1. In these Terms & Conditions, unless the context otherwise permits or requires, the following expressions shall have the following meanings:-
(a) “The Company” means Polar Speed Distribution Limited, the registered office of which is situated at 8 Chartmoor Road, Leighton Buzzard, Beds LU7 4WG.
(b) “The Client” means any person, firm or company requesting the Company to transport a Consignment and includes any employee agent or sub-contractor of the Client.
(c) “Collection Point” means the address at which any Consignment is to be collected or received by the Company.
(d) “Consignment” means any communication, parcel, package, case, pallet or other goods or items contained in one parcel, envelope or package, or any number of separate parcels, envelopes or packages sent pursuant to a request of the Client from any one Collection Point to any one Delivery Point. The Consignment may also be tendered to the Company for storage Services.
(e) “The Consignee” means any person, firm or company to whom the Company is requested to deliver a Consignment by the Client. The consignee may or may not be the same as the Client.
(f) “Contract” means the contract subject to these Terms & Conditions under which the Client will deliver the Consignment to the Consignee. In most cases this will be either the Customer Rate Agreement or the Service Level Agreement.
(g) “Delivery Point” means the address to which any Consignment is to be delivered by the Company or collected from the Company, including any alternative Delivery Point specified by the Client pursuant to Clause 7(1) below.
(h) “Dangerous goods” means any goods classified as dangerous goods by a statute or statutory regulation in force from time to time, that relates to the carriage of goods, and that presents a comparable hazard according to any relevant regulations.
(i) “Services” shall mean and logistics, transport or Storage of a Consignment provided by Company, its affiliates or subcontractors in accordance with this Terms and Conditions.
(j) “Storage” shall mean warehouse storage other than “temporary storage in the course of transit” which is the temporary storage of any shipment by the Company that is a necessary element of the conveyance of that shipment from the Collection Point to the Delivery Point including, but not limited to, overnight storage pending onward next day movement and temporary storage pending confirmation of customs clearance or receipt of required shipment documentation).
Acceptance Of Terms & Conditions
2. (1) Any business undertaken by the Company or any information, advice or Service supplied by the Company, whether charged or not, is undertaken or provided subject to these Terms & Conditions, which shall be the terms of any contract between the Company and the Client for delivery of Consignments.
(2) These Terms & Conditions, subject to and together with any variations and / or other agreements agreed by signed writing between authorized representatives of the Company and the Client under Clause 2(5), shall constitute the entire contract between the Company and the Client and shall override or supersede any previous agreement or arrangement between the Company and the Client (whether express or implied, written or oral) and, in particular, shall operate to the exclusion of any terms and conditions at any time imposed by the Client. On acceptance by the Company of any request for delivery of any Consignment, the Client shall be deemed to have accepted these Terms & Conditions.
(3) The Client acknowledges that it has not entered into the Contract relying upon any representation made by or on behalf of the Company and, without prejudice to the generality of the foregoing, the Client has not relied upon any correspondence, statement or sales literature issued by or on behalf of the Company.
(4) Nothing in Clause 2(3) shall limit or exclude any liability for fraud.
(5) No amendment to these Terms & Conditions shall take effect unless agreed to in writing by a duly authorised representative of the Company.
3. The Company is not a common carrier and will only provide Services subject to these Terms & Conditions. The Company reserves the right, at its absolute discretion, to:-
subcontract any part or parts of a delivery;
refuse to accept any Consignment or part thereof for delivery or Storage; or
deliver the Consignment by any available route.
4. Without prejudice to the provisions of Clause 3 above, the Client acknowledges that the Company is under no obligation to accept Dangerous goods or any Consignment containing Dangerous goods for delivery or Storage.
5. The Client hereby warrants that:-
the Consignment is properly described, packed and labeled for the Services and in compliance with applicable laws;
it has provided clear and accurate instructions and that all information relating to the Consignment that is appropriate for Company to know, including weight, descriptions and values. The Client will ensure that all information received is complete and accurate. The Client will, in good time, notify the Company in writing of any official or regulatory requirements affecting the Consignment and will provide all necessary documentation.
unless otherwise expressly agreed with Company, the Consignment does not constitute or contain Dangerous goods or any substance the possession, storage or delivery of which is a criminal offence or a breach of the provisions of any relevant statute, regulation or bye-law under the laws of any part of the United Kingdom or of any jurisdiction to or through which the Consignment is to be delivered or in which it may be stored; and
the Client has authority in respect of the Consignment to authorise collection and delivery by the Company from the Collection Point to the Delivery Point.
6. (1) (a) The Company shall use its reasonable endeavours to deliver the Consignment to the Delivery Point within the time specified by the Client, but time of delivery shall not be of the essence and the Company shall be under no liability in the event of failure to deliver within such time.
(b) The Company shall take all reasonable steps to obtain a receipt from the Consignee and such receipt shall be conclusive evidence of the date, time and place of delivery.
(2) In respect of any Consignment that is required to be kept within specified temperature limits or according to any other particular requirements whilst in transit, the Client shall inform the Company in writing, in advance of tendering the Consignment to the Company, of any such requirements, and the Client or the Consignee shall be responsible for satisfying itself as to the condition of the Consignment and its temperature at the time of its delivery and, if not satisfied, shall make a note thereof on the Company’s proof of delivery documentation.
7. (1) The Company shall make one attempt to deliver a Consignment to the Delivery Point within the delivery time specified by the Client. If the Consignment cannot be delivered (other than by reason of a default of the Company), the Company will have the option to (i) make a further attempt to deliver the Consignment to the Delivery Point, (ii) deliver the Consignment to any other Delivery Point specified by the Client, or (iii) return the Consignment to the Collection Point, in any event at the Client’s cost.
(2) If delivery does not take place under the provisions of Clause 7(1) other than by reason of any default of the Company, its employees, agents or sub-contractors, or if the Client does not specify any alternative Delivery Point within 24 hours of being requested to do so by the Company, the Client shall be liable to the Company for all Storage charges incurred by the Company between the date on which delivery was first attempted and the date on which delivery is made under the provisions of Clause 7(1) above or the date of sale of the Consignment under the provisions of Clause 7(3) below.
(3) If delivery does not take place under the provisions of Clause 7(1), the Company shall be entitled, without liability to the Client, to dispose of the Consignment or any part thereof at any time after giving the Client 7 days’ written notice of its intention to do so.
(4) The Company shall be under no obligation to deliver a Consignment or Consignments as a whole at any one time and shall be free in its absolute discretion to make more than one delivery.
8. The Company shall not be under any obligation to provide any plant, equipment, machinery, power or labour that may be required for loading or unloading the Consignment at the Collection Point or the Delivery Point
9. Any Consignment or part thereof requiring any special appliance or equipment for loading on to and/or unloading from any vehicle is accepted for carriage only on the condition that the Client has duly ascertained that such appliances are available at the Collection and Delivery Points and the Client shall be responsible for the provision and cost of such appliances or equipment.
10. Any assistance given by the Company beyond the usual act of collection or delivery (including without prejudice to the generality of the foregoing the provision of plant, machinery, equipment, power or labour for loading or unloading at the Collection or Delivery Points) shall be at the sole risk of the Client who will hold harmless and keep the Company indemnified against any damage, expense, loss costs, claims and demands (including, without limitation, damage to the Consignment or to any property of the Client, the Company, the Consignee or any third party, whether or not arising out of the negligence of the Company, its employees, agents or sub-contractors) arising directly or indirectly from the provision of such assistance.
Liability For Loss & Damage
11. (1) The Company shall not be liable for any loss, mis-delivery, non-delivery or damage to any Consignment unless, subject to the provisions of Clauses 6, 10 and 12, such loss, mis-delivery, non-delivery or damage has arisen from any wilful default, negligent act or omission by the Company, its employees, agents or sub-contractors.
(2) The Client shall ensure that each Consignment is tendered to the Company in good condition and inspected thoroughly for defects or damage upon arrival at the Delivery Point.
(3) All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
Limitation Of Liability
12. (1) Subject to Clauses 6, 10 and 11, the liability of the Company to the Client arising from any loss or damage to any Consignment, or for the non-delivery or mis-delivery thereof, shall be limited to the reasonable market value of the Consignment, whether such loss or damage, non-delivery or mis-delivery arises by reason of breach of contract or negligence on the part of the Company or its employees, agents or sub-contractor or otherwise howsoever. Provided further that:-
(i) the liability of the Company shall in any case be limited to £250 for any one Consignment, except where the aggregate amount invoiced (net of VAT) to the Client by the Company for the carriage of goods in the 12-month period preceding the date on which the relevant Consignment is delivered is less than £10,000, in which event such liability shall be limited to £50 for that Consignment. The Client is obliged to purchase and maintain an insurance policy for (and shall be solely liable under the Contract for) any loss or damage to a Consignment in excess of £250 or that £50 individual limit. Nor shall the Company be liable if the Client fails to make a successful claim under any such policy because it has breached any of its terms.
(ii) in any case where the Company provides Storage Services, the liability of the Company is limited in accordance with the FTA Conditions for the storage of Goods in the United Kingdom (2007) as amended from time to time.
(iii) the Company shall not in any case be liable for any indirect, consequential or economic loss or damage incurred by the Client or any third party, including loss under current and future contracts, loss of business or goodwill, administrative costs or disaster recovery costs.
(iv) the Company shall not be liable in respect of any loss or damage to any Consignment if the Consignment is not properly packed or prepared for transit in cases, pallets, parcels or packages suitable for transit of goods, items or matters of the nature comprising the Consignment or part thereof.
(v) the Company shall be entitled to receive written evidence to its reasonable satisfaction of the value of the Consignment damaged or lost, and the nature, extent and cause of the damage or loss.
vi. the Company shall not be liable for damage to or loss, non-delivery or mis-delivery of any cash, notes, deeds, tickets, traveller cheques, jewellery, watches, precious metals, works of art or similar valuable articles.
(vii) the Company shall not be liable for any loss or damage suffered by reason of:-
(a) the failure of the Client to properly address the Consignment;
(b) delivery of the Consignment in good faith at the Delivery Point to a person claiming to be the Consignee or his/her/its employee agent or sub-contractor;
(c) any breach of the warranties given by the Client in Clause 5 above;
(d) the inability of the Company to perform its obligations due to any circumstances beyond the reasonable control of the Company including (without limitation) strikes, lockouts or other industrial disputes (whether involving the workforce of the Company or any other party), transportation delays, accidents, vehicle breakdowns, weather conditions, fire, flood, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction or default of suppliers or sub-contractors.
(viii) the Company shall not be liable for any loss of or damage to any Consignment unless the Client has complied fully with Clause 11(2) and a claim is made upon the Company in writing:-
(a) within seven days after completion of delivery; or
(b) in the case of loss, non-delivery or mis-delivery, within fourteen days of acceptance by the Company of the Consignment concerned,
and in any event such claim must be accompanied in writing by the evidence specified in Clause 12(1)(v).
(ix) the Company shall not be liable for any loss of, or damage to or deterioration or perishing of, goods of a perishable or fragile nature except where such damage, deterioration or perishing occurs by reason of any default or neglect on the part of the Company, its employees or agents or sub-contractors (and subject always to the provisions of Clauses 6 and the other limitations in this clause 12) nor for reasonable wear and tear incurred during transit or storage.
(x) the Company shall not be liable in respect of any failure to maintain any Consignment at any required temperature or within any required temperature limits or any other damage to or deterioration to the Consignment caused by any failure by the Client to comply fully with the requirements of Clause 6(2).
(xi) the Company shall not be liable for any damage or deterioration to the Consignment caused by its treatment, use, misuse, storage or packaging before it comes within the control of the Company.
(xii) the limit referred to in Clause 12(1)(i) shall only apply to loss or damage occuring within the geographical limits of Great Britain, Ireland, the Channel Islands and the Isle of Man, including journeys within these areas. For deliveries outside these areas, liability shall be restricted to the amount recoverable by the Company and actually recovered (whether under any convention relating to international carriage of goods from time to time in force or otherwise) from the international agent or carrier, chosen at the Company’s absolute discretion, to deliver the Consignment.
(2) Nothing in these Terms & Conditions limits or excludes the liability of: (a) either party for death or personal injury resulting from its negligence or damage or liability as a result of its fraud or fraudulent misrepresentation; or (b) the Client for a breach of Clause 22.
(3) The Company and the Client have freely and openly negotiated the Contract in the knowledge that the liability of the Company is to be limited in accordance with these Terms & Conditions and to the extent permitted by law and the price charged by the Company would be payable but for such limitation. It is intended that the Terms & Conditions should be reasonable as between the Company and the Client having regard to the nature of the Contract. If, however, at any time any of them are unenforceable or void at law, they shall not adversely prejudice the remainder of them or the Contract and they shall be deemed to be excluded from these Terms & Conditions, where possible to be replaced by such other enforceable and valid terms or conditions as shall be as near as may be the original in both form and effect.
13. Client will indemnify the Company against any liability or expense or third party claim which arises in connection with Client’s act, default or omission or that of the Consignee or any other party claiming an interest in the Consignment.
14. (1) The Client shall in respect of delivery of any Consignment pay the Company’s charges in accordance with the Company’s current tariff of charges within thirty (30) days from the date of the Company’s invoice thereof. The Company reserves its right to increase its charges at any time by notifying the Client in writing.
(2) The Company may at its absolute discretion withdraw credit facilities at any time.
(3) No quotation or estimate of charges given by the Company shall bind the Company unless expressed in writing to be a fixed quotation with a date to which such fixed quotation shall be valid, in which case the quotation or estimate must be accepted by the Client and delivery must take place prior to that date.
(4) Duties and Taxes Client is responsible for all duties, taxes, deposits or other charges made by any authority in connection with the shipment, and for any payments, fines, expenses or losses Company incurs in connection with the Consignment.
(5) Collect Charges If Company accepts a Consignment on instructions to collect carriage charges, duty or any other money from the Consignee or anyone else, Client remains responsible for payment if they are not paid by Consignee (or other person) immediately when due. Company shall not be liable for any failure to collect any such payment.
15. Unless paid within thirty days of the date of invoice from the Company, the Company shall be entitled to interest on any unpaid sum at the rate of 8% per annum in excess of Barclays Base Rate or, if lower, the maximum rate as is allowed by law, calculated from the date of any such unpaid invoice or invoices, until the payment of such sum, and calculated on a daily basis both before and after judgment.
16. If any sum due to the Client for the delivery of a Consignment has not been paid in full by its due date, the Company may withhold delivery of that Consignment or any other of Client’s Consignments until payment in full, including payment of all interest accrued under Clause 15.
17. For the purpose of these Terms & Conditions, the price stated in the current tariff of charges of the Company shall be deemed to be a basic price and any other expenses incurred by the Company on the Client’s behalf shall be added to such sum with VAT (where applicable) at the appropriate rate.
18. All monies due to the Company shall be payable in Sterling in England.
19. The Company shall have a lien over any or all Consignments in respect of any unpaid invoices whether relating to a particular Consignment or otherwise and the Client appoints the Company its attorney and agent to sell or otherwise dispose of the same and to apply the net sale proceeds in reduction or extinguishment of the Client’s liability to the Company.
20 No payments due to the Company from the Client shall be withheld by the Client in respect of any claim or alleged claim by the Client or the Consignee against the Company howsoever arising and whether by way of set-off, counterclaim or otherwise.
21. The Client agrees to idemnify the Company for all costs and expenses, including legal fees and expenses on a solicitor and own client basis, in respect of the recovery of any outstanding amounts due under the Contract.
Data Protection and Confidentiality
22. (1) In this Clause, "Data Protection Laws" means: (a) Regulation (EU) 2016/679 ("GDPR") and any other applicable law; (b) the Data Protection Act 2018 (UK); and (c) the Privacy and Electronic Communications (EC Directive) Regulations 2003 ("PECR"), together with any other applicable legislation and any associated regulations or instruments and any other data protection laws, regulations, regulatory requirements, instruments, guidance and codes of practice, all of which as amended or replaced from time to time.
(2) In the Contract, the terms "Personal Data", "Data Subject", "Process", and "Data Controller" are as defined in the Data Protection Laws.
(4) to enable the Company to fulfil its information obligations towards Data Subjects under Data Protection Laws, the Client may be required to provide the Company's specified data privacy notice (as provided by the Company to Client from time to time) to Data Subjects who are Consignees or the relevant Data Subjects of Consignees (as applicable), prior to delivery of the relevant Consignment to the Delivery Point (where applicable).
23. Unless Company and Client have agreed otherwise in a separate written agreement (in which case the terms of that agreement shall prevail), any information relating to Company and Client’s businesses, including financial or other affairs, and information relating to Company or Client’s customers' businesses, including financial or other affairs exchanged between us, in whatever form, is to be treated as confidential and proprietary (“Confidential Information”). The Parties agree to maintain the confidentiality of that information and to ensure that it will not be used for any purpose other than the performance of obligations under these Terms and Conditions. Exceptions to this clause are information that: (a) is already known by either party or its Representatives (any directors, officers, employees, subcontractors, agents, affiliates or professional advisers from time to time); (b) is in the public domain or enters the public domain through no wrongful act or omission by each party, or each party’s respective Representatives; (c) is obtained by each party, or each party’s Representatives on a non-confidential basis from a third party who is not prohibited from sharing information under confidentiality obligations; or (d) is independently developed by a party without reference to or use of the other party’s Confidential Information.
24. Nothing in the Contract should be construed as conferring rights on any third party, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise and no third party shall be entitled to enforce the performance of any obligations under the Contract.
25. The Client shall not, without the prior written consent of the Company, assign, transfer or sub-contract the benefit or the burden of the Contract or any part thereof. The Company may assign, transfer or sub-contract its rights and obligations under the Contract.
26. Notices under the Contract are to be served in writing and may be served by fax or first class pre-paid post to the recipient party’s address as it appears in the Contract. Notices served by fax shall be deemed received immediately following transmission (subject to issue of a valid transmission slip) and notices served by post shall be deemed to have been received two business days after despatch (in the case of UK post) and six business days after despatch (in the case of air mail).
Law & Jurisdiction
27. These Terms & Conditions shall be subject to the laws of England & Wales and, for the benefit of the Company, the Client hereby submits to the exclusive jurisdiction of the Courts of England and Wales in connection with any dispute arising out of or in connection with the Contract.
Polar Speed Distribution Limited is a wholly owned subsidiary of UPS limited