Terms & Conditions - Distribution

GENERAL CONDITIONS OF DISTRIBUTION

 

In these General Conditions:

“Shipper”                      means DigiHaul’s relevant customer to whom the Services are provided under the Agreement.

“DigiHaul”                    means DigiHaul Limited.

“Products”                    means the Shipper’s products for which the Services are being provided by DigiHaul under these General Conditions.

“Services”                     means transport and ancillary services to be provided to Shipper by DigiHaul and agreed in writing prior to the commencement of the provision of the Services.

  1. Payment

1.1    For the provision of the Services DigiHaul will charge Shipper the rates and charges which shall be agreed by Shipper and DigiHaul prior to the commencement of the provision of the Services (“Charges”).

1.2    Invoices for DigiHaul’s Charges will be submitted on a transactional basis after the day in which the Services are provided, and we will provide such detail and backup as may reasonably be agreed.

1.3    Invoices will be paid in cleared funds in DigiHaul’s bank account by the Shipper within 30 days of invoice date.

1.4    All charges and/or payments referred to in these General Conditions are exclusive of value added tax and any other tax, duty or fee imposed from time to time by any government or other authority and are subject to the addition of value added tax and such other tax, duty, fee or charges at the appropriate rate.

1.5   If any sum payable under these General Conditions is not paid on the due date for payment, save where such sum has been disputed in writing, the party in default shall pay to the other interest on such sum at 3% over the base lending rate from time to time of HSBC Bank PLC from the due date until payment (whether before or after judgement), such interest to accrue on a daily basis provided that this right shall not prejudice any other right or remedy in respect of any such sum.

1.6    All payments to be made by Shipper to DigiHaul under these General Conditions shall be made in full without any set-off, restriction or condition and without any deduction for or on account of any counterclaim.

1.7    DigiHaul shall be entitled at any time to suspend the provision of all or any part of the Services if at any time any sums due from Shipper to DigiHaul, which have not been disputed in writing, shall not have been paid in accordance with these General Conditions or if DigiHaul shall reasonably form the view that Shipper is or is likely to become unable to pay its debts when due.

1.8    In the event that during the term of these General Conditions there is a material change to Shipper’s credit rating or in DigiHaul’s reasonable opinion the customer is unable to pay its debts when due then DigiHaul reserves the right to: (i) vary the invoicing terms; (ii) vary the payment terms.

  1. Products

2.1    Shipper shall procure that the Products are securely and correctly packaged, that such packaging complies with all applicable laws, rules and regulations and is in such a state that it will cause no death or personal injury to any person or damage or loss to any property or Products in the course of the distribution of the Products. Shipper shall be liable for and indemnify DigiHaul from and against all losses, claims, damages, costs and expenses arising from any loss injury or damage to any person or property which results from the inherent state or condition of the Products.

2.2    Shipper warrants to DigiHaul that,

2.2.1     save as expressly set out in the Shipment Order, there are no special requirements for the distribution of the Products (whether as to temperature, humidity or otherwise) and accordingly DigiHaul shall have no liability in the event of any deterioration, loss or damage to any Products arising from any such requirement not so set out in these General Conditions. If Shipper shall, after the date of these General Conditions, request that any such special requirements for distribution are introduced it shall be responsible for all the costs and expenses incurred by DigiHaul (whether of a capital or recurring nature) in complying with such requirements in such manner as it thinks fit.

2.2.2     it is either the owner of the Products or the authorised representative of the owner.

2.2.3     the description and particulars of any Product and all information provided by Shipper in relation to any Product and its intended use is full and accurate.

2.2.4     all applicable customs, import, export and other laws and regulations which apply to any Products have been complied with.

2.2.5     the Products do not contain any prohibited commodities, nor any item which cannot be carried, stored or handled safely or legally.  Such items include but are not limited to: animals, bullion, currency, bearer form negotiable instruments, precious metals and stones, firearms, parts thereof and ammunition, human remains, pornography, counterfeit goods and illegal narcotics/drugs;

2.2.6     to the best of Shipper’s knowledge, neither the receipt nor the delivery of the Products will expose Company or its employees, servants, agents, insurers or reinsurers to any sanction, prohibition or penalty (or any risk of sanction, prohibition or penalty) whatsoever imposed by any state, country, international governmental organisation or other relevant authority.

2.3    Notwithstanding any other provision of these General Conditions DigiHaul shall have no obligation to distribute and/or store any Dangerous Products unless it agrees otherwise in writing.  If DigiHaul so agrees Shipper shall be responsible for ensuring that for all Dangerous Products DigiHaul has received precise and correct identification of the substances in advance and Shipper shall ensure that all Dangerous Products are presented, packaged and labelled in strict accordance with all statutory requirements from time to time.  DigiHaul reserves the right to impose special conditions regarding any Products which in its opinion are in any way hazardous, dangerous or likely to be detrimental to the safe carriage or handling of other merchandise.  For the purposes of this condition “Dangerous Products” shall mean any products or materials used in the manufacture or packaging of the Products defined as being a dangerous substance under all laws and regulations applicable to the Services and the Products from time to time

  1. Confidentiality

DigiHaul and Shipper mutually undertake and agree with the other at all times hereafter to keep all information which is of a confidential or secret nature including without limitation information relating to forecasts, prices, discounts, handling costs, sales statistics, markets, inventory information, customers, personnel and technical operational and administrative systems (the “Confidential Information”) of the other and the other’s customers which they may learn in connection with the performance of these General Conditions in strict confidence and secrecy and not to use or disclose the Confidential Information of the other or the other’s customers to any other person firm or company outside DigiHaul’s or Shipper’s group of companies and their respective professional advisers except only as may be necessary and bona fide in connection with the performance of its obligations under these General Conditions provided that where any part of the Confidential Information is already or becomes commonly known in the trade except by a breach hereof or is required to be disclosed by any law or court order then the foregoing obligations of confidentiality in respect of such part of the Confidential Information shall cease to apply.

  1. Announcements

The parties to these General Conditions agree that, unless required by law or the regulations of a recognised stock exchange to do so, neither of them will make any public announcement to the public in connection with the contents of these General Conditions without first obtaining the agreement of the other party as to the text and method of such announcement (such consent not to be unreasonably withheld or delayed).

  1. Insurance & Liability for loss and damage to Products

5.1    Insofar as the CMR or any similar mandatory legislation is compulsorily applicable to the Services, the Carrier’s liability shall be governed by the CMR.

5.2    Subject to Condition 5.1 and the limitations and exclusions set out in these General Conditions, DigiHaul shall be liable for Products lost or damaged save where such loss or damage arises as a result of the action or default of Shipper, its customers and suppliers or Force majeure or events outside of DigiHaul’s reasonable control.

5.3    Shipper shall take out and maintain at its own expense a policy or policies of insurance with a reputable insurer in respect of destruction or loss of or damage to the Products to their full value on an all risks basis whilst in the custody of DigiHaul.

5.4    Shipper shall reimburse DigiHaul for the cost of any claims to the extent that such claims are in excess of DigiHaul’s liability to Shipper under these General Conditions of Distribution.

5.5    DigiHaul shall have no liability for any loss or destruction of or damage to Products for which it would otherwise be liable under these General Conditions unless it is advised in writing of the same on delivery or, in the case of non-delivery, on the due date of delivery.

5.6    Delivery of any Products into the custody of DigiHaul shall take place when the Products are loaded onto DigiHaul’s vehicles.  Delivery of Products out of the custody of DigiHaul shall take place when the Products are unloaded from the delivery vehicle at Shipper’s delivery destination.  DigiHaul shall have no liability for any destruction or loss of or damage to Products which occurs when the same are not in the custody of DigiHaul even if caused by negligence)

5.7    For the purpose of Condition 5.2 the value of the relevant Products shall be the lesser of: –

5.7.1        the net invoice price (excluding VAT) to Shipper or the manufacturing cost (excluding VAT) incurred by Shipper for such goods (as the case may be) (or in the case of damaged Products, the reduction in value); and

5.7.2        £1,300 per tonne.

5.8    Title in all Products whilst in the Services, shall as between DigiHaul and Shipper, remain with Shipper. Shipper warrants that it will have the free and unencumbered right to authorise and allow DigiHaul to deliver Products in accordance with the terms of these General Conditions.

5.9    Save as otherwise agreed in writing between the parties DigiHaul and Shipper shall each be responsible for insuring its own assets and shall take all risk in relation to the same.

  1. Assignment

Neither DigiHaul nor Shipper shall be entitled to assign the benefit or delegate the burden of any part of these General Conditions without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed.

  1. Force Majeure

7.1    Neither party to these General Conditions shall be deemed to be in breach of these General Conditions or otherwise liable to the other in any manner whatsoever for any failure, partial failure or delay in performing its obligations under these General Conditions (other than breach of an obligation to make payment of any sums due under these General Conditions) to the extent that the same is caused by Force Majeure.

7.2    For the purposes of these General Conditions “Force Majeure” means, in relation to either party, any circumstances beyond the reasonable control of that party including, without limitation, acts of God, compliance with any law, order, rule or regulation of any governmental or other authority, acts of any governmental or super-national authority, war or national emergency, riots, civil commotion, fire, explosion, flood, severe weather conditions, pandemic, epidemic, lock-outs, strikes and other industrial disputes (in each case, whether or not relating to that party’s workforce) shortages of labour, materials and services and inability or delay in obtaining supplies.

7.3    If DigiHaul incurs any additional costs in mitigating the effects of the period of Force Majeure Shipper shall pay the same to DigiHaul.

7.4    If the Force Majeure event prevents, hinders, or delays either party’s performance of its obligations under these General Conditions for a continuous period of at least 30 days, either party shall have the right to terminate these General Conditions upon 7 days’ written notice.

7.5    The parties acknowledge that although the pandemic disease nCoV2019 (“COVID-19”) is already present, the occurrence or any re-occurrence of COVID-19 shall not prejudice the provisions of this condition 7 of the General Conditions and either party’s right to declare an event of Force Majeure.

  1. Subcontracting

DigiHaul shall sub-contract its rights and obligations under these General Conditions and shall use third party vehicles to provide the Services. DigiHaul enters into these General Conditions on behalf of itself and its agents and subcontractors, all of whom shall be entitled to the benefit of these General Conditions and shall have no liability to Shipper in respect of the Services, if any, separately from that of DigiHaul under these General Conditions.

  1. Safe Working

Shipper shall ensure that all of its premises and those of its suppliers, customers and agents which any Employee is to enter in connection with the performance of the Services is safe for the performance of those Services. Notwithstanding any other provision of these General Conditions, if DigiHaul considers that any such premises is unsafe to perform Services, then DigiHaul may inform Shipper and may refuse to enter such premises or perform such part of the Services and Shipper shall indemnify and keep indemnified DigiHaul from any claim made by any Employee or any sub-contractor or any employee of any sub-contractor which arises in connection with any premises of Shipper, its suppliers, customers or agents being unsafe or the performance of any part of the Services on any such premises being unsafe and any losses, damages, costs, expenses and liabilities incurred in connection with any such claim.

  1. Termination

10.1  If either DigiHaul or Shipper shall commit a persistent material adverse breach of its obligations under these General Conditions and shall not remedy such breach (or where such breach is not capable of remedy shall not have taken all reasonable steps to prevent its recurrence) within 30 days of written notice given to it by the other specifying such breach and requiring its remedy then the other may terminate these General Conditions by giving notice in writing to the party so in breach.  For the purposes of these General Conditions a breach shall be deemed to be capable of remedy if it can be remedied in all respects other than time of performance.

10.2  In addition, either Shipper or DigiHaul shall be entitled to terminate these General Conditions forthwith by notice in writing to the other if the other becomes or seeks to become the subject of a voluntary arrangement under section 1 Insolvency Act 1986; or is unable to pay its debts within the meaning of section 123 Insolvency Act 1986; or the giving of a notice of intention to appoint an administrator, or a provisional liquidator, liquidator, administrative receiver, administrator, trustee or other similar officer, or has a receiver, manager, administrator or administrative receiver appointed over all or any parts of its undertaking, assets or income; or has passed a resolution for its winding up; or has a petition presented to any court for its winding-up or for an administration order; or if any distraint, execution or other process is levied or enforced on any property of the other and is not paid out, withdrawn or discharged within 7 days. The foregoing shall apply to any analogous procedures in a jurisdiction other than that set out in General Condition 19.

10.3  DigiHaul may terminate these General Conditions by giving 14 days’ notice to Shipper if Shipper fails to pay any sums payable by it under these General Conditions within 14 days of the due date of payment for the same.

10.4  On termination of the Agreement each party shall forthwith pay all sums due to the other party.

  1. DigiHaul’s Liability

11.1  DigiHaul’s liability for loss or damage to Products shall be limited to the terms set out in Condition 5 above.

11.2  Save for DigiHaul’s liability for loss of and damage to Products which shall be limited by Condition 12.1, DigiHaul’s aggregate liability arising out of or in connection with any Services provided or not provided under these General Conditions of Distribution shall be limited to the Charge for the Service upon which the loss occurred.

11.3  Nothing in these General Conditions shall exclude or restrict DigiHaul’s liability for death or personal injury caused by its negligence or for any other matter for which it would be unlawful for DigiHaul to exclude or limit its liability.

11.4  Neither party shall have any liability to the other whether arising out of or in connection with these General Conditions or its termination unless proceedings are issued and served within two years after the date of termination or expiry of these General Conditions.

11.5  Neither party shall be liable to the other for any indirect or consequential loss.

11.6  Shipper and DigiHaul acknowledge and agree that the allocation of risk and liability contained in these General Conditions is reasonable in all the circumstances.

  1. Computer Software

All computer hardware and software (if any) used by DigiHaul from time to time in providing the Services is utilised as part of DigiHaul’s internal management system at its absolute and unfettered discretion and accordingly Shipper shall have no rights, whether during or on termination of these General Conditions, in respect of the same.

  1. Notices

13.1  Any notice to be given under these General Conditions shall be in writing and shall be delivered or sent by pre-paid first class recorded delivery post to the party to be served at that party’s registered office from time to time marked for the attention of (i) in respect of DigiHaul: the Company Secretary; or (ii) in respect of the Shipper: the Company Secretary.

13.2  Any such notice shall be deemed to have been served if delivered, at the time of delivery; or if posted at the expiration of 48 hours after the envelope containing the same shall have been put in the post.

  1. Waiver

14.1  The failure or delay by either party in exercising any right, power, or remedy of that party under these General Conditions shall not in any circumstances impair such right, power or remedy nor operate as a waiver of it.  The single or partial exercise by either party of any right, power or remedy under these General Conditions shall not in any circumstances preclude any other or further exercise of it or the exercise of any other right, power or remedy.

14.2  Any waiver of a breach of, or default under, any of the terms of these General Conditions shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of these General Conditions.

  1. Determination of Disputes

15.1  The parties agree to co-operate with each other in an amicable manner with a view to achieving the successful implementation of these General Conditions.

15.2  If, notwithstanding Condition 16.1, a dispute arises between DigiHaul and Shipper during the term of these General Conditions in relation to any matter which cannot be resolved by local operational management either party may refer the matter for determination by referral in the first instance to the decision of the Managing Director of the relevant business unit of DigiHaul and the Managing Director of Shipper

15.3  If any dispute is not resolved within 21 days of its referral pursuant to Condition 16.2 then either party may refer it for determination by an independent person agreed between DigiHaul and Shipper or in the absence of such agreement within 7 days by a person appointed for this purpose by the President for the time being of The Law Society on the application of either DigiHaul or Shipper.  Such person shall act as an expert and not as an arbitrator and make such determination within 28 days of his appointment and his determination shall be final and binding on the parties.  The fees of such expert shall be paid as he may direct or in the absence of any direction such fees shall be paid equally by the parties.

15.4  Neither party shall be prevented from, or delayed in, seeking orders for specific performance or interlocutory or final injunctive relief on an ex parte basis or otherwise as a result of the terms of this Condition 16, such provisions not applying in respect of any circumstance where such remedies are sought.

  1. Representations and Entire Agreement

16.1  No understanding or representation which would have the effect of altering any term, obligation or condition of these General Conditions shall bind either of the parties unless incorporated in these General Conditions.

16.2  Each party acknowledges that in entering into these General Conditions it is not relying upon any representation, warranty, promise or assurance made or given by the other party or any other person, whether or not in writing, at any time prior to the execution of these General Conditions which is not expressly set out in these General Conditions, provided that neither this  nor anything else in these General Conditions shall exclude any liability which either party would otherwise have to the other in respect of any statements made fraudulently by that party prior to the date of these General Conditions.

16.3  This Agreement cannot be supplemented, amended, varied or modified except by a written instrument signed by duly authorised representatives of each of the parties.

  1. Compliance

17.1  The Shipper will not provide any Products considered as “controlled” for the provision of the Services.

17.2  Both parties will comply with all laws, regulations and orders of any government authority or international organisations including without limitation the laws relating to warehousing, transportation, the international movement of goods and value-added services that govern their respective activities in connection with these General Conditions. The Shipper will not request DigiHaul to provide Services that would cause, directly or indirectly, a violation of any such applicable laws or regulations.

17.3  Shipper will notify DigiHaul immediately and in writing if either it or its related companies, agents, consignees and/or any third party contracted by it or which is involved in the transportation or the international movement of the goods becomes owned or controlled by or acts for or on behalf of a party that is designated to be restricted or denied by a relevant government authority or international organisation (including but not limited to the UN, US or EU) (“Restricted Party List” or “Denied Party List”) or reasonably believes that its Products are destined to such a party, in relation to the Services under these General Conditions. The Shipper is obligated to provide DigiHaul recipient or consignee information in order to fulfil its own independent denied or restricted party screening obligations. DigiHaul shall have the right to refuse to provide any services relating to or in connection with a party that is on the Restricted Party List or Denied Party List or a country that is subject to sanctions, embargoes, or other restrictions under applicable laws.

  1. Proper Law

18.1  This Agreement shall be governed and construed in accordance with the laws of England.

18.2  The English courts shall, save as specified in Condition 16, have exclusive jurisdiction to settle any disputes which may arise out of or in connection with these General Conditions

  1. Cancellation Charges

19.1  If the Shipper, having offered a load then cancels that load within the time periods set out below in this Clause 19.1, then DigiHaul shall have the right to invoice Shipper as follows:

Criteria Charge Impact
Cancellation of a shipment 24 hours prior to the scheduled opening of a collection window or; where a time isn’t stipulated, before 10am the day prior to the collection date No charge
Cancellation of a shipment 12-24 hours prior to the scheduled opening of a collection window or; where a time isn’t stipulated, before 16:00 the day prior to the collection date The higher of £200 or 75% of the agreed shipment rate
Failure to collect or Cancellation of shipment 0-12 hours prior to the scheduled opening of a collection window or; where a time isn’t stipulated, before 10am the day prior to the collection date The higher of £200 or 100% of the agreed shipment rate

 

19.2  If DigiHaul, having accepted a load then cancels that load within the time periods set out below in this clause 19.2 then DigiHaul shall pay to the Shipper as follows:

Criteria Charge Impact
Cancellation of a shipment 24 hours prior to the scheduled opening of a collection window or; where a time isn’t stipulated, before 10am the day prior to the collection date No charge
Cancellation of a shipment 12-24 hours prior to the scheduled opening of a collection window or; where a time isn’t stipulated, before 16:00 the day prior to the collection date The higher of £200 or 75% of the agreed shipment rate
Failure to collect or Cancellation of shipment 0-12 hours prior to the scheduled opening of a collection window or; where a time isn’t stipulated, before 10am the day prior to the collection date The higher of £200 or 100% of the agreed shipment rate
  1. Demurrage

20.1  The shipper will agree to pay demurrage charges because of delays on collection or delivery caused by the shipper

or the shipper’s customer at the hourly rate specified in the Shipper Rate Card. If this is not specified in the Shipper

Rate Card, then demurrage will be charged at £50 per hour.

20.2  Demurrage charges will only begin to apply 120 minutes after arrival of the carrier at the collection or delivery

point. If the carrier arrives earlier than the agreed collection or delivery time, then the 120 minutes clock will only

start ticking once the agreed collection or delivery time is reached.