NPA Sales Terms & Conditions
CONDITIONS OF SUPPLY OF GOODS
1. FORMATION OF CONTRACT
1.1 These Conditions (the “Conditions”) set out the terms on which the National Pharmacy Association -NPA (or such subsidiary company as may provide the relevant goods and is indicated in an order) (the “Seller”) will supply goods to you (the “Buyer”). All quotations, offers and tenders are made and all orders are accepted subject to these Conditions. Except as otherwise provided in these Conditions, all other terms, conditions or warranties (including without limitation any terms, conditions or warranties which are referred to on any order submitted by the Buyer) are excluded from any contract between the Seller and the Buyer unless expressly accepted in writing by the Seller.
1.2 If there is a conflict between these Conditions and any terms of the Seller’s quotation, offer, tender or acknowledgement of order, such terms shall prevail.
1.3 When agreed with and authorised by a representative of the Buyer, each order, or as the case may be, each agreement relating to customer shelf stock and these Conditions, shall represent a contract binding on the parties (the “Contract”).
1.4 If any statement or representation has been made to the Buyer by the Seller or its officers, employees or agents (other than in the document(s) enclosed with the Seller’s quotation or acknowledgement of order), upon which the Buyer wishes to rely it shall only be entitled to do so if the statement or representation is attached to or endorsed on the Buyer’s order and then only if the Seller subsequently confirms in writing to the Buyer that the Buyer is entitled to rely on the statement or representation.
1.5 Any variation to these Conditions or any contract between the Seller and the Buyer to which these Conditions apply shall have no effect unless separately agreed in writing and signed by an authorised representative of the Seller and the Buyer.
2. PRICES AND PAYMENT
2.1 The pricing shown on the NPA webshop is for NPA members only. Associates (non NPA members) are able to purchase from the NPA but will not be eligible for the member prices, associate pricing is approx. 10% more than NPA member pricing. Members subject to contract pricing will be invoiced at the prices agreed.
2.2 Unless otherwise agreed in writing and subject to Condition 2.2 below, all prices are quoted inclusive of delivery (by the Seller’s usual means of carriage) except that if the Seller agrees to deliver the goods otherwise than at the Buyer premises, the Buyer shall pay all packaging, transportation and insurance costs and other charges incurred by the Seller in making or arranging such delivery. All prices are quoted exclusive of VAT and are payable in pounds sterling.
2.3 In the event that the value of an order is below £30, then the Buyer shall pay a delivery charge of £4.99 in addition to the price agreed for the goods.
2.4 The Seller reserves the right to charge additional carriage (as detailed below) for offshore deliveries, large or high value items supplied direct by manufacturer’s and shall notify the Buyer of such an additional charge prior to the Buyer’s order being processed. The Seller’s acknowledgement of order shall specify in writing the carriage charge payable.
2.5 Quoted prices are subject to fluctuation. The Seller reserves the right to make an additional charge to reflect any increase in the cost to the Seller arising after acceptance of an order which is due to any factor beyond the reasonable control of the Seller, any changes in delivery dates, quantities, or specifications, requested by the Buyer, or any delay caused by the instructions of the Buyer. The most current costs will be shown on the NPA web shop at www.npa.co.uk/sales or www.npasales.co.uk
2.6 For NPA members, unless otherwise agreed by the Seller in writing, payment shall be due and payable within 30 days of date of invoice in pounds sterling and shall be made without any set-off, counterclaim or deduction whatsoever. For Associates (non NPA members), unless otherwise agreed by the Seller in writing, payment shall be due by credit card at the point of order. Where a pro-forma invoice is raised goods will not be despatched until payment has been received and cleared.
2.7 The Seller shall be entitled to submit its invoice in accordance with the invoicing requirements which is selected in the application form overleaf except that where invoices are to be submitted on delivery and where delivery has been postponed at the request of, or by the default of, the Buyer, the Seller may submit its invoice at any time after the goods are ready for delivery or would have been ready in the ordinary course but for the Buyer’s request or default.
2.8 Where goods are delivered by instalments the Seller may invoice each instalment separately and the Buyer shall pay such invoices in accordance with these Conditions.
2.9 No disputes arising under the Contract nor delays (other than delays acknowledged by the Seller in writing), shall interfere with prompt payment in full by the Buyer.
2.10 If the Buyer shall fail to pay the invoice price by the due date, the Seller shall be entitled, without prejudice to any other right or remedy, to do all or any of the following:-
2..8.1 to suspend any or all further deliveries under the Contract and under any other contract or contracts between the Seller and the Buyer then current, without notice;
2.8.2 to charge interest on any amount outstanding at the rate of 5% per annum above the base rate of the National Westminster Bank from the date on which payment was due until the actual date of payment such interest being charged as a separate, continuing obligation not merging with any judgment together with any statutory debt recovery costs;
2.8.3 where trade discounts are granted by the Seller, to charge back such discounts to the Buyer;
2.8.4 to charge the Buyer for all costs and expenses including without limitation legal and other debt collection expenses incurred by the Seller in recovering and attempting to recover all or any amount due to the Seller by the Buyer;
2.8.5 to serve notice on the Buyer requiring immediate payment for all goods supplied by the Seller under this and all other contracts with the Buyer whether or not payment is otherwise due;
2.8.6 to sue for the price of the goods even though title to such goods may not have passed to the Buyer
2.11 Several of NPA’s products are an online service such as CDRX – electronic CD Register or Pro Delivery Manager and as such no physical product is delivered but access allowed to the system by way of purchasing a subscription. Should the subscription include an initial free trial period, no charge will be made for using the product during this time however at the end of the trial period, unless a subscription has been purchased, access to the system will be terminated. No further free trial can be applied for at that address within 12 months.
2.11.1 Pro Delivery Manager will be charged based on deliveries per branch, usage will be monitored and charged accordingly, if a subscription consistently exceeds the amount of deliveries purchased, NPA will revise the charging to the correct band. Any deliveries in excess of 1000 per branch per month will be charged at £0.03p per delivery and will be charged retrospectively.
2.11.2 For product usage terms and conditions please see the individual product
3. INTEREST FREE CREDIT
3.1 The NPA has the right to withdraw the offer to pay by instalments at any time without giving notice.
3.2 The offer is available to active NPA members/Associates with credit facilities.
3.3 The offer of 4 months interest free credit is available on selected products only, as shown on the NPA Sales web shop.
3.4 The interest free credit term is for a 4 month period and is not negotiable.
3.5 4 equal payments will be due at monthly intervals from the initial invoice date.
3.6 Standing order form must be returned within 7 days of the order being placed.
3.7 Should an instalment payment default or not be received on the due date, the NPA has the right to demand full payment of the outstanding invoice immediately and withdraw the instalment payment option.
5.1 Delivery of the goods shall occur when the goods arrive at the Buyer’s premises (as specified and agreed between the parties in an order) or if agreed by the Seller in writing, at such place as is specified by the Buyer.
5.2 Next day delivery is only offered on stock items, these are items that we hold in stock and are generally smaller fast moving goods, items like fridges and cabinets will not be on a next day delivery. If you are in doubt please contact the NPA sales team to confirm. Where stocked items are not available for next day delivery, NPA will call to notify you of when you will receive the item
5.3 The Buyer shall have no right to damages or to cancel the Contract for failure for any cause to meet any delivery time stated nor shall the Buyer be entitled to make, or to purport to make, time for delivery of the essence of the Contract.
5.4 Any date which is given cannot be guaranteed, we do not recommend any third party fitters or labourers are booked until goods are received
5.5 Delivery dates that are given are approximate shall in every case be dependent upon prompt receipt of all necessary information, final instructions or approvals from the Buyer.
5.6 Failure by the Buyer to take delivery of any one or more instalments of goods delivered in accordance with the Contract shall entitle the Seller to treat the Contract as repudiated by the Buyer either in whole or in part.
5.7 The Seller will endeavour to comply with reasonable requests by the Buyer for postponement of delivery of the goods but shall be under no obligation to do so. Where delivery is postponed, otherwise than due to default by the Seller then, without prejudice to all other rights and remedies available to the Seller, the Buyer shall pay all costs and expenses, including a reasonable charge for storage insurance and transportation so occasioned.
6. RISK AND TITLE
6.1 Subject to Condition 3.5 above, risk shall pass to the Buyer (so that the Buyer is then responsible for all loss or deterioration of the goods or for any damage occurring) at the time when the goods arrive at the place for delivery.
6.2 Title to the goods shall only pass to the Buyer if the Buyer has paid to the Seller all sums (including any default interest) due from it to the Seller under this Contract and under all other contracts between the Seller and the Buyer (including any sums due under contracts made after this contract) whether or not the same are immediately payable.
6.3 The Seller may recover goods in respect of which title has not passed to the Buyer at any time and the Buyer irrevocably licences the Seller, its officers, employees and agents to enter upon any premises of the Buyer, with or without vehicles, for the purpose either of satisfying itself that Condition 4.4 below is being complied with by the Buyer or of recovering any goods in respect of which title has not passed to the Buyer.
6.4 Until title to the goods has passed to the Buyer under these Conditions it shall possess the goods as fiduciary agent and bailee of the Seller. If the Seller so requires, the Buyer shall store the goods separately from other goods and shall ensure that they are clearly identifiable as belonging to the Seller.
7.1 Subject to Conditions 6.2 and 6.3 below and except in relation to the following: perishable goods including without limitation food items and special order or bespoke items (orders for which cannot be cancelled) upon cancellation of an order, the Seller may issue a credit note to the full value of the items which are cancelled.
7.2 Not all products can be returned and some products that can be returned may be subject to re-stocking fees or specific requirements. If you are in doubt please contact the NPA sales team to confirm.
7.3 The Seller cannot issue credit notes for goods which been used or had their packaging damaged preventing resale.
7.4 Where orders or part orders are cancelled by the Buyer, and that have either been personalised to the Buyers specifications or that the Seller has incurred costs in respect of this order in advance of the date on which the notification of cancellation is received by the Seller, these costs will be met by the Buyer. In such an event, the Seller shall inform the Buyer of the cost immediately and will invoice the Buyer for the amount incurred.
7.5 Where orders are delivered and are then cancelled by the Buyer, either by refusing delivery or by contacting the Seller, and charges will be made to restock item by the Sellers suppliers, these costs will be met by the Buyer. In such an event, the Seller shall inform the Buyer of the cost immediately and will invoice the Buyer for the amount incurred.
8.1 No variations to the goods required by the Buyer shall be binding on the Seller unless agreed by the Seller and the Buyer in writing, including, as part of such agreement, any change to the Contract price or reimbursement of the Seller’s costs (in relation to bespoke goods) arising in consequence of the variation to the goods. Any reduction in order quantity or goods returned pursuant to this Condition will be subject to a handling charge of 10% of the invoiced value of the goods or £5, whichever is greater, together with delivery charges and refurbishing works where applicable.
8.2 If the Seller agrees to any such variation, prior to any goods being delivered any dates quoted for delivery shall be extended accordingly.
9.1 The Seller reserves the right to alter the dimensions or composition of the goods supplied to conform to applicable standards or laws or otherwise within reasonable limits having regard to the nature of the goods.
9.2 The information contained in the advertising, sales and technical literature issued by the Seller may be relied upon to be accurate in the exact circumstances in which it is expressed. Otherwise any illustrations, performance details, examples of installations and methods of assembly and all other technical data in such literature are based on experience and upon trials under test conditions and are provided for general guidance only. No such information or data shall form part of the Contract unless the Buyer shall have complied with Condition 1.4 relating to statements and representations and the Seller shall have given the confirmation referred to in that Condition.
9.3 NPA is a reseller of the DX Prescription Collection Service and as such any NPA member or associate signing up to this service must accept DX’s terms and conditions shown in Appendix 1.
10. SHORTAGES AND DEFECTS APPARENT ON INSPECTION
10.1 The Buyer shall only be entitled to claim (and then subject to Conditions 10 and 11) for shortages or defects in the goods as supplied which are apparent on visual inspection if:-
10.1.1 the Buyer inspects the goods within three working days following the date of their arrival at its premises or other agreed destination; and
10.1.2 a written complaint specifying the shortage or defect is made to the Seller within seven working days of delivery in the event of shortage, defect, or non-delivery of any separate part of a consignment, or within fourteen working days of the notified date of dispatch in the event of non-delivery of a whole consignment; and
10.1.3 the Seller is given an opportunity to inspect the goods and investigate any complaint before any use of or alteration to or interference with the goods.
10.2 If a complaint is not made to the Seller as provided in this Condition 8, the goods [and services] shall be deemed to be in all respects in accordance with the Contract (subject only to Condition 9) and the Buyer shall be bound to pay for the same accordingly.
11. DEFECTS NOT APPARENT ON INSPECTION
11.1 The Buyer shall only be entitled to claim (and then subject to Conditions 10 and 11) in respect of defects in the goods supplied which are not apparent on visual inspection at the time of delivery, if:-
11.1.1 a written complaint is sent to the Seller as soon as reasonably practicable after the defect is discovered and subsequently no use is made of the goods or alteration or interference made to or with the goods before the Seller is given an opportunity to inspect the goods in accordance with Condition 9.4; and
11.1.2 the complaint is sent within 1 months of the date of delivery of the goods or, in the case of an item not manufactured by the Seller, within the guarantee period specified by the manufacturer of such item.
11.2 The Buyer shall not be entitled to claim in respect of any repairs or alterations undertaken by the Buyer without the prior specific written consent of the Seller nor in respect of any defect arising by reason of fair wear and tear or damage due to accident, neglect or misuse nor in respect of any goods to which alterations have been made without such consent or to which replacement parts not supplied by the Seller have been fitted.
11.3 The Seller shall not be liable for (and the Buyer shall indemnify the Seller against claims arising from) loss or damage suffered by reason of use of the goods after the Buyer becomes aware of a defect or after circumstances have occurred which should reasonably have indicated to the Buyer the existence of a defect.
11.4 The Seller may within 15 days of receiving a written complaint (or 28 days where the goods are situated outside the United Kingdom) inspect the goods and the Buyer, if so required by the Seller, shall take all steps necessary to enable it to do so.
12.1 Except as otherwise provided in these conditions, Sections 13 to 15 of the Sale of Goods Act 1979 are to be implied into the Contract.
12.2 If the condition of the goods is such as might or would (subject to these conditions) entitle the Buyer to claim damages, to repudiate the Contract, or to reject the goods the Buyer shall not then do so but shall first ask the Seller to issue a credit note, or repair or supply satisfactory substitute goods and the Seller shall then be entitled at its option to issue a credit note (in which event the credit note shall be valid for three months from its date of issue (or such longer period as may be agreed by the Seller in writing) and shall amount to the full value of the goods concerned (or in the case of short deliveries, for the value of the goods not delivered)), or repair or take back the defective goods and to supply satisfactory substitute goods free of cost and within a reasonable time or to repay the price of the goods in respect of which the complaint is made in full settlement of any claim.
12.3 Where costs are incurred in returning the goods under Condition 10.2 to the Seller these shall be met solely by the Buyer.
12.4 If the Seller does so issue a credit note or repair the goods or supply satisfactory substitute goods or effect repayment under Condition 10.2, the Buyer shall be bound to accept such credit note, repaired or substituted goods or repayment and the Seller shall be under no liability in respect of any loss or damage of whatever nature arising from the initial delivery of the defective goods or from the delay before the defective goods are repaired or the substitute goods are delivered or the repayment is effected.
12.5 In the case of goods not manufactured by the Seller:-
12.5.1 the Seller gives no assurance or guarantee that the sale or use of the goods will not infringe the patent, copyright or other industrial property rights of any other person, firm or company; and
12.5.2 the obligations of the Seller relating to defects in such goods are limited to the guarantee (if any) which the Seller receives from the manufacturer or supplier of such goods.
13. EXCLUSION OF LIABILITY
13.1 Nothing in these Conditions or in any Contract excludes or limits the liability of the Seller for death or personal injury caused by the Seller’s negligence, or for fraud or fraudulent misrepresentation.
13.2 Subject to Condition 11.1: a) the Seller’s total liability in contract, tort (including negligence or breach of statutory duty) or otherwise arising in connection with the supply of the goods hereunder shall not exceed the value of the order pursuant to which the goods are supplied; and b) in no circumstances whatsoever shall the Seller be liable to the Buyer in contract, tort (including negligence and breach of statutory duty) or otherwise for any loss of profits, goodwill or business opportunity (whether direct or indirect) or for any indirect, special or consequential loss (whether or not reasonably foreseeable and even if the Seller had been advised of the possibility of the Buyer incurring the same).
14. INTELLECTUAL PROPERTY RIGHTS
14.1 All claims for alleged infringement of patents, trademarks, registered designs, design right or copyright received by the Buyer relating to the goods must be notified immediately to the Seller. If requested by the Seller, the Seller shall be entitled to have conduct of any proceedings relating to any such claim in such manner as the Seller thinks fit and the Buyer will provide to the Seller such reasonable assistance as the Seller may request. The cost of any such proceedings will be borne by the Seller.
15. CUSTOMER’S DRAWINGS
15.1 The Buyer shall be solely responsible for ensuring that all drawings, information, advice and recommendations given to the Seller, either directly or indirectly by the Buyer or by the Buyer’s consultants or advisers, are accurate, correct and suitable unless, and then only to the extent that, the Seller agrees in writing signed by a director or other authorised representative to accept responsibility.
15.2 The Buyer shall indemnify the Seller from and against all actions, claims, costs and proceedings which arise due to the manufacture or supply of goods by the Seller being in accordance with drawings or specifications provided by the Buyer if such drawings or specifications are inaccurate or contain design defects or if they infringe or are alleged to infringe a patent, copyright, registered design, design right or design copyright or other right of any third party.
Either party may terminate the Contract with immediate effect by notice to the other if the other shall become “Insolvent”. A party shall be “Insolvent” if any encumbrancer takes possession of or a receiver or administrative receiver is appointed over any of its property or assets or if it makes any voluntary arrangement with its creditors or becomes subject to an administration order or has an administrator appointed or goes into liquidation or anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to it or if it ceases or threatens to cease to carry on business.
17. FORCE MAJEURE
The Seller shall be under no liability for any failure to perform any of its obligations under the Contract if and to the extent that the failure is caused by act of God, governmental restriction, condition or control or by reason of any act done or not done pursuant to a trade dispute, shortages of labour or materials or breakdown of machinery or any other matter (whether or not similar to the foregoing) outside the control of the Seller.
18. SPECIALS AND FREE ISSUE MATERIALS
18.1 The Seller does not guarantee the suitability of materials or the design of goods made specially to the Buyer’s requirements and differing from the Seller’s standard specifications even if the purpose for which the goods are required is known to the Seller.
18.2 The Seller does not accept responsibility for the safe-keeping and condition of the Buyer’s samples, drawings and the like whilst they are in the Seller’s possession whatever the circumstances may be in which they are lost, broken or damaged and the Buyer should make its own arrangements to insure these items.
The Contract is entered into between the Seller and the Buyer as principals and the Buyer shall not be entitled to assign the benefit or burden of the Contract or of any interest in it without the prior written consent of the Seller. The Seller shall be entitled to sub-contract the whole or part of its obligations under the Contract and to assign its interest in the Contract.
If these conditions shall be or become void in whole or in part, the other provisions shall remain valid and enforceable and the void provisions shall, where appropriate, be replaced by other provisions corresponding as closely as possible with the void provisions.
21.1 A failure by the Seller to exercise, or a delay in exercising, any right or remedy under the Contract shall not constitute a waiver of the right or remedy or a waiver of any other rights or remedies which the Seller may otherwise have and no single or partial exercise of any right or remedy under the Contract shall prevent any further exercise of the right or remedy or the exercise of any other right or remedy.
21.2 Any waiver by the Seller of a breach of any of the terms of the Contract or of any default under the Contract shall not be deemed a waiver by the Seller of any subsequent breach or default and shall not affect the other terms of the Contract.
22. EUROPEAN MONETARY UNION
Unless otherwise agreed in writing, the occurrence or non-occurrence of an event associated with European Monetary Union will not of itself discharge the Contract, or entitle one party unilaterally to vary or terminate it.
23. THIRD PARTY RIGHTS
A person who is not a party to the Contract (a “third party”) shall have no rights pursuant to the Contracts (Rights of Third Parties) Act 1999 (the “Act”) to enforce any of these Conditions or any other term of the Contract. Any right or remedy of a third party which exists or is available apart from the Act is not affected.
24. LAW AND JURISDICTION
The parties agree that any disputes arising or in any way connected with the subject matter of the Contract (whether of a contractual or tortious nature or otherwise) shall be subject to the laws of England and in the case of proceedings issued against the Seller shall be subject to the jurisdiction of the English courts only
24. DATA PROTECTION
We, being the NPA Group of companies, hold and process all personal information (“Information”) in accordance with the DataProtection Act 1998. By submitting your Information (which may include sensitive personal information) to us at any time in connection with administering your accounts as NPA members or Associates you consent to your information being processed by us in accordance with this Data Protection Statement. If your information changes please inform us of the change so that we can update our records. We will use information to contact you at various times by post, telephone, electronically and by other means for the following purposes:
24.1 to administer the relationship between you and the NPA Group, and manage business processes in support of this (which may include using third parties)
24.2 to promote the interests of customers to the public
24.3 to offer you access to facilities such as NPA information, NPA training courses, NPA products and services and NPA insurance, and
24.4 for additional purposes as set out in the Data Protection Notice which forms part of our “Information about our Insurance Services” document.
We also reserve the right:
24.5 to use your information for statistical analysis
24.6 to analyse your use of our web site and related services using, for example, “cookies” when you access those services,
24.7 to transfer Information to other companies (“Other Companies”), which we screen on your behalf to make sure that they are offering products or services that are likely to be of value to pharmacy businesses and professionals. In the unlikely event that you find communication from these Other Companies unwelcome, you may at any time elect not to receive such communication in future. Likewise, you may elect not to receive marketing communications from us. Should you opt out of either, you will not have to opt out again upon renewal of your membership.
24.8 to transfer our business assets or our rights under any Group product (which include Information) on sale or merger of the whole or part of the NPA Group. We may do this without contacting you.
24.9 to transfer our Information as required to obtain legal advice, comply with legal and regulatory requirements, protect our rights and property, and the safety of our employees, clients, suppliers and others.
You should show this Data Protection Statement to anyone whose personal information you have submitted to us. You have the right to request copies of the Information we hold about you. If you would like to know what information we hold about you, contact the Data Manager, NPA, Mallinson House, 38-42 St Peter’s Street, St Albans, AL1 3NP. A fee may be charged for this.
At any time you may ask for further explanation of this policy or change the preference you have registered with us in terms of receiving communication from us or from Other Companies. he NPA Group comprises: The National Pharmacy Association Limited, NPA Services Limited, NPA Finance and Leasing Limited, NPA Insurance Limited
The following terms shall be deemed to be accepted by placing an order on the National Pharmacy Association electronic ordering website as notified from time to time (“the Website”):
No part or parts of any information supplied on this Website may be reproduced in any form or by any means electronic or mechanical, including photocopying, recording or any information storage or retrieval system, except for the express purpose of placing or keeping a copy of an order.
Copyright in the Website design and technology is and remains the joint property of the Company and all rights are reserved.
The Website may contain hyperlinks to websites operated by other parties. The Seller does not control such websites and takes no responsibility for, and will not incur any liability in respect of, their content. The Seller’s inclusion of hyperlinks to such websites does not imply any endorsement of views, statements or information contained in such websites.
28. PASSWORD SECURITY
The Buyer agrees that the person(s) using the Website for placing order(s) have the capacity and authority to place orders on behalf of the buyer (“Authorised User”). The Buyer is responsible for ensuring that only Authorised Users place orders on the Website and that the passwords issued by the Seller are kept secure and confidential. The Buyer agrees that the Seller is entitled to rely absolutely on any orders placed using the password(s) issued by the Seller. The Buyer shall inform the seller if they become aware of any unauthorized or mis-use so that new passwords can be issued.
29. INTERNET SECURITY/AVAILABILITY
The Buyer cannot guarantee the security of the internet or that the Website will be available at all times. However the Seller has exercised due diligence to ensure, so far as reasonably practicable, that the Website is secure and will be available during normal trading hours whenever possible.
30. DATA PROTECTION
The Seller undertakes that it shall not hold information about the Buyer which is excessive in relation to the purposes for which it is used; not keep information for any purpose for longer than is necessary; and process information in accordance with the Data Protection Act 1998.
The Seller hereby grants the Buyer a limited, non-exclusive, licence for the purpose of using the Website to place orders.
32. For the general Terms and Conditions of NPA’s corporate site please see refer to National Pharmacy Association – Terms and conditions
DX Parcel & Courier
STANDARD TERMS AND CONDITIONS
Capitalised terms used in these Standard Terms and Conditions shall have the following meanings:
Agreement means the agreement for the provision of the Services to the Customer subject to these Standard Terms and Conditions as supplemented by the
Consignment means any item or items contained in one parcel, package or container, as the case may be, or any number of separate parcels, packages or containers sent at one time in one load by or for the Customer for delivery to the same address;
Contract Year has the meaning given to it in the Service Agreement;
Customer means any person, firm, body corporate, association or organisation to whom the Services are provided by DX;
Force Majeure means any event beyond the reasonable control of DX Services plc, including without limitation act of God, severe weather, war invasion, civil commotion, embargo, hostilities (whether war be declared or not) seizure or forfeiture under legal process, epidemic, act or order of any government public local or other authority, labour disputes of whatever nature, explosion or fire;DX means DX Network Services Limited, whose registered office is situated at DX House, Ridgeway, Iver, Bucks, SL0 9JQ, and its successors and assigns;
DX Group means DX Services plc and its subsidiaries from time to time (as defined by Sections 736 and 736A of the Companies Act 1985);
Prohibited Article means:
(i) any Consignment that is not packed in compliance with, or otherwise does not fully comply with, the Regulations or the provisions of the Agreement or that contains any substance or matter prohibited by the Regulations; or
(ii) any item which might or does cause any personal injury or physical damage to any person or property, or might otherwise be considered dangerous or hazardous; or
(iii) any of the following: asbestos; bank notes or any other financial instrument capable of conversion into cash by anyone other than the payee; bottled perfumery; bullion; cash; chemicals; cigarette lighters; clothing; computers and/or computer chips (except as agreed in writing between the parties and subject to further insurance as DX may require the Customer to obtain); consumer redemption vouchers; compressed gases and aerosols; credit cards and cash dispenser cards; credit company sales vouchers; domestic audio and/or visual equipment and/or accessories; drugs; explosives; footwear; furs and fur clothing; firearms; flammable items; human remains (in any form); gift tokens; holiday saving stamps; industrial carbons and diamonds; jewellery; lewd, obscene or pornographic items; liquids; living creatures; luncheon vouchers; matches; non-ferrous metals in sheet bar or ingot form; organic peroxide; oxidising materials; paints, varnishes, enamels and similar substances; pathological specimens; perishables; photographic equipment and/or accessories (but excluding x-rays, films, negatives, microfiche, photographic prints or similar items); poisons; precious metals and stones; articles made of or containing precious metals; processed tobacco or tobacco products; radioactive material; unused units in franking machines; valuables and gifts; watches; works of art;
the Regulations means the Health and Safety at Work etc Act 1974, Health and Safety Regulations and Statutory Instruments issued thereunder and any international, European or other national laws or regulations or protocols which apply to the packaging, handling and carriage of goods including (but not limited to) applicable regulations made by the Universal Postal Union, the International Civil Aviation Organisation and the International Air Transport Association;
the Services means the service or services to be provided by DX to the Customer subject to the provisions of the Agreement;
Service Agreement means the service agreement and any service schedule(s) annexed thereto;
Standard Terms and Conditions means these standard terms and conditions as supplemented or amended pursuant to Condition 7 or as otherwise agreed in writing between the parties.
2.1 DX reserves the right to open for examination any Consignment that is not correctly addressed.
2.2 The Customer shall procure that no Prohibited Article is sent by the Services and that all Consignments and their contents are labeled and packed in accordance with the terms of the Agreement and otherwise comply with the Regulations, for which purposes the Customer is deemed to have full knowledge of the requirements of the Regulations. If DX believes that any Consignment or any item forming part of a Consignment either (a) may comprise or contain a Prohibited Article or (b) has not been labeled and/or packaged in accordance with the Regulations or the Agreement or (c) otherwise does not comply with the Regulations or the Agreement, DX reserves the right to:
(i) refuse to handle; and/or
(ii) open and/or retain for further examination; and/or
(iii) accept such Consignment or item for carriage on the basis that DX shall not be responsible in any way for any loss or damage howsoever caused either to the Consignment or item (as the case may be) or to any person or property as a result of that Consignment or item. If DX believes that the sending of any Consignment or its contents amounts to or may amount to a criminal offence it may pass such Consignment and/or its contents to the relevant authorities.
Title to any property issued to the Customer by DX for the purpose of the provision of the Services by DX shall remain with DX. The Customer shall be responsible for such property whilst in its care or control and return such property to DX immediately upon demand.
4. EXCLUSION AND LIMITATION OF LIABILITY
4.1 The Customer acknowledges that the value and contents of any Consignment and also the amount of loss which may be suffered by the Customer are only known to the Customer. In view of this, DX advises and the Customer agrees (subject to where the Customer has elected the insured service details of which can be made available by DX) to maintain adequate insurance on an “all risks” basis in respect of any Consignment for its full value to the Customer. The Customer further acknowledges that the charges for the Services reflect the exclusions and limitations in the Agreement and that under the circumstances such exclusions and limitations are reasonable.
4.2 DX shall not be liable to the Customer or any other person in connection with or arising out of the Agreement or the performance or non-performance of the Services except to the extent that the loss or damage suffered by the Customer results solely from the negligence of, or breach of this Agreement by DX or its agents or sub-contractors in which case such liability shall be subject to the exclusions and limitations set out in these Conditions.
4.3 Subject to Condition 4.2 DX’s liability for any loss or damage arising out of or in connection with the Agreement or performance or non-performance of the Services, howsoever caused or arising, shall:
4.3.1 in the case of loss or damage to any Consignment be limited to the lesser of (i) £10 for Regular Service, £30 for the Silver Service and £40 for the Tracked Gold Service or £50 in respect of using the Consigned Service), (or such greater amount if agreed by the parties in the Service Schedule(s)) per Consignment affected, (ii) the amount of loss or damage actually sustained and (iii) the cost of replacement or repair of the relevant Consignment or its resale or fair market value without reference to the commercial utility or special value to the Customer or any other person, less the value of the Consignment after the loss or damage sustained;
4.3.2 in the case of loss of or damage to any tangible physical property of the Customer (other than any Consignment the liability for which is dealt with by Condition 4.3.1 above) caused by the negligence of DX or any of its employees be limited to £2 million in respect of any one claim or series of claims arising out of one cause subject to an overall maximum aggregate liability of £2 million in any one Contract Year; and
4.3.3 in all other cases, the aggregate liability of DX in any Contract Year shall not exceed the total Charges (excluding VAT) payable by the Customer for the Services in respect of that Contract Year, or if this Agreement has terminated, the Contract Year during which the event giving rise to the claim arose.
4.4 Notwithstanding Condition 4.3 DX shall not be liable to the Customer or any person for:
4.4.1 any loss of or damage to profits, revenue, savings, data, use, contract, goodwill or business or for any indirect or consequential loss or damage, in each case howsoever caused or arising;
4.4.2 any loss or damage caused by delay in the collection or delivery of any Consignment due to mis-delivery;
4.4.3 any loss or damage caused by an event of Force Majeure (including, without limitation, any loss or damage caused by any temporary interruption of Services resulting from an event of Force Majeure);
4.4.4 any loss of or damage to a Consignment which cannot be shown to have occurred whilst such Consignment was within the care, custody and control of DX or its employees, agents or subcontractors;
4.4.5 damage to a Consignment unless such damage is evidenced by crushing, piercing, water damage, or other damage to, or deterioration of, the outer packaging thereof which is apparent to the naked eye;
4.4.6 any loss or damage caused to or by, or otherwise in respect of (i) a Prohibited Article, or (ii) arising from or caused by the failure of the Customer to fully comply with the Regulations or the provisions of the Agreement;
4.4.7 any claim unless notified in writing to DX, within 30 days of the date of dispatch of the Consignment to which the claim relates.
4.5 The term “howsoever caused or arising” when used in this Condition 4 shall be construed widely to cover all causes and actions giving rise to liability, including but not limited to (i) whether arising by reason of any misrepresentation (whether made prior to and/or in this Agreement), negligence, breach of statutory duty, other tort, breach of contract, restitution or otherwise and (ii) whether arising under any indemnity and (iii) whether caused by any total or partial failure or delay in supply of the Services.
4.6 Notwithstanding any other provision of this Agreement, all the exclusions and limitations of liability contained in this Agreement shall apply regardless of whether the Customer notifies DX of the possibility of any greater loss or damage (except where the Customer has elected the insured service) and all such exclusions shall only apply so far as permitted by law and in particular nothing in the Agreement shall limit or exclude liability for fraud or for death or personal injury caused by negligence.
4.7 The Customer hereby agrees with regard to the state and condition of a Consignment that the signature by or on behalf of the Customer or the consignee of a proof of delivery form shall be prima facie evidence of the good condition of the relevant Consignment when delivered.
4.8 All employees, agents and subcontractors of DX (each being a “TP”) shall each be entitled, in its own right to the benefit of and pursuant to the Contracts (Rights of Third Parties) Act 1999 (“TP Act”), to enforce every defence and limitation available to DX under this Agreement (in particular the provisions of this Condition 4) to the extent determined by DX in its absolute discretion from time to time, as if such defences and limitations were expressed to be for the benefit of the relevant TP. The parties to this Agreement shall not be required to notify or obtain the consent of any TP in order to rescind or vary this Agreement or any provision of it (for the avoidance of doubt, including, without limitation, this Condition 4). The aggregate liability of all TPs and DX collectively shall be no greater than the liability of DX alone, as set out in this Agreement. Save as referred to in this Condition 4.8, no provision of this Agreement shall be enforceable by any person who is not a party to it, pursuant to the TP Act. No TP may assign or otherwise transfer any of its rights referred to in this Condition 4.8.
4.9 The Customer agrees to indemnify DX against all losses, liabilities, claims, demands, costs and expenses in excess of the liability expressly accepted by DX hereunder.
5. CUSTOMER’S WARRANTY AND INDEMNITY
5.1 The Customer warrants that:
(a) where the Customer is not the owner of the Consignment, it has the authority of all parties owning or having any legal interest in the same to use the Services for the despatch thereof;
(b) the nature or contents of the Consignment will not cause DX to break any laws or statutory regulations;
(c) the Consignment is adequately prepared, addressed, labeled and packaged for safe despatch through the Services (including, where appropriate, transport by air) and for safe handling, whether by manual or mechanical means by DX staff and its sub-contractors; and
(d) the Consignment has been labeled and packaged in full compliance with the Regulations.
5.2 Without prejudice to any other provisions of the Agreement, the Customer shall indemnify and hold DX harmless against all losses, liabilities, claims, demands, costs and expenses that may result from:
(a) any latent or inherent defect or natural deterioration of the Consignment and/or any Consignment that is inherently dangerous, unstable or liable to cause any loss or damage of whatever kind;
(b) any other damage caused by the substance, composition or nature of the Consignment or the method of packaging employed;
(c) any breach by the Customer of the warranties in Condition 5.1;
(d) any third party claim arising directly or indirectly from the Customer’s use of the Services save for claims for loss or damage for which DX is expressly liable hereunder; and
(e) the neglect or default of the Customer or any breach of its obligations under the Agreement.
6. COMMON CARRIER
DX is not a common carrier and accepts items for carriage only in accordance with the provisions of, and subject to, the Agreement. DX reserves the right to refuse at any time to carry any Consignment at its absolute discretion.
7. ALTERATION TO TERMS
The provisions of these Standard Terms and Conditions may be supplemented or amended by DX at the absolute discretion of DX provided that any changes are notified to the Customer in writing not less than 1 month before the changes are to take effect in which case the Customer shall be bound by the Agreement as so supplemented or amended.
8.1 DX agrees to take all reasonable steps to prevent any disclosure by it to any third party, other agent or representative of the Customer authorised in accordance with this Agreement of any secret or confidential information belonging to the Customer which comes to DX’s possession through the performance of this Agreement, provided that this obligation of confidence will not apply in respect of any disclosure required by law or by any regulatory authority nor in respect of any information which is or becomes to be in the public domain other than as a result of DX’s breach of this Agreement.
8.2 If any provision of the Agreement shall be declared to be invalid or ineffective in any respect, the validity, legality and enforceability of the remaining provisions of the Agreement shall not in any way be affected or impaired thereby.
8.3 Any failure in or delay by DX to take any action to enforce any part of the Agreement shall not operate as a waiver of that breach or any other breach, and no waiver of any breach shall operate as a waiver of any subsequent breach.
8.4 References to any statute or statutory provisions include references to that statute or statutory provision as from time to time amended, extended or re-enacted and include any statutory instrument, rules, regulations or other subordinate legislation made from time to time thereunder.
8.5 The Agreement constitutes the entire agreement and understanding between the Customer and DX as to the matters to which they relate and supersedes all prior oral or written agreements, understandings or arrangements relating to the provision of the Services. Save for any amendment made to these Standard Terms and Conditions pursuant to Condition 7 no variation to the Agreement shall be effective unless made in writing and signed by an authorised representative of both the Customer and DX.
8.6 The Customer shall notify DX in writing of any merger or amalgamation with another Customer and of any change to the address or addresses to which invoices should be sent by DX within 7 days of the occurrence thereof. All notices shall be sent to the following address (unless otherwise notified by DX): Customer Implementation Team, DX, DX House, Ridgeway, Iver, Bucks, SL0 9JQ.
8.7 The Agreement may be assigned or transferred (in whole or in part) to any member of the DX by DX without the consent of the Customer. The Customer shall not be entitled to assign or transfer the benefit of the Agreement save with the prior written consent of DX which shall not be unreasonably withheld.
8.8 DX shall be entitled to delegate or sub-contract out the Services (or any part thereof) provided that DX shall remain liable in accordance with the terms set out herein.
8.9 Any notice required or permitted to be given by either party pursuant to the Agreement shall be in writing addressed to that other party and sent to the other party, in the case of the Customer to its registered office or principal place of business and in the case of DX to the address set out in Condition 8.6.
8.10 The Agreement shall be governed by and construed in accordance with the laws of England and Wales. DX and the Customer irrevocably submit to the non-exclusive jurisdiction of the English Court of Law
Issue date Oct 2015 Version 11