during transit and/or re-direct the Customers’ Goods to an alternative destination at no additional cost to the Customer (“Alternative Instructions”). Amazon will be responsible for any such holding charges and/or re-direction charges. The Customer agrees not to hold the Company liable in the event that Goods are delivered late or are delivered to an alternative location, from that which was originally requested by the Customer, as a result of complying with any Alternative Instructions from Amazon.