- THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 9 (LIMITATION OF LIABILITY).
INTERPRETATION
- The following definitions and rules of interpretation apply in these Conditions.
- Definitions:
- Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
- Carrier: a delivery partner that will collect the Letters or Parcels from PNP and deliver them to the Customer’s recipient.
- Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 6 (Charges and payment).
- Commencement Date: has the meaning given in clause 2.2.
- Commodity Code: the product specific code used to classify the goods comprised in any Consignment shipped internationally.
- Conditions: these terms and conditions as amended from time to time in accordance with clause 14.5.
- Consignment: any one or more Parcel(s) or Letter(s), sent by the Customer from an address in the UK to another address in the UK or to an address not in the UK.
- Contract: the contract between PNP and the Customer for the supply of Services in accordance with these Conditions.
- Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
- Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical measures: as defined in the Data Protection Legislation.
- Customer: the person or firm who purchases Services from PNP.
- Customer Default: has the meaning set out in clause 5.2.
- Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications);
- Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
- Letter: a letter (normally contained in an envelope) sent under any of the Services.
- Order: the placing of an order for Services by the Customer through the PCS or via telephone or email or any other method that PNP is willing to accept an order through.
- Parcel: a package (which includes its contents) sent under any of the Services.
- PCS: PNP’s postal control system.
- PNP: POST ‘N’ PACKAGES LIMITED a company registered in England with company registration 06693460 and whose registered office is at Unit 5 Swan Lane Industrial Park, Swan Lane, West Bromwich, West Midlands, England, B70 0NY
- Prohibited Goods: items as identified or defined as, prohibited, restricted, dangerous or hazardous by regulatory bodies governing transport by road, rail, sea or air in any legislation, regulations or guidelines which are unlawful to be carried or set out by the Carrier, all as updated from time to time.
- Services: the operation and multi-carrier service solution provided by PNP, which allows Customer Letters and Parcels to be delivered within the UK or internationally using one of PNP’s partner Carriers.
- UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
- Interpretation:
- A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
- Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
- A reference to writing or written includes fax and email.
BASIS OF CONTRACT
- The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
- The Order shall only be deemed to be accepted when PNP issues written acceptance of the Order or when such Order is accepted in the PCS at which point and on which date the Contract shall come into existence (Commencement Date).
- Each Order once accepted shall form a separate Contract.
- These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
- The Customer shall be deemed to have notice of and accepts these Conditions if and as soon as an Order is placed and accepted by PNP.
- The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of PNP which is not set out in the Contract.
- Any quotation given by PNP shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.
SUPPLY OF SERVICES
- PNP shall supply the Services to the Customer with reasonable care and skill.
- Subject to the Customer's compliance at all times with these Conditions, PNP shall carry or receive Consignments agreed by the Company and the Customer, or store Consignments in a building occupied by PNP awaiting collection by a Carrier, or to provide other services as agreed by PNP and the Customer.
- PNP will only carry Consignments for the purposes of collection and storage whilst awaiting onward carriage by the Carrier which will be arranged by PNP as part of the Services. PNP is not a common carrier which means that it may refuse to carry the Customer's Consignment at its discretion. PNP will accept Consignments only on these Conditions.
- If the Conditions of any Contract are not met, the Company reserves the right to terminate such Contract immediately.
- PNP shall use all reasonable endeavours to meet any performance dates specified in the relevant Service selected, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services. Further, the Customer acknowledges that delivery times are entirely dependent upon the Carrier and the particular service the Customer has selected from the particular Carrier and PNP shall not be liable for any delays in delivery once any Consignment has been collected by the Carrier.
- PNP reserves the right to amend any Service if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services.
- If the Customer wishes to make a change to the Services, the request must be made available to PNP by email only. PNP will then let the Customer know if the change is possible. If it is possible, PNP will let the Customer know about any changes to the Charges for the Service, the timing of supply or anything else which would be necessary as a result of the Customers requested change and ask the Customer to confirm whether the Customer wishes to go ahead with the change. If PNP cannot make the change or the consequences of making the change are unacceptable to the Customer, the Customer may want to end the Contract.
CONDITIONS WITH CARRIERS
- PNP is not a Carrier for these purposes and will not be undertaking delivery services to the Customer’s end customer or recipient.
- PNP has a contractual arrangement with each of the Carriers in order to provide the Services who will ultimately deliver the Letters and Parcels.
- PNP is accordingly subject to and bound by the conditions of carriage issued by each Carrier including but not limited to:
- their compensation and insurance limits;
- their stated transit times; and
- their general conditions of carriage, full details of which are available from the relevant Carrier.
- By accepting these Conditions, the Customer also agrees to be bound by the Carriers conditions and the Customer acknowledges and agrees that the conditions of carriage issued by each Carrier from time to time shall form part of the Contract. For the avoidance of doubt, in the event of conflict between these Conditions and the conditions of carriage of any Carrier, these Conditions shall take precedence as between the Customer and PNP.
CUSTOMER'S OBLIGATIONS
- The Customer shall:
- ensure that the terms of the Order and any information it provides in the PCS or otherwise are complete and accurate;
- co-operate with PNP in all matters relating to the Services;
- provide PNP with such information and materials as PNP may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
- if the Customer has purchased Services to store Consignments awaiting collection by a Carrier, provide any necessary licences and permissions required to allow any Carrier to collect Consignments from any location specified by the Customer;
- where the Customer purchases Services for international shipping of Consignments, be responsible for providing the accurate Commodity Code for each Consignment, and provide any and all necessary documentation required for any Customs clearance for the Consignment, including but not limited to accurate commercial invoices;
- where the Customer purchases Services for international shipping of Consignments, ensure that any Consignment is accompanied by all documentation, including without limitation, invoices (which must state full value, quantity of goods and full description of goods) and packing lists;
- where the Customer purchases Services for international shipping of Consignments, ensure that the Consignment is accompanied by any other documentation as required by the customs authorities of the country of destination;
- comply with all applicable laws, including health and safety laws;
- comply with the Mandatory Policies;
- comply with the Customer’s internal policies (if any) that apply to the performance of the Services;
- obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
- ensure that any Consignment provided to PNP complies with any dimension and/or weight limits that may be applicable to the Services at that time;
- pack and label the Consignment in a manner appropriate for transit, ensuring that such Consignment will arrive at its end destination in good condition and that such Consignment does not contain any Prohibited Goods;
- where the Customer purchases Services for the purpose of the carriage and delivery of any Consignment, ensure that such Consignment does not contain any Prohibited Goods;
- ensure that any and all necessary licences and/or permissions have been obtained in order to allow any Consignment to be lawfully transported to the Customer’s end customer or recipient;
- keep all documents, operating manuals, software and other materials and any other items provided by PNP (PNP Materials) at the Customer’s premises in safe custody at its own risk, maintain PNP Materials in good condition until returned to PNP, and not dispose of or use PNP Materials other than in accordance with PNP’s written instructions or authorisation;
- comply with any additional obligations as set out in the relevant Service.
- If PNP's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
- without limiting or affecting any other right or remedy available to it, PNP shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays PNP’s performance of any of its obligations;
- PNP shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from PNP’s failure or delay to perform any of its obligations as set out in this clause 5.2; and
- the Customer shall reimburse PNP on written demand for any costs or losses sustained or incurred by PNP arising directly or indirectly from the Customer Default.
- The Customer shall:
CHARGES AND PAYMENT
- The Charges for the Services shall be calculated on a volume and weight basis of the Consignment and the Services selected by the Customer.
- PNP shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom PNP engages in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by PNP for the performance of the Services, and for the cost of any materials.
- PNP reserves the right to increase the Charges for the Services, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Services to PNP that is due to:
- any factor beyond the control of PNP (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
- any request by the Customer to change the delivery date(s), quantities or types of Services ordered; or
- any delay caused by any instructions of the Customer in respect of the Services or failure of the Customer to give PNP adequate or accurate information or instructions in respect of the Services.
- In respect of Orders, unless otherwise agreed between PNP and the Customer, PNP shall invoice the Customer on or at any time after completion of delivery of the Services.
- The Customer shall pay each invoice submitted by PNP:
- within 30 days of the date of the invoice or in accordance with any credit terms agreed by PNP and confirmed in writing to the Customer; and
- in full and in cleared funds to a bank account nominated in writing by PNP, and
- time for payment shall be of the essence of the Contract.
- If the Customer fails to make a payment due to PNP under the Contract by the due date, then, without limiting PNP's remedies under clause 10 (Termination), 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 6.6 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%.
- All amounts due under the Contract 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).
INTELLECTUAL PROPERTY RIGHTS
- All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by PNP.
- PNP grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free, licence during the term of the Contract to copy the PNP Materials (excluding materials provided by the Customer) for the purpose of receiving and using the Services and the PNP Materials in the Customer’s business.
- The Customer shall not sub-license, assign or otherwise transfer the rights granted in clause 7.2.
- The Customer grants PNP a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Customer to PNP for the term of the Contract for the purpose of providing the Services to the Customer.
DATA PROTECTION AND DATA PROCESSING
- Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 8 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.
- The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the controller and PNP is the processor.
- Without prejudice to the generality of clause 8.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to PNP for the duration and purposes of the Contract.
- Without prejudice to the generality of clause 8.1, PNP shall, in
relation to any personal data processed in connection with the performance by PNP of its obligations under the Contract:
- process that personal data only on the documented written instructions of the Customer unless PNP is required by Applicable Laws to otherwise process that personal data. Where PNP is relying on Applicable Laws as the basis for processing personal data, PNP shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit PNP from so notifying the Customer;
- ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
- ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
- not transfer any personal data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
- the Customer or PNP has provided appropriate safeguards in relation to the transfer;
- the data subject has enforceable rights and effective legal remedies;
- PNP complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
- PNP complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;
- assist the Customer, at the Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
- notify the Customer without undue delay on becoming aware of a personal data breach;
- at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the Contract unless required by Applicable Law to store the personal data; and
- maintain complete and accurate records and information to demonstrate its compliance with this clause 8 and allow for audits by the Customer or the Customer’s designated auditor and immediately inform the Customer if, in the opinion of PNP, an instruction infringes the Data Protection Legislation.
- Either party may, at any time on not less than 30 days’ notice, revise this clause 8 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).
LIMITATION OF LIABILITY: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
- Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
- death or personal injury caused by negligence;
- fraud or fraudulent misrepresentation;
- breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
- breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
- defective products under the Consumer Protection Act 1987.
- Subject to clause 9.1, PNP shall not be liable whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract (including any losses that may result from PNP's deliberate personal repudiatory breach).
- Subject to clause 9.1, PNP's total liability to the Customer for all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall be limited to £50,000.
- The terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
- This clause 9 shall survive termination of the Contract.
- Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
TERMINATION
- Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party 30 days’ written notice.
- Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
- the other party commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
- the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
- the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
- the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
- Without affecting any other right or remedy available to it, PNP may terminate the Contract with immediate effect by giving written notice to the Customer if:
- the Customer fails to pay any amount due under the Contract on the due date for payment; or
- there is a change of control of the Customer.
- Without affecting any other right or remedy available to it, PNP may suspend the supply of Services under the Contract or any other contract between the Customer and PNP if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 10.2(b) to clause 10.2(d), or PNP reasonably believes that the Customer is about to become subject to any of them.
CONSEQUENCES OF TERMINATION
- On termination of the Contract:
- the Customer shall immediately pay to PNP all of PNP's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, PNP shall submit an invoice, which shall be payable by the Customer immediately on receipt;
- the Customer shall return all of PNP Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then PNP may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.
- Termination or expiry of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
- Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
- On termination of the Contract:
GENERAL
- Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
- Assignment and other dealings.
- PNP may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
- The Customer shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of PNP.
- Confidentiality.
- Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 12.3(b).
- Each party may disclose the other party's confidential information:
- to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 12.3; and
- as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
- Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.
- Entire agreement.
- This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
- Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract.
- Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
- Nothing in this clause shall limit or exclude any liability for fraud.
- Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
- Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
- Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
- Notices.
- Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
- 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
- sent by email to the address specified in the PCS.
- Any notice shall be deemed to have been received:
- if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
- 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 at the time recorded by the delivery service.
- if sent by email, at 9.00 am on the next Business Day after transmission.
- 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.
- Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
- Third party rights.
- Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
- The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
- Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
- Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.