Terms & Conditions

 

Road Haulage

1. Definitions and Interpretation

1.1  In these Terms, the definitions contained in the BIFA Conditions shall apply in conjunction with the following defined terms:

Applicable Laws:

the laws of England and Wales and any other laws or regulations, regulatory policies, guidelines or industry codes which apply to the exercise of the parties’ rights or the performance of their obligations under the Contract, including those in any other jurisdiction.

Authority:

means any applicable customs, excise, border, legal, law enforcement, taxation or revenue authority, administration, association, organisation or body with applicable jurisdiction and authority over and/or with the ability to apply the applicable legislation to the activity in question.

BIFA Conditions:

the British International Freight Association Standard Trading Conditions, of which the current version is available at https://www.bifa.org/trading-conditions/bifa-stc-2021 and where any specific clauses of the BIFA Conditions are referred to such references shall be to the clause as updated (notwithstanding that its number may have changed).

Business Day:

a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Charges: the applicable charges in respect of the Services, as set out in clause 8.

CMR:

the United Nations Convention on the Contract for the International Carriage of Goods by Road, accessible at: https://treaties.un.org/doc/Treaties/1961/07/19610702%2001-56%20AM/Ch_XI_B_11.pdf.

CMR Note:

road consignment (CMR) note.

Collection Point:

the named point for collection of the Goods, as set out in the Quotation or otherwise as agreed in writing between the parties.

Collection Time:

the time for Collection of the Goods, as set out in the Quotation or otherwise as agreed in writing between the parties.

Contract:

the contract between NDF and the Customer for the provision of the Services, as construed in accordance with clause 1.3.

Credit Application Form:

means NDF’s standard credit account form, which contains invoicing information the Customer shall be required to complete in accordance with clause 3.3.

Customer:

the person or firm to whom or which NDF has agreed to provide the Services and which wishes to purchase the Services from NDF, as specified within the Quotation.

Delivery Point:

the named point for delivery of the Goods, as set out in the Quotation or otherwise as agreed in writing between the parties.

Delivery Time:

the agreed time for delivery of the Goods, as set out in the Quotation or otherwise as agreed in writing between the parties.

Force Majeure Event:

events, circumstances or causes beyond its reasonable control including but not limited to, Acts of God, adverse weather conditions, flood, drought, earthquake or other natural disaster, terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo or breaking off of diplomatic relations, industrial action, nuclear, chemical, biological contamination or sonic boom, epidemic or pandemic, any law or any action taken by a Government or a public authority including without limitation imposing an export or import restriction, quota or prohibition, and the collapse of buildings, fire, explosion or accident.

Intellectual Property Rights:

patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Loss: actions, awards, charges, claims, compensation, costs, damages, demands, expenses, fees, fines, interest, liabilities, losses, penalties, proceedings and settlements, and Losses shall be construed accordingly.

NDF:

NextDay Freight Limited, a company incorporated and registered in England and Wales with company number 05281626 and whose registered office is at Centurion House Centurion Way, Farington, Leyland, Lancashire, PR25 3GR.

Order:

the Customer’s order for the Services, in the form of the Customer’s acceptance of the Quotation (whether written or given orally).

Order Period:

has the meaning given in clause 3.3.

Promotional Materials:

NDF’s catalogues, brochures, websites or such other applicable sales or promotional literature, materials or publications.

Quotation:

NDF’s quotation or proposal (whether in writing or given orally) to provide the Services to the Customer, which is based on the Requirements and which incorporates these Terms.

Requirements:

any requirements for the Services, as notified by the Customer to NDF (whether in writing or given orally, provided always that where given orally such is confirmed in writing).

Services:

means the carriage services that are provided by NDF, which shall be as further particularised in the Quotation.

Supplied Personnel:

has the meaning given in clause 6.3(b).

Terms:

these terms and conditions as amended from time to time.

1.2  In these Terms, the following rules of interpretation apply:

(a) a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.

(b) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

(c) a reference to writing or written includes emails.

 

2.  Precedence

To the extent of any conflict between any defined term, clause or obligation contained in:

(a) any Quotation;
(b) these Terms;
(c) the BIFA Conditions; and
(d) the CMR,

the document named first in this clause 2 shall prevail to the extent of such conflict.

 

3. Basis of Contract

3.1  These Terms incorporate and apply (subject to clause 2) in conjunction with the:

(a) BIFA Conditions; and
(b) CMR,

to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

3.2  Where the Customer is interested in purchasing the Services, it shall first be required to contact NDF (whether via telephone or in writing) in order to discuss its Requirements. Thereafter, NDF shall issue a Quotation in respect of the Services, which shall be based upon the Requirements.

3.3  NDF may withdraw or otherwise amend any Quotation at its absolute discretion and at any time. If the Customer accepts the position set out in the Quotation, it shall be required to raise an Order. NDF may also (at is absolute discretion) require that the Customer completes the Credit Application Form either at the time of or in advance of the Order being raised).

3.4  The Order constitutes an offer by the Customer to purchase the Services in accordance with these Terms (as supplemented by the further documents referred to within clause 2) and shall not incorporate any other terms and conditions beyond those set out in the Contract.

3.5  NDF may reject the Order at its absolute discretion and for any reason whatsoever and the Order shall only be deemed to be accepted at the earlier of:

(a) NDF’s authorised representative issuing written acceptance of the Order; or
(b) commencement of the provision of the Services (or any part thereof), including preparation for or mobilisation of the provision of the Services, by NDF,

at which point the Contract shall come into existence. For the avoidance of doubt, any Requirements or other information pertaining to the Contract set out in NDF’s written acceptance shall be deemed to have been agreed in writing unless immediately rejected by the Customer.

3.6  The Customer is responsible for ensuring and warrants that the Requirements and terms outlined in the Quotation and Order are true, complete and accurate in every respect. The Customer acknowledges that any Quotation issued by NDF is based upon the Customer’s Requirements and, in the event that the Customer’s Requirements subsequently change, NDF reserves the right to amend the Charges and any other information within that Quotation including the Delivery Time.

3.7  Once accepted, the Order may not be cancelled by the Customer except with the prior agreement of NDF in writing. Without prejudice to any further terms that may be agreed between the parties, any such agreement is on the basis that the Customer shall indemnify NDF, keep NDF indemnified and hold NDF harmless from and against any and all Losses (which for the purpose of this clause shall include the cost of labour and materials, loss of profit, loss of business, loss of goodwill, loss of business opportunity, loss of anticipated saving and any other indirect, special or consequential loss) suffered or incurred by NDF arising out of or in connection with such cancellation. For the avoidance of doubt, such Losses may be recovered in whole or in part by the charging of a cancellation charge, notified to the Customer in advance.

3.8  The Promotional Materials are produced for the sole purpose of giving an approximate idea of the Services referred to in them. They shall not form part of the Contract nor have any contractual force.
3.9  NDF’s employees or agents are not authorised to make any representations concerning the Services unless confirmed by NDF in writing. In entering into the Contract the Customer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.

 

4. Services and NDF’S General Obligations

4.1  NDF shall:

(a) supply the Services to the Customer:

(i) in accordance with the Requirements (which shall, for the avoidance of doubt, be confirmed by NDF on or after the incorporation of the Contract under clause 3.5); and

(ii) with reasonable care and skill;

(b) be responsible for the Goods from the completion of loading at the Collection Point until the arrival of the Goods at the Delivery Location; and

(c) use all reasonable endeavours to ensure that no third party (save for any third party authorised to act on NDF’s behalf under the Contract or any applicable Authority) shall be able to access the Goods whilst in the possession of NDF.

4.2  The list of goods referred to in sentence 1 of clause 14 of the BIFA Conditions shall be extended so as to include cheques, treasury notes, bonds, negotiable instruments, drugs, computer chips, memory cards, mobile phones, spirits, cigarettes and tobacco products and for the avoidance of doubt currency shall be deemed to include bank notes or coins.  To the extent that NDF agrees to provide the Services in connection with any such goods, the Customer agrees and acknowledges that NDF may have to obtain alternative insurance and that it shall be responsible for any charges associated therewith.

 

5. Customer’s Obligations

5.1  For the purposes of and in making the warranty set out in clause 3 of the BIFA Conditions, the Customer also expressly warrants, represents and undertakes that it has rights of control over and to dispose of the Goods.  The Customer agrees and acknowledges that NDF may rely upon this warranty in each and every respect in enforcing any rights and remedies under the general lien provided for by clause 8 of the BIFA Conditions.

5.2  The Customer warrants that it shall (in addition to and notwithstanding its obligations under the BIFA Conditions):

(a) fully co-operate with NDF (and any third party acting on NDF’s behalf) and any relevant Authority and each of their requirements on all matters relating to the Services;

(b) provide all documents and information required by NDF in order for NDF to provide the Services in accordance with the Contract, within a reasonable period of time of any such request being received;

(c) in raising the Order, provide details of any special precautions for storage, handling or carriage of the Goods, required by the nature, weight or condition of the Goods or by any Applicable Law;

(d) act at all times in compliance with the Applicable Laws; and

(e) notify NDF immediately in writing on a Change of Control of the Customer.

 

6. Collection by NDF

6.1  Prior to the Collection Time, the Customer shall ensure that such Goods are securely packed, stowed, labelled (in compliance with Applicable Laws), in a manner which is suitable for their transit and ready for loading onto the Transport Unit.

6.2  Where applicable, the Customer shall provide NDF with a note detailing the contents of each container of Goods, including a description and particulars of the Goods stored therein and their weights and measurements (in addition to those matters set out within clause 5(c), above).

6.3  Unless otherwise agreed in writing, the Customer shall be responsible for:

(a) NDF’s unobstructed access to, movement around and egress from the Collection Point; and

(b) loading the Goods on to the Transport Unit and shall be liable for any loss or damage caused during loading, notwithstanding that NDF’s personnel, agents or suppliers (Supplied Personnel) may assist with this process. Any Supplied Personnel provided by NDF for such loading shall be deemed to be under the direction and control of the Customer. Such Supplied Personnel shall, for all purposes in connection with their employment in the loading of the Goods, be regarded as the servants or agents of the Customer who shall be solely responsible for all claims arising in connection with loading of the Goods by, or with the assistance of, such Supplied Personnel.

6.4  In loading the Goods on to the Transport Unit, the Customer warrants that:

(a) the Goods are correct and as described; and

(b) the requirements of clauses 6.1 – 6.2 are met,

in each and every respect.

6.5 The Customer expressly acknowledges that risk in the Goods shall only pass to NDF once the Goods have been successfully loaded onto the Transport Unit.

 

7. Transport and Delivery

7.1  NDF shall:

(a) carry the Goods on the Transport Unit, ensuring that the Goods remain securely packed, stowed and labelled (further to the Customer’s obligation under clause 6.1);

(b) use reasonable endeavours to ensure that delivery takes place by the Delivery Time, provided always that:

(i) time for delivery by the Delivery Time shall not be of the essence; and

(ii) NDF shall not be liable for any delays in making delivery arising out of or in connection with the Customer’s breach of any of its obligations under this Contract; and

(c) obtain a signed (or appropriately stamped) receipt for the Goods from the Customer, a person authorised by the relevant Consignee, or its agent and forward a copy to the Customer immediately on receipt, as applicable.

7.2  Unless otherwise agreed in writing, the Customer shall be responsible for:

(a) NDF’s unobstructed access to, movement around and egress from the Delivery Point;

(b) be responsible for unloading the Goods from the Transport Unit at the Delivery Point and shall be liable for any loss or damage caused during unloading; and

(c) unloading the Goods from the Transport Unit and shall be liable for any loss or damage caused during unloading, notwithstanding that any Supplied Personnel may assist with this process. Any Supplied Personnel provided by NDF for such unloading shall be deemed to be under the direction and control of the Customer. Such Supplied Personnel shall, for all purposes in connection with their employment in the unloading of the Goods, be regarded as the servants or agents of the Customer who shall be solely responsible for all claims arising in connection with unloading of the Goods by, or with the assistance of, such Supplied Personnel.  For the avoidance of doubt, risk in the Goods shall transfer to the Customer from NDF upon their arrival at the Delivery Point and upon the commencement of their unloading in accordance with this clause.

7.3  The parties agree that for the purposes of clause 10(A) of the BIFA Conditions, NDF shall be permitted to raise charges for the storage of the Goods at its own warehouse or premises, in addition to any costs incurred as a result of the failure to take delivery.  Notwithstanding possession of the Goods remaining with NDF, risk in the Goods shall transfer to the Customer from the time that it fails to take delivery.

7.4  Receipt by the Consignee, or any appointed agent, entitled to take delivery of the Goods, without complaint (in the form of a notification written on CMR Note) shall constitute prima facie evidence that the Goods were delivered in the same condition as they were in at the point at which risk in them transferred to NDF at the Collection Point (Good Condition) and otherwise in accordance with the Contract.  For the avoidance of doubt:

(a) a Clear CMR Note shall denote the Goods as having been delivered to the Customer in Good Conditions; and
(b) where the Customer does not consider that the Goods are in Good Condition, it is required to have made a written notification of this fact on the CMR Note.

 

8. Charges and Payment

8.1  In consideration of the provision of the Services by NDF, the Customer shall pay the Charges which shall, subject to this clause 8, be the price set out in the Quotation.

8.2  NDF may by giving written notice to the Customer either before or after the commencement of the Services, increase the Charges to reflect any increase in costs associated with any:

(a) factor beyond NDF’s control, (including foreign exchange fluctuations, increases in taxes and duties (which shall include import and export duties), and increases in labour, materials and manufacturing costs);

(b) change to the Requirements which takes place as a result of:

(i) any notification from the Customer to NDF under clause 3.6; or

(ii) otherwise as may be required in order to comply with Applicable Laws;

(c) delay caused by any instructions of the Customer or failure of the Customer to give NDF adequate or accurate information or instructions in respect of the Services; or

(d) breach of the Contract by the Customer (notwithstanding NDF’s other rights and remedies under the Contract or otherwise in such circumstances).

8.3  The Charges exclude amounts in respect of value added tax (VAT), which where applicable the Customer shall additionally be liable to pay to NDF at the prevailing rate, subject to the receipt of a valid VAT invoice

8.4  The Customer shall, in addition to the Charges, be liable to pay any applicable duties, charges, costs, dues or other expenses that may be payable in respect of the Services.

8.5  Unless otherwise agreed, NDF shall invoice the Customer once the Goods have been delivered.

8.6  Unless otherwise agreed and subject always to the provisions of any Credit Application Form or the alternative agreement in writing between the parties, the Customer shall pay each undisputed invoice submitted to it by NDF within 30 days of the date of the invoice to the bank account nominated in writing by NDF.

8.7  If the Customer fails to make any payment due to NDF under the Contract by the due date for payment, then, without limiting the NDF’s other rights and remedies under the Contact or otherwise (including but not limited to those under the general lien):

(a) the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 8% a year above the Bank of England’s base rate from time to time, but at 8% a year for any period when that base rate is below 0%;

(b) any other invoices issued by NDF to the Customer shall become immediately due for payment; and

(c) NDF may suspend performance of part or all the Services under this Contract or any other contract, until payment has been made in full.

8.8  NDF may at any time, without notice to the Customer, set off any liability owed by the Customer to it against any liability owed by it to the Customer, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under the Contract. If the liabilities to be set off are expressed in different currencies, NDF may convert either liability at a market rate of exchange for the purpose of set-off. Any exercise by NDF of its rights under this clause shall not limit or affect any other rights or remedies available to it under the Contract or otherwise.

 

9. Lien

Within clause 8(A)(ii) of the BIFA Conditions, replace reference to 21 days with reference to 7 days.

 

10. Limitation of Liability

10.1  Clause 23 to clause 26 of the BIFA Conditions shall not apply to the Contract.

10.2  Nothing in the Contract shall limit or exclude NDF’s liability for:

(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);

(b) fraud or fraudulent misrepresentation; or

(c) any matter in respect of which it would be unlawful for NDF to exclude or restrict liability.

10.3  Subject to clause 10.2 and clause 2(B) of the BIFA Conditions:

(a) NDF shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any:

(i) loss of profit;
(ii) loss of goodwill;
(iii) loss of business;
(iv) loss of business opportunity;
(v) loss of anticipated saving;
(vi) loss or corruption of data or information; or
(vii) any indirect, special or consequential Loss,

that arises under or in connection with the Contract; and

(b) NDF’s total liability to the Customer in respect of all other Losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed:

(i) the value of the Goods under the Contract; or

(ii) where the weight of the Goods can be defined, a sum calculated at the rate of 2 SDR per kilo of the gross weight of the Goods under the Contract; or

(iii) 75,000 SDR,

whichever shall be the lesser.

 

11. Force Majeure

11.1  Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from a Force Majeure Event.
11.2  The party affected by a Force Majeure Event shall use all reasonable endeavours to mitigate the effect of a Force Majeure Event on the performance of its obligations.

 

12.  Confidentiality

12.1  Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers or suppliers of the other party, except as permitted by clause 12.2.

12.2  Each party may disclose the other party’s confidential information:

(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 12; and

(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

12.3  No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.

 

13. Notice

13.1  Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:

(a) delivered by hand or by guaranteed  recorded (addressee signed for) post or delivery service at its registered office (if a company) or its principal place of business (in any other case); or

(b) sent by email to:

(i) louise@nextdayfreight.co.uk, in the case of NDF; or

(ii) the email address notified previously in writing by the Customer to NDF, in the case of the Customer.

13.2  Any notice shall be deemed to have been received, if:

(a) delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;

(b) sent by guaranteed recorded (addressee signed for) post or delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or

(c) sent by email, by:

(i) the Customer, at the time at which it has been responded to by NDF from the email address specified in clause 13.1(b)(i); or

(ii) NDF, at 9.00 am on the next Business Day after transmission.

13.3  This clause does not apply to service of any proceedings or other documents in any legal action, or where applicable, any arbitration or other method of dispute resolution.

 

14. General

14.1  Assignment and other dealings.

(a) NDF may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with (Transfer) all or any of its rights or obligations under the Contract.

(b) The Customer may not Transfer any or all of its rights or obligations under the Contract without the prior written consent of NDF.

14.2  Entire agreement.

(a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

(b) Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

14.3  Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

14.4  Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

14.5  Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.

14.6  Third party rights. A person who is not a party to the Contract shall not have any rights to enforce its terms as though it were a party to it and the provisions of the Contracts (Rights of Third Parties) Act 1999 are hereby excluded to the fullest extent permitted by law.

14.7  Multi-tiered dispute resolution procedure. If a dispute arises out of or in connection with this Contract or the performance, validity or enforceability of it (Dispute) then, except as expressly provided in this Contract, the parties may at their discretion follow the procedure set out in this clause:

(a) either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, employees at management level (or the nearest equivalent) of the parties shall attempt in good faith to resolve the Dispute; and

(b) if the management level employees are for any reason unable to resolve the Dispute within 30 days of service of the Dispute Notice, the Dispute shall be referred to the directors of the parties who shall attempt in good faith to resolve it.

(c) If the directors of the parties are for any reason unable to resolve the Dispute within 30 days of it being referred to them, the parties will resolve the Dispute in accordance with clause 28 of the BIFA Conditions.