1. Definitions and Interpretation
In this Contract:
1.1. the following terms shall have the following meanings unless the context otherwise requires:
"Breach of Duty" has the meaning given to it in Clause 6.9.1;
"Business Day" any day other than (i) a Saturday, (ii) a Sunday or (iii) a day when the clearing banks are not physically open for business in the City of London;
this "Contract" these Terms and Conditions, together with the relevant terms of any Long Term Agreement, and:
(a) the relevant Order Acknowledgement (if any); or
(b) (if no Order Acknowledgement) the terms of the relevant Order (except to the extent that the terms of the Order deviate from the Quotation (if any) or from the Long Term Agreement (if any), and are not agreed in writing by GMS Transport Group);
"Customer" the customer of GMS Transport Group whose details may be more particularly set out in the Order, Order Acknowledgement or Long Term Agreement;
"Event of Force Majeure" has the meaning given to it in Clause 10.1;
"Fee" the fee payable by Customer to GMS transport Group for the supply by GMS Transport Group of the Services, as specified in this Contract or Long Term Agreement (or if no such fee is specified there, it shall be the fee customarily charged by GMS Transport Group for those Services as at the date of the Order);
"GMS Transport Group" (trading as “GMS transport Group Limited”), a company registered in England under number 10691852 whose registered office is at C/O Duncan Sheard Glass, Castle Chambers, 43 Castle Street, Liverpool, L2 9TL
"Liability" has the meaning given to it in Clause 6.9.2;
"Long Term Agreement" any written agreement between the Parties governing the long-term relationship concerning the supply of Services by GMS Transport Group to Customer;
"Order" the request by Customer (whether in writing or orally) to GMS Transport Group for the provision of particular Services, which shall be in accordance with the terms of any particular Quotation or Long Term Agreement;
"Order Acceptance" GMS Transport Group’s acceptance (whether in writing or orally) of Customer’s Order;
"Order Acknowledgement" the written communication (if any) which GMS Transport Group despatches to Customer (in response to GMS Transport Group’s receipt of an Order), which shall either be the Order Acceptance or a record of the Order Acceptance and which may contain (together with any applicable Long Term Agreement) the particular details of any provision of particular Services and which shall reflect the commercial terms of the Quotation (if any) or Long Term Agreement (if any);
"Party" either GMS Transport Group or Customer;
"Point of Collection" the place at which GMS Transport Group receives the Products from or on behalf of Customer;
"Point of Destination" the place of GMS Transport Group’s delivery of the Products to Customer or Recipient or (as applicable) Customer’s or Recipient’s collection of the Products from GMS Transport Group;
"Products" the products agreed to be delivered (and, if applicable, stored in the meantime) by GMS Transport Group after GMS Transport Group takes receipt of them until they are delivered to (or made available for collection by) Customer or Recipient, as those products may be more particularly described in this Contract;
"Quotation" the quotation (if any) from GMS Transport Group to Customer detailing the Services that GMS Transport Group is willing in principle to supply to Customer for a particular order;
"Recipient" the person taking receipt of or collecting the Products from GMS Transport Group for or on behalf of Customer;
"Services" the services provided or to be provided by GMS Transport Group to the Customer under this Contract, more particularly described in this Contract, which may include any or all of the following:
(a) taking receipt of the Products;
(b) storing the Products;
(c) selecting the Products to be delivered;
(d) delivering the Products to the Point of Destination; all of which in appropriate temperatures until they are delivered to the Point of Destination, according to what is agreed between the Parties in this Contract;
"Transit" the volume of Products collected or delivered in a single vehicle under this Contract;
1.2 references to "Clauses" are to clauses of these Terms and Conditions;
1.3 headings are inserted for convenience only and shall not affect the interpretation or construction of this Contract;
1.4 words imparting the singular shall include the plural and vice versa. Words imparting a gender shall include the other gender and the neutral and references to persons shall include an individual, company, corporation, firm or partnership;
1.5 references to "includes" or "including" or like words or expressions shall mean without limitation.
1.6 references to any statute or statutory provision shall include any subordinate legislation made under it, any provision which it has modified or re-enacted (whether with or without modification) and any provision which subsequently supersedes it or re-enacts it (whether with or without modification); and
1.7 references to "written" or in "writing" (except in respect of sending a notice in accordance with Clause 11) includes in electronic form.
2.1 The terms of this Contract apply to the exclusion of any terms and conditions submitted, proposed or stipulated by Customer. Except to the extent otherwise expressly agreed in writing by GMS Transport Group, these Terms and Conditions apply to GMS Transport Group’s supply of all Services.
2.2 Save as expressly provided herein, this Contract shall operate to the entire exclusion of any other agreement, understanding or arrangement of any kind between the Parties hereto preceding the date of this Contract and in any way relating to the subject matter of this Contract and to the exclusion of any representations not expressly stated herein save for any fraudulent misrepresentations or any misrepresentation as to a fundamental matter. Each Party acknowledges that it has not entered into this Contract based on any representation that is not expressly incorporated into this Contract.
2.3 This Contract constitutes the whole agreement and understanding of the Parties as to the subject matter hereof and there are no provisions, terms, conditions or obligations, whether oral or written, express or implied, other than those contained or referred to herein.
2.4 In the event of any conflict between the provisions of these Terms and Conditions and the rest of this Contract or any Long Term Agreement, then the following order of precedence shall apply:
2.4.1 the Long Term Agreement prevails over an Order, Order Acknowledgement and these Terms and Conditions; and
2.4.2 the Order and any Order Acknowledgement prevails over these Terms and Conditions; and
2.4.3 any Order Acknowledgement prevails over the Order.
2.5 Except as described in these Terms and Conditions, if Customer provides GMS Transport Group with an Order, purchase order, specification or other document for the Services, such document shall be purely for Customer's administrative purposes only and shall not form part of this Contract.
2.6 Customer shall ensure that the Order is on the same terms as any Quotation and Long Term Agreement and is made in accordance with the terms of the Quotation or Long Term Agreement (except to the extent that GMS Transport Group has agreed in writing to the contrary). If the Parties agree that GMS Transport Group will proceed to provide the Services, then such provision shall be only on the understanding that any differences in the Order from the Quotation, Order Acknowledgement or Long Term Agreement shall have no effect unless the Parties expressly agree in writing.
2.7 It is Customer's responsibility to ensure that the Quotation, Order and Order Acknowledgement are complete and accurate and to point out to GMS Transport Group in writing anything which is incomplete or inaccurate. Customer shall ensure that the specification for the Services contained in the Long Term Agreement, Quotation or Order Acknowledgement meets its particular requirements.
2.8 Unless GMS Transport Group indicates a contrary method of acceptance in writing, this Contract shall be legally formed and the Parties shall be legally bound when GMS Transport Group despatches its Order Acceptance to Customer. If the Order Acceptance is given orally by GMS Transport Group, the Order Acknowledgement shall be confirmation of the Order Acceptance already given. In any event, the giving by Customer of any delivery instruction shall constitute unqualified acceptance by Customer of these Terms and Conditions.
2.9 Except as expressly provided otherwise in this Contract, no change to this Contract shall be binding unless it is expressly agreed by both Parties and confirmed in writing by GMS Transport Group.
2.10 GMS Transport Group may update these Terms and Conditions from time to time in respect of Contracts that are not yet agreed as at the date of the update.
2.11 GMS Transport Group is not a common carrier. It provides the Services and accepts the Products in relation to this Contract only on the basis of the terms of this Contract.
2.12 Each Order constitutes a separate contract. There may be more than one contract between the Parties in force at the same time as this Contract.
3.1 In consideration for the payment of the Fee and any other sums due by Customer under this Contract, GMS Transport Group shall supply to Customer the Services described in this Contract.
3.2 Unless GMS Transport Group expressly agrees in writing to guarantee an exact delivery time (in which case, GMS Transport Group may charge a higher Fee for giving the higher standard of providing the guarantee), GMS Transport Group shall use its reasonable endeavours to perform its obligations within any timescales set out in this Contract and shall not have any Liability for any delays or failure to accurately perform its obligations:
3.2.1 if it has used those endeavours; or
3.2.2 if caused by an Event of Force Majeure; or
3.2.3 if caused by any failure or delay on the part of Customer or Customer's agents, staff, officers, employees, contractors or customers or by any breach by Customer of this Contract or any other contract between the Parties.
Any timeframe for delivery in a previous contract shall not be an indication of the timeframe for delivery in this Contract.
3.3 Partial delivery or performance shall be permitted. GMS Transport Group may deliver and provide the Products in instalments.
3.4 Delay, default or non-delivery of any instalment by GMS Transport Group shall not affect the remainder of this Contract.
3.5 GMS Transport Group shall inform Customer of the estimated date and time on which the Products will be ready for delivery or collection at their Point of Destination.
3.6 Customer shall ensure that the Recipient is ready for receipt (or, as the case may be, collection) of the Products without undue delay.
3.7 At either the Point of Collection or Point of Destination:
3.7.1 the person delivering the Products with the vehicle shall be responsible for off-loading the Products from the vehicle if they are hand-delivered from the vehicle; or
3.7.2 the person who uses equipment at the Point of Collection or Point of Destination to take the Products off the vehicle shall be responsible for off-loading the Products from the vehicle. The person using that equipment shall also be responsible for all consequences of use of that equipment and shall indemnify and keep indemnified the other Party against any and all losses, costs, expenses, demands, claims and liabilities suffered or incurred by the other Party (including for damage to property or death or personal injury) in relation to the use of that equipment.
3.8 Unless otherwise agreed in writing between the Parties, the person taking receipt of the Products shall conduct basic quality and quantity control checks at the Point of Collection or Point of Destination (as applicable). They shall check that the delivery appears to be in the correct quantity, there is no obvious damage and there is no obvious temperature non-conformity. However, at the time of delivery or collection, neither Party shall be required to conduct more stringent quality control or checks beyond that.
3.9 If GMS Transport Group agrees to provide any services beyond that which it has agreed to provide in this Contract (or beyond that which is customary to provide for such services) including for delivery beyond the expected delivery point at the Point of Destination, such additional services shall be entirely at Customer’s own risk and expense (at GMS Transport Group’s usual rates for providing such services).
3.10 Customer (or Customer’s Recipient) may be required to sign a proof of delivery note and other documentation reasonably required by GMS Transport Group upon delivery of the Products. The signing of any such documentation shall be evidence that the Products have been delivered and in the quantities stipulated in the documentation and that there has been no obvious damage or non-conformity.
3.11 All risk in the Products shall pass to GMS Transport Group upon delivery of the Products to GMS Transport Group at the Point of Collection and then to Customer upon delivery at the Point of Destination, provided that where delivery by GMS Transport Group or collection by Customer is delayed due to a breach by Customer of its obligations under this Contract risk shall pass at the date when delivery would have occurred but for that breach.
3.12 Unless otherwise expressly agreed in writing between the Parties, Customer shall keep the Products insured against risk of loss or damage from the time when the risk passes to GMS Transport Group until it passes to Customer for a value of £1,000 per Transit. If Customer requires more insurance than that, it shall either arrange for its own or request GMS Transport Group to obtain top-up insurance (which GMS Transport Group shall only be bound to do if it expressly agrees in writing and in return for which GMS Transport Group may charge a higher Fee).
3.13 If delivery or collection of the Products is delayed or obstructed through Customer's default or breach of this Contract or if Customer unreasonably declines or delays in accepting or taking delivery or receipt of the Products, then (subject to Clause 6) GMS Transport Group shall not have any Liability as a result and GMS Transport Group may (without prejudice to any other right or remedy available to it) do all or any of the following:
3.13.1 seek to agree with Customer for an alternative time for collection or delivery taking into account GMS Transport Group’s other schedules (in which case, GMS Transport Group may charge the Fee again for each attempted delivery);
3.13.2 require Customer to collect the Products from GMS Transport Group’s premises;
3.13.3 if the Parties have not agreed what to do with the Products by the same time at the next Business Day following GMS Transport Group’s first attempt to discuss the matter with Customer (and also agreed to a timeframe for delivery or collection that GMS Transport Group considers reasonable in the circumstances), decide what to do with the Products (including destroying the Products, or selling the Products and accounting to Customer for the proceeds of sale less GMS Transport Group’s Fee and costs and expenses and loss of profit in relation to the Products and Services) after first having informed Customer of its proposed action;
3.13.4 cancel this Contract as regards any Products that remain to be delivered or collected; and
3.13.5 require Customer to indemnify GMS Transport Group for any and all losses, liabilities, claims, proceedings, judgments, damages, demands, actions, costs, charges, expenses, penalties and fines suffered or incurred by GMS Transport Group as a result of Customer declining or delaying (including taking any action under this Clause 3.13).
4. Customer's Obligations
4.1 Customer shall:
4.1.1 ensure that the packaging is sufficient and suitable for all aspects of GMS Transport Group’s provision of Services and for transport from the Point of Collection to the Point of Destination. The packaging shall in any event accord with any requirements that GMS Transport Group has already made known to Customer;
4.1.2 ensure that the packaging is properly labelled and addressed;
4.1.3 ensure that the Products are of the right size for the Services, do not leak or cause contamination and do not adversely affect or damage any other products or materials (including the vehicle)
4.1.4 ensure that the Services meet its requirements and purposes and are suitable for the Products;
4.1.5 co-operate with GMS Transport Group’s representatives, be present and available at all reasonable times and provide them with all reasonable information and assistance;
4.1.6 not unreasonably detain or retain any vehicle or equipment of GMS Transport Group without GMS Transport Group’s express prior written consent; and
4.1.7 provide proper, adequate, safe, comfortable and suitable environmental and operating conditions at Customer's or Recipient’s premises (including for parking and off-loading any Products from the relevant vehicle).
4.2 Customer acknowledges that if the intended use of the Products is for a time-critical purpose or if the Products are dangerous or have a specific requirement, that is entirely Customer’s responsibility and Customer shall take out sufficient insurance to cover that risk; except to the extent that GMS Transport Group expressly agrees in writing in this Contract to accept that risk or those additional requirements. In any event, in respect of any goods or substances that are or may be (in certain conditions) dangerous, Customer agrees to classify, pack, mark, label and document them appropriately and in any event in accordance with all applicable laws, regulations, bye-laws, codes of practices, licences, permits and authorisations.
4.3 Customer warrants that it is either the owner of the Products or entitled to enter into this Contract in relation to the transport or storage of the Products.
4.4 Without prejudice to any other rights or remedies of GMS Transport Group, GMS Transport Group reserves the right not to provide the Services, or to suspend provision of the Services, if it reasonably suspects that Customer is in breach of or not fully complying with this Clause 4.
4.5 Except to the extent that GMS Transport Group has any Liability, Customer agrees to indemnify and keep indemnified GMS Transport Group against all losses, liabilities, costs, expenses, damages, demands, claims, judgments and fines suffered or incurred by GMS Transport Group caused (directly or indirectly) by the act, omission, error, negligence, fault, default, mistake or wrongdoing of or on behalf of Customer or Recipient or by GMS Transport Group relying on Customer’s information, request, requirement or instruction.
5. Services Warranty
5.1 Subject to the rest of this Clause 5, GMS Transport Group warrants that it shall provide the Services:
5.1.1 with reasonable skill and care;
5.1.2 in the form and of the quantity in which it receives them at the Point of Collection; and
5.1.3 in accordance with the standards described in this Contract and to any compulsory industry-standard requirements, but (unless otherwise agreed in writing between the Parties) no other standard shall apply.
5.2 Customer acknowledges that GMS Transport Group cannot guarantee that the temperature in which the Products are stored will always remain within the range agreed by GMS Transport Group for the duration of time between the Point of Collection and Point of Destination, as GMS Transport Group will need to spend a reasonable amount of time transferring the Products on or off or between vehicles or storage facilities.
5.3 GMS Transport Group is not responsible for any services or products not expressly stipulated in this Contract that GMS Transport Group will provide. Except for any matter upon which GMS Transport Group specifically agrees in writing with Customer to advise or do, GMS Transport Group shall not have any Liability for advising on, or failing to advise on, or doing, or failing to do, anything else.
5.4 GMS Transport Group shall not have any Liability to the extent caused by GMS Transport Group’s compliance with and reliance on Customer's instructions, requirements or requests.
5.5 Customer acknowledges that it is reasonable to make known to GMS Transport Group any complaints over quality or quantity within one Business Day of the time at which the Products are purportedly delivered to the Point of Destination. Customer therefore agrees to make known any such complaint on or before the corresponding time two Business Days after the time at which delivery or collection of the Products purportedly takes place at the Point of Destination. Customer agrees not to make any complaint on or after that time. Customer agrees to make a claim in respect of the relevant Products only if it makes a complaint to GMS Transport Group within the timeframe described in this Clause 5.5.
5.6 GMS Transport Group’s Liability for faulty Services is subject to:
5.6.1 Customer informing GMS Transport Group of any claim promptly upon discovery of the defect or damage in accordance with Clause 5.5, specifying with reasonable detail the way in which it is alleged that the Services do not conform to this Contract;
5.6.2 Customer having provided GMS Transport Group with GMS Transport Group’s delivery note number and such other information and documentation as GMS Transport Group reasonably requires at the same time as the notice in Clause 5.6.1;
5.6.3 Customer showing to GMS Transport Group’s reasonable satisfaction that the problem is solely due to I GMS Transport Group's (or GMS Transport Group’s subcontractors') faulty Services;
5.6.4 the Products having not been misused or subjected to neglect, improper or inadequate care or carelessness either before or after GMS Transport Group’s provision of the Services;
Customer allowing GMS Transport Group ‘s representatives the opportunity to access and inspect the Products; and
5.6.6 Customer having paid for the Fee in full.
5.7 The warranty contained in this Clause 5 is specifically limited to Customer. No warranty is made to any other person, whether subsequent buyer or user or customer, or to any bailee, licensee, assignee, employee, agent or otherwise.
5.8 If Customer makes an invalid claim under the warranty, GMS Transport Group may charge Customer for its fees and costs in dealing with the claim.
5.9 Except where expressly provided for within this Contract, GMS Transport Group excludes all conditions, warranties, terms and obligations, whether express or implied by statute, common law or otherwise, to the fullest extent permitted by law in respect of the Services.
6.1 This Clause 6 prevails over all other Clauses and sets forth the entire Liability of GMS Transport Group, and the sole and exclusive remedies of Customer, in respect of:
6.1.1 performance, non-performance, purported performance, delay in performance or mis-performance of this Contract or of any goods or services in connection with this Contract; or
6.1.2 otherwise in relation to this Contract or entering into this Contract.
6.2 GMS Transport Group does not exclude or limit its Liability for:
6.2.1 its fraud; or
6.2.2 death or personal injury caused by its Breach of Duty; or
6.2.3 any breach of the non-excludable obligations implied by law as to having title to supply goods; or
6.2.4 any other Liability which cannot be excluded or limited by applicable law.
6.3 Subject to Clause 6.2, GMS Transport Group does not accept and hereby excludes any Liability for Breach of Duty other than any Liability arising pursuant to the terms of this Contract.
6.4 Subject to Clause 6.2, GMS Transport Group shall not have any Liability in respect of any:
6.4.1 indirect or consequential losses, damages, costs or expenses;
6.4.2 loss of actual or anticipated profits;
6.4.3 loss of contracts;
6.4.4 loss of use of money;
6.4.5 loss of anticipated savings;
6.4.6 loss of revenue;
6.4.7 loss of goodwill;
6.4.8 loss of reputation;
6.4.9 loss of business;
6.4.10 loss of operation time;
6.4.11 loss of opportunity; or
6.4.12 loss of, damage to or corruption of, data;
whether or not such losses were reasonably foreseeable or GMS Transport Group or its agents or contractors had been advised of the possibility of such losses being incurred. For the avoidance of doubt, Clauses 6.4.2 to 6.4.12 apply whether such losses are direct, indirect, consequential or otherwise.
6.5 Subject to Clauses 6.2 and 6.6, the total aggregate Liability of GMS Transport Group howsoever arising for any one Order shall be limited to the lesser of (i) the limits set out in the “Limitation of Liability” Clause (11) of the Road Haulage Association Limited CONDITIONS OF CARRIAGE 2009 and (ii) £250, but GMS Transport Group shall not have Liability more than once in respect of the same unit of Product.
6.6 If the affected Products under this Contract are not within a Transit (including, for example, due to failure by GMS Transport Group to collect or receive the Products at the Point of Collection) and so Clause 6.5 does not apply, the total aggregate Liability of GMS Transport Group howsoever arising for any one Order shall be limited to the lesser of (i) the limits set out in the “Limitation of Liability” Clause (11) of the Road Haulage Association Limited CONDITIONS OF STORAGE 2009 and (ii) £250, but GMS Transport Group shall not have Liability more than once in respect of the same unit of Product.
6.7 The limitation of Liability under Clauses 6.5 and 6.6 have effect in relation both to any Liability expressly provided for under this Contract and to any Liability arising by reason of the invalidity or unenforceability of any term of this Contract.
6.8 GMS Transport Group shall not have any Liability to the extent caused (directly or indirectly) by the act, omission, error, negligence, fault, default, mistake or wrongdoing of or on behalf of Customer or Recipient.
6.9 In this Contract:
6.9.1 "Breach of Duty"" means the breach of any (i) obligation arising from the express or implied terms of a contract to take reasonable care or exercise reasonable skill in the performance of the contract or (ii) common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty); and
6.9.2 "Liability"" means liability in or for breach of contract, Breach of Duty, misrepresentation, restitution or any other cause of action whatsoever relating to or arising under or in connection with this Contract, including liability expressly provided for under this Contract or arising by reason of the invalidity or unenforceability of any term of this Contract (and for the purposes of this definition, all references to this ""Contract"" shall be deemed to include any collateral contract).
7.1 Customer shall pay to GMS Transport Group the Fee and other sums due under this Contract.
7.2 Except to the extent otherwise provided in the Quotation or Long Term Agreement or otherwise agreed by GMS Transport Group in writing, Customer shall pay GMS Transport Group for the Fee and any other sums due under this Contract in advance of GMS Transport Group’s provision of the Services.
7.3 Where GMS Transport Group agrees in writing to extend any credit terms to Customer:
7.3.1 unless otherwise expressly agreed in writing by GMS Transport Group, all payments shall be made within 30 days of the date of GMS Transport Group’s invoice; and
7.3.2 such credit terms shall be subject to any particular credit limits stipulated in writing by GMS Transport Group from time to time and may also be withdrawn by GMS Transport Group without notice.
7.4 Where GMS Transport Group requires any of the Fee to be paid in advance of the Services, provision of the Services is conditional on GMS Transport Group first receiving the advanced Fee and any other sums due in cleared funds in full from Customer.
7.5 All Fees and sums due under this Contract are exclusive of any value added tax or other sales, import and export duties or taxes (if applicable) which shall be payable in addition at the same time as payment of the Fee and other sums due.
7.6 Customer shall pay GMS Transport Group by any payment method reasonably stipulated by GMS Transport Group.
7.7 Unless otherwise stipulated in this Contract or agreed in writing between the Parties, payment shall be in the currency in force in England from time to time.
7.8 Time for payment shall be of the essence.
7.9 Payment shall be deemed made when GMS Transport Group has received cleared funds in full.
7.10 Payment of all sums due to GMS Transport Group under this Contract shall be made by Customer in full without any set-off, deduction or withholding whatsoever.
7.11 If Customer is late in paying any part of any monies due to GMS Transport Group under this Contract or any other agreement between the Parties, GMS Transport Group may (without prejudice to any other right or remedy available to it whether under this Contract or by any statute, regulation or bye-law) do either or both of the following:
7.11.1 charge interest on the amount due but unpaid at the annual rate of interest set under Section 6 of the Late Payment of Commercial Debts (Interest) Act 1998 from time to time from the due date until payment (after as well as before judgment), such interest to run from day to day and to be compounded monthly; and
7.11.2 suspend the performance of this Contract and any other agreement between the Parties until payment in full has been made.
8.1 GMS Transport Group shall have a:
8.1.1 particular lien on the Products in respect of which GMS Transport Group provides the Services under this Contract; and
8.1.2 general lien against Customer for sums unpaid on any invoice, account or contract whatsoever.
8.2 If the lien (whether particular or general) is not satisfied within a reasonable time, GMS Transport Group may sell any or all of the Products as agent for the owner and apply the proceeds towards any sums unpaid and the expenses of the retention, insurance and sale of the Products and GMS Transport Group shall (upon accounting to Customer for any balance remaining) be discharged from all Liability whatsoever in respect of the Products.
9. Term and Termination
9.1 This Contract shall commence when it becomes legally binding in accordance with Clause 2.8 and, unless terminated earlier by either Party exercising any right of termination as set out in this Contract, shall continue in force until the later of:
9.1.1 Customer having paid for the Fee and all sums in full; and
9.1.2 GMS Transport Group having provided all the Services to Customer.
9.2 Either Party may terminate this Contract immediately by notice in writing to the other Party if:
9.2.1 the other Party is in persistent breach of any of its obligations under this Contract or any other agreement between the Parties; or
9.2.2 the other Party is in material breach of any of its obligations under this Contract or any other agreement between the Parties which is incapable of remedy; or
9.2.3 the other Party fails to remedy, where capable of remedy, any material breach of any of its obligations under this Contract or any other agreement between the Parties after having been required in writing to remedy such breach within a period of no less than 30 days; or
9.2.4 the other gives notice to any of its creditors that it has suspended or is about to suspend payment or if it shall be unable to pay its debts (within the meaning of Section 123 of the Insolvency Act 1986), or an order is made or a resolution is passed for the winding-up of the other Party or an administration order is made or an administrator is appointed to manage the affairs, business and property of the other Party or a receiver and/or manager or administrative receiver is appointed in respect of all or any of the other Party's assets or undertaking or circumstances arise which entitle the court or a creditor to appoint a receiver and/or manager or administrative receiver or administrator which entitle the court to make a winding-up or bankruptcy order or the other Party takes or suffers any similar or analogous action in consequence of debt.
9.3 Termination of this Contract shall be without prejudice to any accrued rights or remedies of either Party.
9.4 Termination of this Contract will not affect the coming into force or continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after such termination.
9.5 Upon termination of this Contract for any reason:
9.5.1 GMS Transport Group shall cease to perform this Contract; and
9.5.2 all outstanding Fees and any other sums shall become immediately payable, whether invoiced or not.
10. Force Majeure
10.1 Neither Party shall have any Liability for any breach, hindrance or delay in the performance of this Contract attributable to any cause beyond its reasonable control, including any act of God, actions or omissions of third parties not in the same group as the Party seeking to rely on this clause (including hackers, suppliers, highway authorities, couriers, governments, quasi-governmental, supra-national or local authorities), insurrection, riot, civil war, civil commotion, war, hostilities, threat of war, warlike operations, armed conflict, imposition of sanctions, embargo, seizure or forfeiture, breaking off of diplomatic relations or similar actions, national emergencies, terrorism, nuclear, chemical or biological contamination or sonic boom, piracy, arrests, restraints or detainments of any competent authority, blockade, strikes or combinations or lock-out of workmen, unusual traffic volumes, epidemic, fire, explosion, storm, flood, drought, adverse weather conditions (including cold, heat, wind, rain, snow, ice or fog), earthquake, volcano, natural disaster, accident, collapse of building structures, failure of machinery (other than used by the relevant Party) or third party computers or third party hardware, failure or problems with public utility supplies (including general: electrical, telecoms, water, gas, postal, courier, communications or Internet disruption or failure), shortage of or delay in or inability to obtain supplies, stocks, storage, materials, equipment or transportation (""Event of Force Majeure"").
10.2 Each Party agrees to inform the other upon becoming aware of an Event of Force Majeure, such notice to contain details of the circumstances giving rise to the Event of Force Majeure.
10.3 The performance of each Party's obligations shall be suspended during the period that the circumstances persist and such Party shall be granted an extension of time for performance equal to the period of the delay.
10.4 Each Party shall bear its own costs incurred by the Event of Force Majeure (including, in the case of GMS Transport Group, the costs of re-performing the Services when performance becomes reasonably possible).
10.5 Should any performance of obligations be delayed under this Clause 10, each Party shall nevertheless accept performance as and when the other shall be able to perform.
10.6 Each Party shall act reasonably if it is affected by the Event of Force Majeure, including reasonably co-operating with the other Party’s request to provide or receive Services.
10.7 If the Event of Force Majeure continues without a break for more than one week, either Party may terminate this Contract immediately by notice to the other, in which event neither Party shall have any Liability by reason of such termination (except that GMS Transport Group shall refund any Fee paid in advance to GMS Transport Group for the Services not performed due to the Event of Force Majeure).
10.8 If GMS Transport Group has contracted to provide identical or similar services to more than one customer and is prevented from fully meeting its obligations to Customer by reason of an Event of Force Majeure, GMS Transport Group may decide at its absolute discretion which contracts it will perform and to what extent.
11.1 Any notice required or authorised to be given under this Contract shall be in writing and may be served by personal delivery or by overnight courier or by facsimile addressed to the relevant Party at its address stated in this Contract or at such other address or facsimile number as is notified by the relevant Party to the other for this purpose from time to time or at the address or facsimile number of the relevant Party last known to the other.
11.2 Any notice so given by post shall be deemed to have been served two Business Days after the same shall have been posted by overnight courier and any notice so given by facsimile shall be deemed to have been served upon receipt of an answerback signal from the receiving machine, and in proving such service it shall be sufficient to prove that the letter or facsimile was properly addressed or numbered and, as the case may be, despatched or an answerback signal received.
12.1 Subject to any assignee (in the case of an assignment) confirming in writing to be bound by the provisions of this Contract, GMS Transport Group may assign, transfer, novate or subcontract its rights, liabilities or obligations under this Contract either in whole or in part to any other person, firm or company. GMS Transport Group shall promptly give notice to Customer of any such assignment, transfer or novation.
12.2 Customer shall not (or purport to) assign, transfer, novate, charge or otherwise encumber, create any trust over or deal in any manner with this Contract or any of its rights, liabilities or obligations under this Contract without the prior written consent of GMS Transport Group (such consent not to be unreasonably withheld or delayed).
13.1 Unless a Party expressly states in writing that it is waiving a particular power, right or remedy in a particular stated instance, no failure or delay or omission by either Party in exercising any power, right or remedy under this Contract or at law shall operate as a waiver of such power, right or remedy; and no waiver in any particular instance shall extend to or affect any other or subsequent event or impair any powers, rights or remedies in respect of it or in any way modify or diminish that Party's other powers, rights or remedies under this Contract or at law.
13.2 If any Clause or other provision in this Contract shall become or shall be declared by any court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall in no way affect any other Clause or provision or part of any Clause or provision, all of which shall remain in full force and effect.
13.3 Nothing in this Contract shall create or be deemed to create a partnership, an agency or a relationship of employer and employee between the Parties.
13.4 A person who is not a Party to this Contract has no rights under any law to enforce any term of this Contract.
13.5 This Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law. The Parties irrevocably agree that the English courts shall have exclusive jurisdiction to settle any dispute or claim brought by Customer arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims). Nothing in this Clause 13.5 shall limit the right of GMS Transport Group to take proceedings against Customer in any other court of competent jurisdiction. All dealings, correspondence and contacts between the Parties shall be made or conducted in the English language.
Version: 002. Mar 2017