Supplier T&Cs
Principal
DEFINITIONS & INTERPRETATION
In these Supplier T&Cs, the following words shall have the following meanings:
Agreement means this agreement which comprises of and which all Goods and/or Services provided by the Supplier shall be subject to;
the Order Confirmation; and
the Supplier T&Cs of the Company herein contained;
Applicable Law means all laws, legislation, statutes, regulations, requirements and other enactments applicable to the provision of the Goods and/or Services;
Blended Products means the Products after the provision of blending services by the Supplier;
Blended Services means providing services according to the Specification to create Blended Products.
Control means, in relation to any entity:
the right to exercise, directly or indirectly, more than 50 per cent. of the voting rights attributable to the management of that entity; and/or
the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of that entity;
Customers means the customers with whom the Company has entered into agreements for the provision of certain logistics and/or ancillary services;
Customs Authority means an authority or government agency that is responsible for the administration and application of the laws relating to the importation, exportation, movement or storage of products and the collection of duties and taxes;
Customs Clearance means the completion of customs formalities by the Supplier in relation to the importation, exportation, movement and/or storage of the Products;
Customs Services means, where required, the customs services in respect of the Products, including Customs Clearance and use of the Supplier’s customs bond, if applicable, and as may further be detailed in the Order Confirmation;
Company means Reload Logistics FZCO and / or any of its Group, as may be contained in the Order Confirmation;
Delay Charges means the amount that the Supplier shall be liable for to the Company if the Goods or Products are not delivered within the time limits for delivery set out in the Order Confirmation for loss and damage resulting from such delay, subject to a maximum of a sum equal to twice the amount of the Prices in respect of the delayed Goods or Products, failing stipulation in the Order Confirmation at 5% of the Price, per delay day;
Duration means the duration of this agreement which shall commence on the Start Date and shall, subject to the rights of earlier termination set out herein, remain in force during the provision of all Goods and / or Services to the Company until terminated by either Party giving the other party not less than one month’s notice;
Executive Authorization means agreement by the Parties in writing and signed by a duly authorized representative of each of the Parties which must include two authorized representatives of the Company.
Force Majeure includes official or unofficial industrial action, industrial sabotage, industrial dispute (in each case, whether or not relating to that Party’s workforce), fire, shortage of, inability or delay in obtaining fuel, supplies, labour, materials or services, acts of God, acts of war, terrorism, shortage of fuel, software defects or failures, epidemics, pandemics, abnormal weather conditions, a court order or injunction-including arising as a result of third party claims and other events which are beyond a Party’s reasonable control and, without derogating from the generality of the foregoing, which include, but are not limited to:
war, invasion, acts of foreign enemies, hostilities or warlike operations (whether war be declared or not), civil war, rebellion, revolution, insurrection, civil commotion assuming the proportions of or amounting to an uprising, military or usurped power; or
any act of terrorism (For the purpose of this endorsement an act of terrorism means an act, including but not limited to the use of force or violence and / or the threat thereof, of any person or group(s) of persons, whether acting alone or on behalf of or in connection with any organization(s) or government(s), committed for political, religious, ideological or similar purposes including the intention to influence any government and/or to put the public, or any section of the public, in fear);
any epidemic or pandemic;
law or act of Government or statutory authority.
Goods means any goods of any nature whatsoever in respect of which the Supplier provides the Services, and includes without limitation, where applicable, the Products, materials, any container, assets, commodity, pallet, package, parcel, packaging, cargo, equipment used in connection with or in relation to such goods.
Group means, with respect to a Party, that Party and any entity Controlled by, Controlling or under common Control with that Party;
Holding Certificate means a certificate issued by the Supplier in respect of the Products stored at the Storage Facility, which shall be in the standard format of the Company (as amended from time to time) or any other form as may be acceptable to the Company;
Order Confirmation means the order(s) issued by the Company in whichever form contained (including emails, service contracts, and accepted quotations) stipulating the nature of the Goods and/or Services, price, and if applicable, time for performance;
Owner means the owner of the Products and any other person who at any time has or may have an interest in them (and shall be deemed to include the Customer);
Parties means the Company and the Supplier and Party means either of them respectively as the context may indicate;
Payment Terms means the payment terms stated in the Order Confirmation, being the amount of Business days after which invoices raised by the Supplier shall be due for payment, after receipt by the Company, failing stipulation in an Order Confirmation, 30 days after receipt of the relevant invoice;
Prices means the prices payable for the Goods and/or Services as set out in the Order Confirmation. The Prices are inclusive of value added tax and all other applicable taxes and duties unless specifically stated otherwise. Failing stipulation in the Order Confirmation prices shall be at the prevailing rate offered by the Company;
Product means the Goods and/or Services as described in the Order Confirmation and/or in terms of which the Service is provided;
Sanctions means any sanction, prohibition, restriction or penalty (or any risk of any sanction, prohibition, restriction or penalty) whatsoever imposed by any state, country, international governmental organisation or other relevant authority, including the United Nations, European Union, United Kingdom or United States of America;
Services mean the services provided by the Supplier including, without limitation, logistics and supply chain and freight forwarding solutions, such as handling, transportation, consolidation, forwarding, clearing, receipt, warehousing, Blending Services, arranging insurance, courier, storage, dispatch of Goods, negotiating and arranging services upon request or where required, issuing of transport documents in respect of carriage of Goods and/or Products, the clearing and forwarding of the Goods, organizing for the collection of Goods where required, the release of the Goods against presentation of the appropriate documents and information, consolidation of documents and costings, and any related and ancillary services in respect of the services and the providing of advice and information relating thereto, to be provided by the Supplier pursuant to the Agreement as may be further detailed in the Order Confirmation;
Specification means the identification of requirements for Blending Services;
Supplier means you, the party who is accepting this Agreement, by and through, the provision of the Goods or Services to the Company and/or its Customer(s) and any other party who in whole or part is involved in the delivery of the aforementioned Services;
Supplier Personnel means all personnel of the Supplier involved in the provision of Goods and/or performance of Services under the Agreement;
Start Date means the date on which the Supplier commences the provision of the Goods and/or Services;
Storage Facility means the storage facility as set out in the Order Confirmation and/or where the Product is stored, if applicable;
Transport Unit means a trailer, wagon or any other device used for the carriage of Goods by road or rail or other conveyance;
Weight / Quantity means the number of gross metric tons and/or number of net metric tons and/or number of bags and/or number of bundles of Products as set out in the Order Confirmation and/or declared by the Company.
Clause headings are for convenience of reference only and shall have no effect on the interpretation of the Agreement. Unless the context otherwise requires, a reference to a Clause in these Supplier T&Cs is to a clause of these Supplier T&Cs. Any substantive provision shall have full force and effect regardless of the fact that it may be contained in a definition.
The documents comprising this Agreement shall be read as one document. In the event of any ambiguity, inconsistency or a conflict between the provisions of any of the documents comprising the Agreement, the documents take precedence in the order they appear in the definition.
A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time, and shall include all subordinate legislation made from time to time under that statute or statutory provision.
In the Agreement, unless the context otherwise requires:
words in the singular shall be deemed to include the plural and vice versa;
words importing any particular gender shall include all other genders;
references to a person shall include natural persons and bodies of persons whether corporate or incorporate;
the words include or including shall be deemed to have the words “without limitation” following them; and
a reference to writing or written includes email (provided the email is sent in accordance with Clause 13.1).
Compulsory legislation
If an international convention or national law applies compulsorily to any element of the provision of Goods and/or Services (Compulsory Legislation), the Agreement shall, as regards such element of the Goods and/or Services, be read as subject to such Compulsory Legislation and nothing in this Agreement shall be construed as a surrender by the Company of any of its rights under such Compulsory Legislation.
If any part of this Agreement is to any extent inconsistent with any Compulsory Legislation which cannot be departed from, such part of the Agreement shall as regards such element be overridden to that extent and no further.
APPOINTMENT OF THE SUPPLIER
The Supplier confirms that it possesses the necessary resources as well as the experience and know-how in order to provide the Goods and / or carry out the Services and has agreed to provide the Goods and/or Services in accordance with the terms and conditions of the Agreement. The Supplier's appointment is non-exclusive and nothing in the Agreement will prevent the Company from appointing other persons to provide Goods or services of a same or similar nature to the Goods and/or Services.
The Company does not undertake or warrant that it will tender any minimum requests for Goods and /or Services to the Supplier or purchase any minimum orders from the Supplier during the term of the Agreement.
OBLIGATIONS OF THE SUPPLIER
During the term of the Agreement, the Supplier warrants and undertakes as a continuing obligation that:
it shall:
ensure that any Goods and/or Services that are provided are free from defect and fit for purpose
provide Services with all due care, diligence, skill and judgment and in accordance with the Company's instructions;
comply with all Applicable Laws, including any statutory requirements applicable to the employment of all Supplier Personnel;
ensure that all the equipment used whatsoever for and in connection with the provision of the Services shall be of a good standard, in good working order, properly maintained and suitable for use in connection with the provision of the Services;
ensure that any Transport Units used in the provision of the Services shall be fit for purpose and properly maintained and suitable for use in connection with the provision of Goods and Services ;
engage appropriately experienced, skilled and trained Supplier Personnel;
maintain, at its own cost, such licences, approvals and permits as are required by Applicable Law and necessary for the proper provision of the Goods and/or Services; and
ensure it has sufficient capacity and resources at all times to provide the Goods and/or Services that are set out in an Order Confirmation;
at all times perform the Services in compliance with the Customer policies, procedures, and rules – available upon request or found here and in the case of Transport Services, also in compliance with the Company’s Haulier Minimum Requirements
no payment or other transaction relating to the Goods and/or Services will or might expose the Company or any of its officers, employees, servants, agents or insurers to any Sanctions or any other breach of Applicable Law.
The Supplier shall implement, operate and maintain all necessary equipment and information technology for the performance of the Services, and all such equipment and information technology shall be of a good standard, in good working order, properly maintained and suitable for use in connection with the provision of the Services.
Time is of the essence in relation to any performance dates agreed between the Parties for the provision of the Goods and/or performance of the Services.
To ensure that the performance of the Services is not delayed or impeded, the Supplier shall request from the Company any information that is required by the Supplier to provide the Services in accordance with the terms of the Agreement, including (as the case may be):
in respect of the Transport Services, the means, route and procedure to be followed (which, in each case, shall be at the absolute discretion of the Company);
in respect of any blending performed as part of the Warehousing Services, any clarification required in relation to the Specification provided under Clause 4.1(c)(i) and/or additional information required to provide the Blending Services;
in respect of Customs Services, any and all information and documentation required in respect of the Products and the transaction (including information as to the Products' physical characteristics), the valuation of the Products and any other information specific to the Products in order for the Supplier to make a complete, accurate and timely Customs Clearance declaration for any and all of the Products,
and the Company shall use reasonable endeavours to provide such information.
SERVICES
Services subject to the Agreement only
The Services provided by the Supplier will, without exception be subject to the Agreement, which Agreement shall apply to the exclusion of any other terms and condition, including without limitation any other general or standard trading terms and conditions of the Supplier or owner of the Goods and/or third party agreements, including any contractor or subcontractor terms, unless otherwise specifically agreed in writing by the Company and which agreement is subject to Executive Authorization and signed by both the Company and the Supplier’s duly authorized representatives.
Warehousing
Where the Supplier provides warehousing , the following provisions shall apply:
on receipt of any Products, the Supplier will weigh the Products using the method stated in the Order Confirmation (failing stipulation, by weighing gross metric tons) and carry out an external check on the condition of the Products, and the warehouse receipt / Goods receipt (or equivalent document called by any other name) (Receipt Document) shall be endorsed with details of any apparent problems. Failure to endorse the delivery note shall be prima facie evidence of the Supplier taking the Products in good condition and that the weight, number of packages, their marks and numbers correspond with the statements in the Receipt Document;
upon termination of the Agreement for whatever reason, the Supplier shall arrange for all Products at the Storage Facility to be delivered to the location(s) notified by the Company as soon as possible (but in any event no later than the date of termination of the Agreement).
Blending Services
Where the Supplier provides Blending Services as part of warehousing, the following provisions shall apply:
the Company shall provide the relevant Specification to the Supplier prior to the Blending Services being required and the Supplier shall blend the Products in accordance with such Specification;
the Company may reject any Blended Products that do not comply with the Specification in any respect (Defective Products). If the Company rejects Defective Products the Company shall, in its sole discretion, be entitled to demand that the Supplier:
takes corrective action to rectify such non-compliance (at the Supplier's cost); or
pays to the Company an amount equal to higher of the cost of the Products before blending or the market value of the unblended Products calculated at the date of blending, together with carriage charges, customs duties and taxes and other charges incurred in respect of the Products prior to the blending services.
No charges shall be payable for any Blending Services provided in respect of any Defective Products.
Holding Certificates
The Company may request that the Supplier issues Holding Certificates confirming that the Products are stored at the Storage Facility and held to the order of the Depositor or the Bank (as appropriate and, in each case, as defined in the relevant Holding Certificate).
Where the Supplier is required to issue a Holding Certificate pursuant to Clause 4.1(d)(i):
the Supplier shall issue each Holding Certificate upon receiving written instructions from the Company;
once a Holding Certificate has been issued by the Supplier, the Supplier undertakes that it shall only move, release or dispose of the Products with the written authority of the Depositor or the Bank (as appropriate and, in each case, as defined in the relevant Holding Certificate).
Transport
Where the Supplier provides transport, it shall, at its own expense and for the duration of the Agreement, obtain and maintain in force, DPS Certification and 24-hour-tracking with a reputable tracking service provider as well as remover of Goods in bond License (or local equivalent).
The Transporter shall at all times be responsible for ensuring that no overloading takes place.
on receipt of any Products, the Supplier will weigh the Products using the method stated in the Order Confirmation (failing stipulation, by weighing gross metric tons) and carry out an external check on the condition of the Products, and the packing list / Goods receipt (or equivalent document called by any other name) (Receipt Document) shall be endorsed with details of any apparent problems. Failure to endorse the Receipt Document shall be prima facie evidence of the Supplier taking the Products in good condition and that the weight, number of packages, their marks and numbers correspond with the statements in the Receipt Document.
Customs Services
Where the Supplier provides Customs Services, the following provisions shall apply:
the Supplier shall make due reference to the information provided on the Products when making Customs Clearances;
the Supplier shall seek clarification from the Company where any information pertaining to any Customs Clearance is unclear or incomplete, and the Supplier shall only submit a Customs Clearance when it is satisfied it has sufficient information to do so correctly and accurately, unless instructed differently by the Company;
where applicable, the Supplier shall adhere to the general guidance (if any) provided by the Company in respect of specific customs regimes, procedures and processes applicable to the Products;
subject to Applicable Law, either Party will notify the other Party immediately upon receipt of any of the following types of communication or request from a Customs Authority in respect of the Customs Services, the Products, the Company or Owner’s business or a specific transaction relating to the Company or Owner, which are to be regarded by the Parties as outside the normal course of business, including investigations and audits, notice of violations, requests for visits or interviews, seizures of Products, voluntary disclosures, surveys or questionnaires (the Specified Circumstances);
at no time shall the Supplier:
perform any deed or action, which contravenes any Applicable Law, including any supranational or international conventions, and the Supplier shall consult with its legal advisers in any of the Specified Circumstances; or
hinder or delay any lawful access, request, inspection or the serving of documents, warrants, affidavits or subpoenas in any of the Specified Circumstances.
PRICES AND PAYMENT TERMS
Unless the Parties agree otherwise in writing, the Prices shall be fixed for the term of the Agreement. The Prices shall be the full and exclusive remuneration of the Supplier in respect of the Goods and/or Services.
The Supplier shall issue an invoice for the Goods and/or Services in arrears (for Transport Services this shall mean after full supporting documents including but not limited to original PODs have been received by the Company). All invoices shall be submitted no later than:
in relation to Warehousing Services, 30 calendar days from the end of the month to which the invoice relates;
in relation to all other Goods and Services, 60 calendar days from the date on which the Goods and/or Services were rendered.
If the Supplier fails to submit an invoice to the Company within this period any such amounts not invoiced shall not be payable by the Company and shall be irrevocably waived by the Supplier. The Supplier's invoices raised pursuant to, and in accordance with, this Clause 5.2 shall (subject to the remainder of this Clause 5) be due for payment within the Payment Terms.
Without limiting its other rights and remedies under the Agreement, the Company may set-off any amount owed to it by the Supplier under the Agreement or otherwise against any amount payable by the Company to the Supplier under the Agreement or otherwise. In addition, the Company may withhold payment of any amounts due to the Supplier pending finalisation of any claim it may have against the Supplier, regardless of whether the amount being withheld relates to the Goods and/or Services giving rise to the claim.
If the Company disagrees with the amount of, or any amounts within, any invoice submitted by the Supplier, the Company shall pay the amount of the invoice that is payable and not disputed in accordance with the provisions of Clause 5.2 and shall provide its justification for disputing the amount of, or any amounts within, the invoice in writing within the Payment Term. The Company and the Supplier shall endeavour to resolve the dispute in accordance with Clause 13.13. Following resolution of the dispute any amount agreed or found to be payable by the Company shall be paid in accordance with Clause 5.2.
In the event that the Supplier commits any act of insolvency or enters into any form of business rescue, the Company shall be entitled but not obliged, to set-off any amounts due to the Supplier against any amounts due to it or claims it may have against the Supplier, which election shall be deemed to have preceded the date of the act of insolvency and or date of entering into liquidation or business rescue.
The Supplier shall have:
no right of ownership in the Products and shall not exercise any lien, encumbrance or charge over any of the Products or equipment owned, operated or used by the Company or the Owner for any sums whatsoever due at any time to the Supplier under the Agreement or otherwise; and
no right whatsoever to retain, sell or otherwise dispose of the Products or equipment owned, operated or used by the Company or the Owner,
and, to the fullest extent permitted by Applicable Law, the Supplier irrevocably waives all present and future rights of lien, encumbrance, charge, retention or sale it may have as a matter of any Applicable Law. The Supplier shall keep the Company indemnified against all liabilities howsoever assumed, incurred or suffered by the Company as a result of or in connection with any breach of this Clause 5.6.
RECORDS
The Supplier shall maintain records as required by Applicable Law, a regulatory or governmental body seeking records in relation to an Applicable Law, and prepare and retain such documents, reports and systems entries (Records) as are customarily kept in relation the provision of the Goods and/or performance of the Services in each case for the longer of (i) 5 years from the date of creation or generation, and (ii) any retention requirement imposed by Applicable Law, provided that in respect of any Records relating to a claim or dispute, such Records shall be retained until such time as that claim or dispute has been finally resolved.
The Company may, from time to time, request copies of any Records relating to the Goods and/or Services as may be required by the Company, and the Supplier shall provide them to the Company within 10 calendar days of such request, or as required by a regulatory or governmental body.
The Company may, from time to time, by a minimum of 48 hours prior written notice to the Supplier, request access to the Supplier's premises for the Company or the Company’s independent appointed representative(s) to conduct an inspection of the Products, or audit any Records relating exclusively to the Services, for the purpose of ensuring that the Services are being provided in accordance with the terms and conditions of the Agreement. Any such inspection or audit shall be performed during normal office hours, and the Company shall use its reasonable endeavours to ensure that such inspections or audits do not interfere with the provision of the Services. The Supplier shall provide all reasonable assistance to the Company when performing such inspections or audits.
LIABILITY
The Supplier’s liability in respect of the Goods and/or Services shall be determined in accordance with the provisions of this Clause 7.
No warranty or representation, expressed or implied, is made by the Company in relation to the description, fitness, condition, weight or quantity of the Products and the Supplier shall be solely responsible for checking the description, fitness, condition, weight and quantity of any Products provided in respect of the Services. Without prejudice to the foregoing, if the Company is nevertheless found liable for the description, fitness, condition, weight or quantity of the Products, its liability to the Supplier howsoever arising (including negligence) shall be limited to any amount actually recovered by the Company from the relevant Customer in respect of such liability).
The Supplier shall be liable for, and promptly indemnify the Company against, all costs (including the costs of investigating and defending any claims), expenses, transport fees, claims, losses, liabilities, orders, awards, fines, VAT and duties, proceedings and judgements of whatsoever nature howsoever assumed, incurred or suffered by the Company, its sub-contractors or any member of the Company’s Group, their respective employees, servants, agents, insurers or reinsurers as a result of or in connection with any of the following:
the negligence, wilful misconduct, breach of duty or breach of contract of or by the Supplier or any person it is vicariously liable for or its employees, agents, representatives, and/or sub-contractors - including any breach by the Supplier or the aforementioned persons of any of the warranties or undertakings given or obligations undertaken by the Supplier under the Agreement;
the Company becoming liable to any other party (including the Owner and/or any revenue authority) by reason of any loss, contamination of, damage to or mis-delivery of the Products;
the loss of or damage to Product after it is placed in the custody of the Supplier, regardless of the cause, as such including but not limited to loss or damage cause by criminal involvement and the like. For the avoidance of doubt – the Supplier accepts total liability for any loss occasioned by an instance of theft where the Suppliers employee, agent or representative was involved – without any recourse to contributory negligence or misconduct.
CLAIMS HANDLING
The Supplier shall immediately notify the Company in the event of any incident which may lead to, or has resulted in, a claim arising out of or in connection with the Goods and/or Services and will give to the Company, its insurers and/or the Owner’s insurers any information and assistance that the Company, its insurers and/or the Owner’s insurers may require in respect of such claim. The Supplier shall use its best endeavours to mitigate any loss arising in connection with the Goods and/or Services.
INSURANCE & CERTIFICATION
During the term of the Agreement, the Supplier shall, at its own expense, maintain in force policies of insurance with a reputable insurer as may be reasonable or required by Applicable Law, including:
third party liability insurance, including liability for death or injury to persons and loss or damage to third party property and fines, penalties, taxes and other similar costs and expenses with a limit of at least USD 2,000,000.00 per event or, if a higher amount, such amount as may be required by Applicable Law;
employer's liability insurance with a limit of USD 500,000.00 arising from a single event or series of related events in a year or, if a higher amount, such amount as may be required by Applicable Law;
where the Supplier provides Transport Services insurance covering liabilities for loss, contamination, mis-delivery of, and damage to, Products or delay in the provision of the Services with a limit of at least USD 500,000.00 per event – including cover for negligence and misconduct as well as criminal involvement of its staff, agents, representatives or sub-contractors;
where the Supplier provides Transport Services involving the carriage of Goods by road, vehicle third party insurance with a limit of at least USD 500,000.00 per event or, if a higher amount, such amount as may be required by Applicable Law;
where the Supplier provides Customs Services, errors and omissions insurance and liability insurance with a limit of at least USD 250,000.00 per event; and
any other insurance as may be required by Applicable Law or to cover the Suppliers liability in terms of these T&Cs.
The Supplier shall, on the Company's request, provide copies of the policy documents of the insurances maintained in accordance with Clause 9.1, and shall perform any obligation required of it under such insurance. The Supplier shall immediately notify the Company of any cancellation, termination, suspension, revocation or material amendment in cover of any such insurance.
The Supplier shall be responsible for the payment of all deductibles and premiums linked to the insurances required by this Clause 9.
No insurances or the limits of such insurances (even if in terms of the above) shall be construed in any way as a limit of the Supplier's liability.
Under no circumstances shall the Supplier deny or reject compensation to the Company on the grounds of no insurance, insufficient insurance or the rejection of claim by their insurer.
FORCE MAJEURE
Subject to the remaining provisions of this Clause 10, neither Party shall be liable to the other for any delay or non-performance of its obligations under the Agreement to the extent that such non-performance is due to a Force Majeure.
In the event that either Party is delayed or prevented from performing its obligations under this agreement by a Force Majeure, such Party shall:
give notice in writing of such delay or prevention to the other Party as soon as reasonably possible, stating the commencement date, the extent of such delay or prevention, the cause thereof and its estimated duration;
use best endeavours to mitigate the effects of such delay or prevention on the performance of its obligations under the Agreement, including recourse to alternative acceptable sources of services, equipment and materials; and
use best endeavours to ensure the earliest possible resumption of normal performance of this Agreement after the occurrence of a Force Majeure and perform its obligations hereunder and thereunder to the maximum extent practicable.
No relief shall be granted to a Party pursuant to this Clause 10 to the extent that such failure or delay in performance would have nevertheless been experienced by such Party had the relevant Force Majeure not occurred.
If a Force Majeure continues for 31 consecutive days or 2 cumulative months within a 12 month period, the Company may, but shall not be obliged to, terminate this Agreement or any part of the Services immediately by notice in writing to the Supplier.
ANTI BRIBERY
The Supplier agrees, confirms and undertakes that:
it has not and will not, and none of its employees, officers, directors, contractors, sub-contractors and agents has or will, directly or indirectly, pay, give, deliver, receive or agree (or undertake to pay, give, deliver, receive or agree) any bribe, pay-off, kick-back, gift, gratuity, commission, amount or other thing of value, or any interest-free loans, contributions or donations, in any way or form and whether in local or foreign currency, in the country where the Goods and/or Services are provided or any other place where such conduct relates to the Agreement, in each case in violation of any Applicable Laws, including any applicable anti-corruption legislation or similar legislation to any person including any government officials or employees, political parties, political party officials or political candidates or third persons with influence over government officials or employees; and
it has and shall maintain in place an ethics or compliance program which implements internal procedures to prevent and detect violations of Applicable Laws, and to promote ethical behaviour by and within its organisation and business.
TERMINATION
Without prejudice to any accrued rights and remedies under the Agreement, the Agreement may be terminated immediately by either Party by written notice to the other Party if the other Party:
commits a material breach of any of its obligations under this Agreement which is not capable of being remedied;
if the other Party commits any material breach of any of its obligations under the Agreement, which it fails to remedy within 14 calendar days of the date of service of a written notice specifying the breach (or such longer period as the notice may specify);
if the other Party enters into liquidation or administration or business rescue or any local equivalent of the foregoing, whether compulsory or voluntary otherwise than for the purpose of amalgamation or reconstruction or compound with its creditors or has a receiver (including an administrative administrator, trustee or similar officer) appointed over all or part of its assets or its undertaking or part thereof or if it shall make any composition or arrangement with its creditors or if any action, application, petition or proceeding shall be initiated relating to any of the above matters or to any inability to pay debts or to credit worthiness or if it is unable to pay its debts.
MISCELLANEOUS
Notice
Any notice given by either Party to the other in connection with any matter relating to the Agreement shall be in writing and in English and shall be sent to the relevant Party at the address set out in the Order Confirmation, failing which to the registered addresses respectively.
Notices may be given, and are deemed received:
by hand against signature for receipt, on the date of its receipt; or
by email, on delivery to the correct addresses at the address set out in the Order Confirmation, provided the email has in addition been sent to legal@reloadlogistics.com and each of these email addresses acknowledges receipt of the email or has returned a read receipt.
Assignment
Subject to Clauses 13.2(b) and 13.2(c), neither Party shall assign, transfer or sub-contract any of its rights and obligations under the Agreement in whole or in part or the benefit thereof or its rights thereunder without the other Party’s prior written consent (such consent not to be unreasonably withheld or delayed).
The Supplier may sub-contract some of the Services, provided it has received the prior written consent of the Company signed by at least two directors. Any sub-contractor must be pre-screened by the Supplier to ensure that it meets and can meet, as a minimum, the requirements and obligations set out in this Agreement. To the extent any of the Supplier’s obligations under this Agreement are sub-contracted or otherwise performed by a third party, the Supplier remains liable for the performance and fulfilment of its obligations under this Agreement and shall be liable to the Company for the acts or omissions of any such sub-contractors or third parties as fully as if they were the acts or omissions of the Supplier. The Supplier shall procure that such sub-contractor or third party complies with the requirements herein as if it was an original party to the Agreement.
The Company may assign without the prior written consent of the Supplier all or any of its rights and obligations under this Agreement to any member of the Company Group.
Variation
Any variation, modification, amendment or addition to the Agreement must be by way of Executive Authorization.
Revision of these Supplier T&Cs
The Company reserves the right to, and may, from time to time, update these Supplier T&Cs. Any such revisions will be published as an amended version on the Company’s online resources available by selecting the hyperlink on the Company’s Quotations, Email signatures or upon request. The Supplier is advised to re-read the Supplier T&Cs on a regular basis. Continued engagement with the Company and/or provision of the Goods and/or Services after amendments are made to the Supplier T&Cs, shall, unless otherwise agreed by way of Executive Authorization, be deemed as acceptance of the updated Supplier T&Cs.
Waiver
The waiver by either Party of a breach or default of any of the provisions of the Agreement by the other Party shall not be construed as a waiver of any succeeding breach of the same or other provisions, nor shall any delay or omission on the part of either Party to exercise or avail itself of any right, power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other Party.
Validity
If any court or administrative body of competent jurisdiction shall find any provision of the Agreement to be invalid or unenforceable, the invalidity or unenforceability of such provision shall not affect the other provisions of the Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The Parties hereby agree to attempt, in good faith, to substitute any invalid or unenforceable provision with a valid and enforceable provision that achieves to the greatest extent possible the economic, legal and commercial objective of the invalid or unenforceable provision.
Announcements
The Parties agree that (save as required by Applicable Law) neither of them will make any announcement to the public or any section thereof in connection with the existence of or operation of the Agreement without first obtaining the prior written consent of the other Party (such consent not to be unreasonably withheld or delayed).
Confidentiality
Each Party agrees to treat as secret and confidential and not at any time nor for any reason disclose or permit to be disclosed to any person or otherwise make use of or permit to be made use of any information supplied by or obtained from the other Party, including the Agreement and information relating to the Products, Goods and/or Services, Prices, customers, marketing, promotions, business affairs, operating methods, administration systems, finances or any such information relating to a supplier, customer or client of the other Party save to the extent that such information is:
already in its possession other than as a result of a breach of this Clause 13.7;
in, or subsequently becomes, in the public domain other than as a result of a breach of this Clause 13.7;
required by Applicable Law;
disclosed to the professional advisers, auditors and bankers of each Party;
disclosed after the other Party has given written approval; or
used for the performance of the obligations under the Agreement.
Each Party undertakes to take all such steps as shall from time to time be reasonable to ensure compliance with the provisions of this Clause 13.7 by its employees, agents and any sub-contractors, and breach by any such employee, agent, and sub-contractor shall be deemed breach by that Party.
Data Protection
Each Party shall comply with all applicable requirements of any data protection and/or privacy law which applies to that Party.
The Supplier’s information, including personal information will be stored electronically in a database and electronic platform (and where appropriate, some information may be retained in hard copy), which will be accessible to all the Company’s subsidiary, inter-related or associated companies under common control and the Supplier hereby consents to the collection, processing, storage, transfer and destruction of such information for legitimate and business related purposes.
The Supplier warrants that it has authority to share information it is providing to the Company. The Supplier may request to access or correct such information stored by the Company (it will be the Supplier’s responsibility to advise the Company of any changes to such information, as and when these may occur) and the Company shall take reasonable measures to protect such information (being as stringent as the measures it take to protect its own information), however the Company cannot and do not guarantee the absolute protection and security of such information.
The Company may disclose or otherwise allow others access to such information pursuant to a legal request, such as a subpoena, legal proceedings, search warrant or court order, or in compliance with applicable laws, if the Company has a good faith belief that the law requires such disclosure, with or without notice to the Supplier.
Non-Solicitation
The Supplier shall not, and shall procure that none of the member of its Group shall, during the term of the Agreement and for a period of 12 months after its expiry or termination (whether directly or indirectly) solicit the custom of or entice away any person or Group affiliate of such person who is, or was in the previous 12 months, a customer or a supplier of the Company in relation to Goods and/or services the same as or similar to the Goods and/or Services and shall not in any way circumvent the Company in business that would have otherwise been business through the Company.
Any service fees charged by the Supplier to customers in breach of this provision will be deemed damages suffered by the Company.
Entire Agreement
The Agreement:
comprises the entire agreement between the Parties with respect to the provision of the Goods and/or Services as from the Start Date and any representations or statements whether made orally or written elsewhere are hereby excluded, provided that this Clause 13.10(a) shall not exclude or limit any liability or any right which any Party may have in respect of pre-contractual statements made or given fraudulently; and
as from the Start Date supersedes all previous agreements and arrangements between the Parties with respect to the provision of the Goods and/or Services.
Relationship of Parties
Nothing in this Agreement is intended to or shall operate to:
create a partnership of any kind between the Company and the Supplier;
authorise either Party to act as agent for the other Party; or
authorise either Party to act in the name or on behalf of, or otherwise bind the other in any way.
Third Party Rights
The members of the Company’s Group and its sub-contractors are hereby entitled to enforce and have the benefit of all the liability provisions, warranties, indemnities, limitations and exclusions of liability contained in this Agreement and which benefit the Company and shall have the right to enforce the provisions of this Agreement in accordance with the provisions of the Contracts (Rights of Third Parties) Act 1999. The rights of the Parties to agree to rescind, amend or otherwise vary or to waive the terms of this Agreement or to settle any dispute or other matter arising out of or in connection with this Agreement on such terms as they shall in their absolute discretion think fit shall not be subject to the consent of any member of the Company’s Group or any of its sub-contractors.
Except as stated in Clause 13.12(a), any person who is not a Party to this Agreement may not enforce, or otherwise have the benefit of, any provision of this Agreement.
Governing Law and Jurisdiction
This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter, formation or termination shall be construed in accordance with and governed by English Law.
Any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Agreement or its subject matter, formation or termination shall be referred to and finally resolved by arbitration administered in accordance with the Rules of Arbitration of the International Chamber of Commerce, the rules of which are deemed to be incorporated by reference into this clause. The Party referring the matter to arbitration will be liable for the arbitrator’s costs and all ancillary costs of the Arbitration until such time as the arbitrator makes a decision pertaining to costs.
The number of arbitrators shall be three, who shall be appointed by agreement between the Parties within 2 weeks of a notice calling for arbitration, failing which each Party will be entitled to appoint one arbitrator and the two appointed arbitrators shall appoint a third arbitrator who shall act as the presiding arbitrator, the seat (or legal place) of arbitration shall be the capital of the country of incorporation of the Company, and the language to be used in the arbitral proceedings shall be English.
Notwithstanding the above the Company shall be entitled, but not obliged, to take legal action in the courts of the country of incorporation of the Supplier - to which jurisdiction the Supplier consents.
AGENCY
DEFINITIONS & INTERPRETATION
In these Agency T&Cs, the following words shall have the following meanings:
Appointment Confirmation means (and which all services provided by the Supplier shall be subject to) the below, which shall be read together and which shall take precedence in that order;
the Order Confirmation; and
the Agency T&Cs of the Company;
Applicable Law means all laws, legislation, statutes, regulations, requirements and other enactments applicable to theprovision of the Services;
Contract for Services means the documents that shall govern the relationship between the Supplier and the Customer (andwhich shall take precedence in the order stated here):
the Order Confirmation; and
the Supplier T&Cs of the Company, (wherein the Customer shall substitute the Company), which shall be applicable with the following amendments;
the Definition of Company shall be replaced with the following: Company means the customer through its agent, towhom the supplier is providing the Services;
the addition of a requirement that notwithstanding any other provision, all contact, notices, demand and invoices bemade and communicated to the Customer through its agent, save where the agent has given written consent forthe Supplier to contact the Customer directly.
Control means, in relation to any entity:
the right to exercise, directly or indirectly, more than 50 per cent. of the voting rights attributable to the management of that entity; and/or
the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of that entity;
Customer means the customer of the Company with whom it has entered into an agreement, pursuant to which it has agreedto procure the provision of certain logistics services as agent for an on behalf of such customer from the Supplier;
Customer Agreement mean the agreement between the Company and the Customer;
Delay Charges means the amount that the Supplier Shall be liable for if the Service is not performed / products are not deliveredwithin the time limits for performance / delivery set out in the Order Confirmation for loss and damage resulting from such delay,subject to a maximum of a sum equal to twice the amount of the Prices in respect of the delayed Products, failing stipulation inthe Order Confirmation at 5% of the Price, per delay day;
Duration means for the Appointment Confirmation and the Contract of Services, the duration commencing on the Start dateand shall, subject to the rights of earlier termination in terms hereof, remain in force until terminated by either Party giving theother party not less than one months’ notice or continue until completion of the Services;
Executive Authorization means agreement by the Parties in writing and signed by a duly authorized representative of eachof the Parties which must include two authorized representatives of the Company.
Force Majeure includes official or unofficial industrial action, industrial sabotage, industrial dispute (in each case, whether ornot relating to that Party’s workforce), fire, shortage of, inability or delay in obtaining fuel, supplies, labour, materials orservices, acts of God, acts of war, terrorism, shortage of fuel, software defects or failures, epidemics, pandemics, abnormalweather conditions, a court order or injunction-including arising as a result of third party claims and other events which arebeyond a Party’s reasonablecontrol and, without derogating from the generality of the foregoing, which include, but are notlimited to:
war, invasion, acts of foreign enemies, hostilities or warlike operations (whether war be declared or not), civil war, rebellion, revolution, insurrection, civil commotion assuming the proportions of or amounting to an uprising, military or usurped power; or
any act of terrorism (For the purpose of this endorsement an act of terrorism means an act, including but not limitedPage 13 of6to the use of force or violence and / or the threat thereof, of any person or group(s) of persons, whether acting aloneor on behalf of or in connection with any organization(s) or government(s), committed for political, religious,ideological or similar purposes including the intention to influence any government and/or to put the public, or anysection of the public, in fear);
any epidemic or pandemic;
law or act of Government or statutory authority.
Group means, with respect to a Party, that Party and any entity Controlled by, Controlling or under common Control with that Party;
Order Confirmation means the order(s) issued by the Company in which ever form contained (including emails, service contracts, and accepted quotations) stipulating the nature of the Goods and/or Services, price and if applicable, time for performance;
Payment Terms means the payment terms as stated in the Order Confirmation, being the amount of Business days after which invoices raised by the Supplier shall be due for Payment, after receipt by the Company, failing stipulation in the Order Confirmation, 30 days after receipt of the relevant invoice;
Prices means the Prices payable for the Services set out in the Order Confirmation. The Prices are inclusive of value added tax and all other applicable taxes and duties unless specifically stated otherwise. Failing stipulation in the Order Confirmation prices shall be at the prevailing rate of the Company;
Product means the Goods and/or Services as described in the Order Confirmation and/or in terms of which the Service is provided;
Sanctions means any sanction, prohibition, restriction or penalty (or any risk of any sanction, prohibition, restriction or penalty) whatsoever imposed by any state, country, international governmental organisation or other relevant authority, including the United Nations, European Union, United Kingdom or United States of America;
Services mean the services provided by the Supplier including, without limitation, logistics and supply chain and freight forwarding solutions, such as handling, transportation, consolidation, forwarding, clearing, receipt, warehousing, Blending Services, arranging insurance, courier, storage, dispatch of Goods, negotiating and arranging services upon request or where required, issuing of transport documents in respect of carriage of Goods and/or Products, the clearing and forwarding of the Goods, organizing for the collection of Goods where required, the release of the Goods against presentation of the appropriate documents and information, consolidation of documents and costings, and any related and ancillary services in respect of the services and the providing of advice and information relating thereto, to be provided by the Supplier pursuant to the Agreement as may be further detailed in the Order Confirmation;
Supplier means you, the party who is accepting this Agreement, by and through, the provision of the Goods or Services to the Company and/or its Customer(s) and any other party who in whole or part is involved in the delivery of the aforementioned Services;
Supplier Personnel means all personnel of the Supplier involved in the performance of Services under the Appointment Confirmation;
Start Date means the date on which the Supplier commences the provision of the Services;
Storage Facility means the storage facility as set out in the Order Confirmation, and/or where the Product is stored, if applicable;
Weight/quantity means the number of gross metric tons and/or number of net metric tons and/or number of bags and/or number bundles of Products as set out in the Order Confirmation and/or declared by the Company;
Clause headings are for convenience of reference only and shall have no effect on the interpretation of the AppointmentConfirmation. Unless the context otherwise requires, a reference to a Clause is to a clause of these Agency T&Cs.
A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time, and shall include all subordinate legislation made from time to time under that statute or statutory provision.
In the Appointment Confirmation, unless the context otherwise requires:
words in the singular shall be deemed to include the plural and vice versa;
words importing any particular gender shall include all other genders;
references to a person shall include natural persons and bodies of persons whether corporate or incorporate;
the words include or including shall be deemed to have the words “without limitation” following them; and
a reference to writing or written includes email (provided the email is sent in accordance with Clause 8.1).
APPOINTMENT OF THE SUPPLIER
The Company has been appointed by the Customer pursuant to the Customer Agreement to make all necessary arrangements for the Services as agent for and on behalf of the Customer.
The Company, acting as agent for and on behalf of the Customer hereby appoints the Supplier to provide the Services to the Customer.
The Appointment Confirmation governs the relationship between the Company and the Supplier. The Supplier recognises and irrevocably agrees that the Contract for Services is between the Customer and the Supplier and that the Company has no liability, responsibility or obligation whatsoever to the Supplier to perform any of the Customer's obligations arising out of or in connection with the Contract for Services.
The Services provided by the Supplier will, without exception be subject to the Agreement, which Agreement shall apply to the exclusion of any other terms and condition, including without limitation any other general or standard trading terms and conditions of the Supplier or owner of the Goods and/or third party agreements, including any contractor or subcontractor terms, unless otherwise specifically agreed in writing by the Company and which agreement is subject to Executive Authorization and signed by both the Company and the Supplier’s duly authorized representatives.
OBLIGATIONS OF THE SELLER
The Supplier acknowledges and agrees that it shall be under the control and supervision of the Company who shall, acting as agent for and on behalf of the Customer, manage and co-ordinate the provision of the Services performed by the Supplier. The Supplier agrees to act only as expressly authorised in the Appointment Confirmation (unless otherwise agreed by the Company in writing) and shall not commit, bind or incur any liability on behalf of the Company and/or the Customer beyond the express terms of the Appointment Confirmation or as expressly authorised by the Company in writing.
During the term of the Contract for Services, the Supplier warrants and undertakes as a continuing obligation that:
it shall:
provide the Services with all due care, diligence, skill and judgment and in accordance with the Company's instructions;
comply with all Applicable Laws, including any statutory requirements applicable to the employment of all Supplier Personnel;
ensure that all the equipment used whatsoever for and in connection with the provision of the Services shall be of a good standard, in good working order, properly maintained and suitable for use in connection with the provision of the Services;
ensure that any Transport Units used in the provision of the Services shall be fit for purpose and properly maintained and suitable for use in connection with the provision of the Services and the Products
engage appropriately experienced, skilled and trained Supplier Personnel;
maintain, at its own cost, such licences and permits as are required by Applicable Law to carry out the Services; and
ensure it has sufficient capacity and resources at all times to provide the Services required by the Customer;
at all times perform the Services in compliance with the Customer Policies, Procedures and rules – available upon request or found at [insert@hyperlink] and in the case of Transport Services, also in compliance with the Company’s Haulier Minimum Requirements.
no payment or other transaction relating to the Services will or might expose the Company, the Customer or any of their respective officers, employees, servants, agents or insurers to any Sanctions or any other breach of Applicable Law.
PAYMENT
The Prices and any other charges agreed between the Company and the Supplier shall be paid by the Company to the Supplier as agent for and on behalf of the Customer, subject to and following receipt of the Price and any other agreed charges in clear funds from the Customer.
In the event that the Customer fails to pay the Prices and any other agreed charges to the Company or any other amounts are owed by the Customer to the Supplier in relation to the Services, the Company will use its reasonable endeavours to recover the same from the Customer, but the Company accepts no liability to the Supplier if it is unable to do so.
EXCLUSION OF LIABILITY
The Company shall have no liability to the Supplier in respect of any costs (including the costs of investigating and defending any claims), expenses, claims, losses, liabilities, orders, awards, fines, proceedings and judgments of whatsoever nature howsoever assumed, incurred or suffered by the Supplier arising out of or in connection with any act or omission (including negligent acts or omissions) of the Customer, its officers, employees, agents or sub-contractors and the Supplier hereby acknowledges and agrees that in such event, it shall only have recourse against the Customer and not the Company.
The Supplier shall hold harmless and indemnify the Company against all costs (including the costs of investigating and defending any claims), expenses, claims, losses, liabilities, orders, awards, fines, proceedings and judgements of whatsoever nature howsoever assumed, incurred or suffered by the Company, its sub-contractors or any member of the Company’s Group, their respective employees, servants, agents, insurers or reinsurers (including as a result of any claims by the Customer, its officers, employees, agents or sub-contractors) as a result of or in connection with any of the following:
any act or omission of the Supplier (including negligence); and
the performance by the Supplier, or any failure by the Supplier to perform:
the Services; or
any of its obligations under the Contract for Services.
The exclusions of liability, indemnities and remedies contained in the Appointment Confirmation shall survive the termination of the Appointment Confirmation.
Notwithstanding any provision to the contrary contained anywhere else, the Company shall have no liability whatsoever for any loss and /or damage and /or claim and /or expense of whatsoever nature, arising directly or indirectly from or in connection with or any action trying to control prevent or suppress (regardless of any other cause or event contributing concurrently or in any other sequence to the loss) an incident of Force Majeure;
FORCE MAJEURE
The Company shall be under no liability to the Supplier for any delay or non-performance of its obligations under the Appointment Confirmation to the extent that such non-performance is due to Force Majeure.
ANTI BRIBERY
The Supplier agrees, confirms and undertakes that
it has not and will not, and none of its employees, officers, directors, contractors, sub-contractors and agents has or will, directly or indirectly, pay, give, deliver, receive or agree (or undertake to pay, give, deliver, receive or agree) any bribe, pay-off, kick-back, gift, gratuity, commission, amount or other thing of value, or any interest-free loans, contributions or donations, in any way or form and whether in local or foreign currency, in the Territory or any other place where such conduct relates to the Services, in each case in violation of any Applicable Laws, including any applicable anti-corruption legislation or similar legislation to any person including any government officials or employees, political parties, political party officials or political candidates or third persons with influence over government officials or employees; and
it has and shall maintain in place an ethics or compliance program which implements internal procedures to prevent and detect violations of Applicable Laws, and to promote ethical behaviour by and within its organisation and business.
MISCELLANEOUS
Notice
Any notice given by either Party to the other in connection with any matter relating to the Appointment Confirmation shall be in writing and in English and shall be sent to the relevant Party at the address set out in the Order Confirmation, failing which to the registered addresses respectively.
Notices may be given, and are deemed received:
by hand against signature for receipt, on the date of its receipt; or
by email, on delivery to the correct addresses at the address set out in the Order Confirmation, provided the email has in addition been sent to legal@reloadlogistics.com and each of these email addresses has acknowledges receipt of the email or has returned a read receipt.
Variation
Any variation, modification, amendment or addition to the Agreement must be by way of Executive Authorization.
Revision of these Agency T&Cs
The Company reserves the right to, and may, from time to time update these Agency T&Cs. Any such revisions will be published as an amended version on the Company’s online resources available by selecting the hyperlink on the Company’s Quotations, Email signatures or upon request. The Supplier is advised to re-read the Agency T&Cs on a regular basis. Continued engagement with the Company and/or provision of the Goods and/or Services after amendments are made to the Agency T&Cs, shall, unless otherwise agreed by way of Executive Authorization, be deemed as acceptance of the updated Agency T&Cs.
Waiver
The waiver by either party of a breach or default of any of the provisions of the Appointment Confirmation by the other Party shall not be construed as a waiver of any succeeding breach of the same or other provisions, nor shall any delay or omission on the part of either Party to exercise or avail itself of any rights, power, or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other Party.
Validity
If any court or administrative body of competent jurisdiction shall find any provision of the Appointment Confirmation to be invalid or unenforceable, the invalidity or unenforceability of such provision shall not affect the other provisions of the Appointment Confirmation and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The Parties hereby agree to attempt, in good faith, to substitute any invalid or unenforceable provision with a valid and enforceable provision that achieves to the greatest extent possible the economic, legal and commercial objective of the invalid or unenforceable provision.
Announcements
The Parties agree that (save as required by Applicable Law) neither of them will make any announcement to the public or any section thereof in connection with the existence of or operation of the Appointment Confirmation without first obtaining the prior written consent of the other Party (such consent not to be unreasonably withheld or delayed).
Confidentiality
Each Party agrees to treat as secret and confidential and not at any time nor for any reason disclose or permit to be disclosed to any person or otherwise make use of or permit to be made use of any information supplied by or obtained from the other Party, including the Appointment Confirmation and information relating to the Products, Services, Prices, customers, marketing, promotions, business affairs, operating methods, administration systems, finances or any such information relating to a supplier, customer or client of the other Party save to the extent that such information is:
already in its possession other than as a result of a breach of this Clause 8.6;
in, or subsequently becomes, in the public domain other than as a result of a breach of this Clause 8.6;
required by Applicable Law;
disclosed to the professional advisers, auditors and bankers of each Party;
disclosed after the other Party has given written approval; or
used for the performance of the obligations under the Agreement/ Appointment Confirmation.
Each Party undertakes to take all such steps as shall from time to time be reasonable to ensure compliance with the provisions of this Clause 8.6 by its employees, agents and any sub-contractors, and breach by any such employee, agent and sub-contractor shall be deemed a breach by that Party.
Non-solicitation
The Supplier shall not, and shall procure that none of the member of its Group shall, during the term of the Appointment Confirmation and for a period of 12 months after its expiry or termination (whether directly or indirectly) solicit the custom of or entice away any person or Group affiliate of such person who is, or was in the previous 12 months, a customer or a supplier of the Company in relation to services the same as or similar to the Services (including the Customer) and shall not in any way circumvent the Company in business that would have otherwise been business through the Company.
Data Protection
Each Party shall comply with all applicable requirements of any data protection and/or privacy law which applies to that Party.
The Supplier’s information, including personal information will be stored electronically in a database and electronic platform (and where appropriate, some information may be retained in hard copy), which will be accessible to all the Company’s subsidiary, inter-related or associated companies under common control and the Supplier hereby consents to the collection, Page 17 of 6 processing, storage, transfer and destruction of such information for legitimate and business related purposes.
The Supplier warrants that it has authority to share information it is providing to the Company. The Supplier may request to access or correct such information stored by the Company (it will be the Supplier’s responsibility to advise the Company of any changes to such information, as and when these may occur) and the Company shall take reasonable measures to protect such information (being as stringent as the measures it take to protect its own information), however the Company cannot and do not guarantee the absolute protection and security of such information.
The Company may disclose or otherwise allow others access to such information pursuant to a legal request, such as a subpoena, legal proceedings, search warrant or court order, or in compliance with applicable laws, if the Company has a good faith belief that the law requires such disclosure, with or without notice to the Supplier.
Entire Agreement
The Appointment Confirmation:
comprises the entire agreement between the Parties with respect to the appointment by the Company (as agent for and on behalf of the Customer) of the Supplier to provide the Services and any representations or statements whether made orally or written elsewhere are hereby excluded, provided that this Clause 8.9(a) shall not exclude or limit any liability or any right which any Party may have in respect of pre-contractual statements made or given fraudulently; and
supersedes all previous agreements and arrangements between the Parties with respect to the provision of the Services by the Supplier
Relationship of Parties
Nothing in this Appointment Confirmation is intended to or shall operate to:
create a partnership of any kind between the Company and the Supplier;
authorise either Party to act as agent for the other Party; or
authorise either Party to act in the name or on behalf of, or otherwise bind the other in any way.
Third Party Rights
No third party shall have any rights under the Contracts (Rights of Third Parties) Act 1999 in connection with the Appointment Confirmation.
Governing Law and Jurisdiction
The Appointment Confirmation and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter, formation or termination shall be construed in accordance with and governed by English Law.
Any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Appointment Confirmation or its subject matter, formation or termination shall be referred to and finally resolved by arbitration administered in accordance with the Rules of Arbitration of the International Chamber of Commerce, the rules of which are deemed to be incorporated by reference into this clause. The Party referring the matter to arbitration will be liable for the arbitrator’s costs and all ancillary costs of the Arbitration until such time as the arbitrator makes a decision pertaining to costs.
The number of arbitrators shall be three, who shall be appointed by agreement between the Parties within 2 weeks of a notice calling for arbitration, failing which each Party will be entitled to appoint one arbitrator and the two appointed arbitrators shall appoint a third arbitrator who shall act as the presiding arbitrator, the seat (or legal place) of arbitration shall be the capital of the country of incorporation of the Company, and the language to be used in the arbitral proceedings shall be English.
Notwithstanding the above the Company shall be entitled, but not obliged, to take legal action in the courts of the country of incorporation of the Supplier, to which jurisdiction the Supplier consents.
Haulier Minimum Requirements
Applicable to all Suppliers undertaking transport services (“Haulier”)
Haulier
The Haulier warrants that:
It shall perform the Services in accordance with the Customer’s Business Principles (if applicable)
It shall perform the Service in terms of DPS subjectivities
Vehicles are fitted with live satellite tracking system - able to download a route logic system that alerts the control centre should a vehicle deviate from the designated route
Vehicle movement is monitored by a 24 hour tracking control centre
Each Vehicle is reachable by cell phone and/or HF two-way radio and communication between driver and the control centre is possible at all times
Vehicles move in convoy of minimum 3 vehicles per convoy throughout the journey from loading point to designated offloading point
Driving hours are restricted to limit fatigue risk and the particular risks of driving in darkness by avoiding night-time driving and high risk locations
Parking locations are carefully vetted to ensure the highest level of security
Vehicles are not overloaded
It maintains an incident reporting process which ensures all incidents are reported to the Customer immediately and significant incidents are investigated
It maintains processes to ensure speed limits are complied with
It maintains processes to ensure prescribed routes are followed (where specified)
It maintains a documented maintenance process which ensures vehicles receive the maintenance they require, when they require it
It maintains a process to ensure loads do not exceed the applicable legal gross and axil weight limit
It maintains a process to ensure vehicles have adequate and appropriate securing devices, cartons, boxes, etc. for the loads being carried and loads are adequately secured and/or tarped during transit
It has an Emergency Response Plan and capability and equipment necessary to implement the plan when necessary
on receipt of any Products, the Haulier, through its driver, will weigh the Products using the method stated in the Order Confirmation (failing stipulation, by weighing gross metric tons) and carry out an external check on the condition of the Products and the integrity of the seals and seal information and packing unit integrity and details, and the packing list / Goods receipt (or equivalent document called by any other name) (Receipt Document) shall be endorsed with details of any apparent problems. Failure to endorse the Receipt Document shall be prima facie evidence of the Supplier taking the Products in good condition and that the weight, number of packages, their marks and numbers correspond with the statements in the Receipt Document;
Drivers
The Haulier warrants that:
All drivers hold the necessary licenses to drive the vehicles carrying the proposed cargo
All drivers are authorised to sign Receipt Documents verifying inter alia, packing lists, seal integrity, seal numbers, bag/unit numbers etc, and in so doing represents the Haulier.
All drivers are periodically tested for fitness to drive including but limited to health, drug or alcohol abuse, diabetes, hypertension, epilepsy, eyesight and cardiac disease and will not be allowed to drive unless they pass these test/ examinations are satisfactory
All drivers are experienced on the vehicle being driven and the cargo being carried and have been trained to meet the requirements herein contained
All drivers are at least 25 years of age and less than 65 years of age, have at least 5 years driving experience and at least 2 years Truck driving experience.
All drivers are instructed to comply with all road traffic regulations and operate the vehicle in a safe and considerate manner at all times
All drivers are instructed to comply with all applicable regulatory requirements, this document and the SOP
All drivers are instructed to not carry unauthorised passengers
All drivers are instructed to wear a seat belt and ensure everyone in the vehicle wears their seat belt whilst the vehicle is in motion
All drivers are instructed to not use a cell phone (mobile phone) whilst the vehicle is in motion
All drivers instructed to report all incidents to the Haulier and Company controller as soon as possible
All drivers are provided with adequate Personal Protection Equipment (PPE) including: Safety boots, Safety helmet, High visibility vest
All drivers are instructed to verify that the load remains secure at all rest times / stops
All drivers are instructed to complete a Pre-Start Checklist at the beginning of each trip and record defects that occur on the trip for rectification at destination and retain the checklists for review.
The above checklist includes checks for:
Inspection of vehicle for damage
Oil and lubrication levels
Brake condition and functionality
Condition and pressure of tyres
Tightness of wheel nuts
Condition and functionality of lights
Fifth wheel plate and king-pin
and any defects shall be recorded on inspection checklist sheets.
Vehicles
The Haulier warrants that:
Vehicles pass a pre-loading inspection and are assessed as being in good working order, condition and repair, fit for purpose at start of trip, and as such, all equipment and devices on the Vehicle are functioning correctly, the vehicle has no significant damage and is well maintained and all components are within the manufacturer recommended tolerances, and the vehicles are designed and maintained to enable the vehicle to safely carry the load specified on the route planned
Vehicles have adequate equipment to cover and secure the load to the vehicle such that is will not shift in transit
Vehicles have a functioning seat belt for each seat
Vehicles carry one fire extinguisher, a wheel block, a First Aid kit, a warning triangle, an oil spill clean-up kit and drip trays if carrying liquid cargo, and high visibility vests and safety helmets for number of people on board
Vehicles tyres meet minimum standards for the jurisdiction where operating
Reporting
The Haulier warrants that:
It shall provide the Company with daily tracking reports, before 10h00 (am), in excel format as below
The tracking report shall expound on expected delays including specific timelines
Any Vehicles booked will be communicated to the Company’s expeditor within 30 minutes of booking setting out:
Horse Registration Number
Trailer Number
Trailer 2 Number
Capacity
Driver Name
Passport Number
Drivers physical address (as may be applicable).
Drivers will announce their arrival immediately at loading and offloading and where a specific process is prescribed for making announcements in the Loading Order Confirmation, the drivers shall ensure that they follow the prescribed process.
It shall provide the Company with any other reports requested by the Company in a timely manner in the form prescribed by the Company from time to time and at such times as prescribed by the Company from time to time
It shall ensure that the Company is immediately notified in writing in case of any incident (of any nature) including but not limited to accidents, delays, thefts, emergency, breakdowns and the like