TERMS and CONDITIONS
The following definitions and rules of interpretation apply in these Terms.
Business Day: a day other than a Saturday, Sunday or public holiday in the United Kingdom and/or the Republic of Ireland and/or the Channel Islands and/or the Isle of Man.
Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 7 (Charges and payment).
Commencement Date: has the meaning given in clause 2.2.
Company: M&H GROUP (SCOTLAND) LIMITED registered in Scotland with company number SC244945 and such other member of its group of companies which may accept an Order from time to time including but not limited to M&H Carriers (Aberdeen) Limited a company registered in Scotland with company number SC244943; M&H Carriers (Inverness) Limited a company registered in Scotland with company number SC182304; and M&H Carriers (Dundee) Limited a company registered in Scotland with company number SC210590.
Completion Time: the date and time by which the Company has undertaken to carry out the Services by.
Consignment: goods (whether a single item or multiple items in bulk or contained in one parcel, package or container, as the case may be, or any number of separate items, parcels, packages or containers sent at one time in one load by or for the Customer from one address to one address) being carried under a Contract by the Company.
Contract: the contract between the Company and the Customer for the supply of Services in accordance with these Terms.
Controller and processor: as defined in the Data Protection Legislation.
Customer: the person or firm who purchases Services from the Company.
Customer Default: has the meaning set out in clause 4.12.
Damage: any damage to a Consignment during the period that the Company is responsible for the Consignment taking into account the condition of the Consignment when it was collected by the Company or delivered at the Company’s depot.
Dangerous Goods: any goods which the Company deems in its sole discretion to be dangerous from time to time (including without limitation the type of goods listed as dangerous in the Carriage of Dangerous Goods and Use of Transportable Pressure Equipment (Amendment) Regulations 2011 and the European Agreement Concerning the International Carriage of Dangerous Goods by Road (ADR) or any other rules applicable to the transportation or other services regarding dangerous goods)
Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.
Deliverables: the deliverables set out in the Order produced by the Company for the Customer.
Loss: while the Company is responsible for the Consignment, the loss or mis-delivery of a Consignment. No loss shall be deemed to have taken place until three (3) business days after the Completion Time.
Order: the Customer’s order for Services whether placed in person, by email or telephone or as set out in the Customer’s purchase order form, the Customer’s written acceptance of a quotation by the Company, or overleaf, as the case may be.
Prohibited Goods: any goods which the Company has notified the Customer from time to time that cannot be included in any Consignment.
Recipient: the recipient of the Consignment.
Sales Pack: means the sales pack provided by the Company to the Customer setting out, among other things, the prices of the Services and the costs of additional liability as the same may be updated by the Company from time to time.
Services: the collection and delivery services supplied by the Company to the Customer.
Service Location: the agreed location(s) for the Company to carry out the collection and/or delivery services.
Terms: these terms and conditions as the same may be amended from time to time by the Company.
Transit: the period of time when the Consignment is in the Company’s (or it’s sub-contractor’s) possession or control.
UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
- A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
- Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
- A reference to writing or written includes fax and email.
2. Basis of contract
2.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these Terms.
2.2 The Order shall be deemed to be accepted and the Contract concluded upon the earlier of (a) the date on which the Company issues written acceptance of the Order and (b) the date on which the Customer signs and returns the Sales Pack incorporating these Terms, at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 Any descriptive matter or advertising issued by the Company, and any descriptions or illustrations contained in the Company’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.4 These Terms apply to the Contract 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. In the event of any conflict between these Terms and the Sales Pack, the Sales Pack shall be given priority over the relevant conflicting provision of these Terms.
2.5 Any quotation given by the Company shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.
3. Supply of Services
3.1 These Terms apply to all contracts entered into by the Company for the provision of Services.
3.2 Any Contract relating to the transport by road of goods and/or installation of machinery within or between the United Kingdom and/or the Republic of Ireland and/or the Channel Islands and/or the Isle of Man shall be subject to the Road Haulage Association Limited Conditions of Carriage 2009 where the Company is referred to as “the Carrier”. Any Contract that relates to the carriage of goods by road outside and beyond the United Kingdom shall also be subject to the provisions of the Convention on the Contract for the International Carriage of Goods by Road (CMR) and are otherwise subject to such legislation as may from time to time be applicable.
3.3 Any Contract relating to the storage or warehousing of goods shall be subject to the Road Haulage Association Limited Conditions of Storage 2009 where the Company is referred to as “the Contractor”.
3.4 The Company shall supply the Services to the Customer in accordance with these Terms.
3.5 The Customer agrees and acknowledges that the Company is not a common carrier and may refuse to accept any Consignment or part thereof or refuse to perform the Services in relation to any Consignment if the Consignment does not comply with these Terms.
3.6 The Company will use all reasonable endeavours to ensure that Services are performed by the Completion Time. However, the parties to the Contract acknowledge that the Completion Time is an estimate only and time is not of the essence regarding the Services provided by the Company.
3.7 The Company reserves the right to amend the Services if necessary to comply with any applicable law, regulatory requirement, safety requirement or otherwise in any manner if the amendment will not materially affect the nature or quality of the Services. The Company shall use reasonable endeavours to notify the Customer in any such event.
3.8 The Company warrants to the Customer that the Services will be provided using reasonable care and skill.
3.9 The Company shall not be required to perform the Services at any other Service Location other than those agreed in writing between the Company and the Customer. If the Company agrees to perform the Services other than at the specified Service Location it shall be at the sole risk of the Customer.
3.10 The Company reserves the right to appoint sub-contractors to perform all or some of the Services and such sub-contractors may in-turn appoint sub-sub-contractors. Any such sub-contractors shall have the benefit of the Contract and shall be entitled to enforce the Contract directly against the Customer.
3.11 The Company shall not be obliged to perform Services in relation to Dangerous Goods or any other Prohibited Goods. The Customer is prohibited from including Dangerous Goods or Prohibited Goods in any Consignment without the prior agreement of the Company.
3.12 The Customer agrees that the Company or any other third party may open and inspect a Consignment at any time and the Customer agrees that the Consignment can be inspected, x-rayed and subjected to any other tests. If the Consignment is found to be or contain Dangerous Goods or Prohibited Goods, the Company, at its sole and absolute discretion, can deal with the Consignment including destroying or disposing of the Consignment or returning it to the Customer. The Company nor the Recipient shall incur any liability as a result of the Company dealing with the Consignment. The Company is entitled to charge the Customer to destroy, dispose or return the Consignment.
4. Customer’s obligations
4.1 The Customer shall ensure all details to allow the Company to carry out the Services are accurate and any errors identified are notified to the Company as soon as possible.
4.2 The Customer shall ensure any Consignment falls within these Terms.
4.3 The Customer shall ensure it has met all the requirements to allow the Consignment to be transported at its own cost. This includes but is not limited to custom and export duties, rights, licences and permits.
4.4 The Customer shall ensure that it has appropriate insurances in place to cover any shortfall of the value of the Consignment it can claim from the Company in circumstances of Loss or Damage.
4.5 The Customer shall ensure that the terms of the Order are complete and accurate.
4.6 The Customer shall co-operate with the Company in all matters relating to the Services. The Company is only obliged to provide one individual and one vehicle to carry out the Services. In circumstances where additional labour is required to load and/or unload the Consignment to/from the Company’s vehicle, the Customer warrants to provide this additional labour or for it be provided on the Customer’s behalf.
4.7 The Customer acknowledges that if assistance or special equipment is required to load and/or unload a Consignment (as determined at the sole discretion of the Company), and the Customer does not provide said assistance or special equipment, the Company shall be permitted to refuse to perform the Services. Should the Company decide to provide additional assistance or special equipment to carry out the Services, the Customer shall be responsible for the cost of such assistance and special equipment.
4.8 The Customer acknowledges that if any of the Customer’s employees or a third party on behalf of the Customer provides assistance to the Company to load and/or unload a Consignment, they do so at their own risk. To the fullest extent permitted by law, the Company shall not be liable for any loss, personal injury or death suffered by the Company, or any of its employees or third parties as a result.
4.9 The Customer shall be responsible for and indemnify the Company for any loss, demands, damages, claims, proceedings, fines, penalties, expenses, loss of or damage to a vehicle and any goods carried, or liability suffered or incurred by the Company as a result of:
- injury to persons or damage to property as a result of non-compliance with the provisions of these Terms;
- the Company being instructed to load and/or unload a Consignment without the required labour or equipment being supplied by the Customer; and
- the Customer using the Services of the Company for a Consignment which is illegal.
4.10 The Customer shall provide the Company with such information and materials as the Company may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects.
4.11 The Customer shall ensure any Consignment complies with all applicable laws.
4.12 If the Company’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
- without limiting or affecting any other right or remedy available to it, the Company shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Company’s performance of any of its obligations;
- the Company shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Company’s failure or delay to perform any of its obligations as set out in this clause 4.12; and
- the Customer shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Customer Default.
5.1 Subject to clause 12, Transit shall commence when the Company takes possession of the Consignment whether being collected at the Service Location or at the Company’s premises.
5.2 Transit shall end when the Consignment is tendered at the Recipient’s address (as instructed by the Customer):
- if no safe and adequate access or no adequate unloading facilities there exist, then Transit shall be deemed to end at the expiry of one clear day after notice in writing of the arrival of the Consignment at the Company’s premises has been sent to the Recipient;
- when for any other reason whatsoever a Consignment cannot be delivered or when a Consignment is held by the Company ‘to await order’ or ‘to be kept till called for’ or upon any like instructions and such instructions are not given or the Consignment is not called for and removed within 20 Business Days, then Transit shall also be deemed to end.
6. Undelivered or Unclaimed Consignments
Where the Company is unable for any reason to deliver a Consignment to the Recipient or as he may order, or where by virtue to clause 5.2 hereof Transit is deemed to be at an end, the Company may sell the Consignment and payment or tender of the proceeds after deduction of all proper charges and expenses in relation thereto and of all outstanding charges in relation to the carriage and storage of the Consignment shall discharge the Company from all liability in respect of such Consignment, its carriage and storage; provided that the Company shall do what is reasonable to obtain the value of the Consignment.
7. Charges and payment
7.1 The Company shall invoice the Customer on a weekly or monthly basis in arrears.
7.2 The Customer shall pay each invoice submitted by the Company:
- within 30 days of the date of the invoice or in accordance with any credit terms agreed by the Company and confirmed in writing to the Customer; and
- in full and in cleared funds to a bank account nominated in writing by the Company, and
time for payment shall be of the essence of the Contract.
7.3 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Company to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Company, pay to the Company such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
7.4 If the Customer fails to make a payment due to the Company under the Contract by the due date, then, without limiting the Company’s remedies under clause 13, 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 7.4 will accrue each day at the rate of interest specified in the Late Payment of Commercial Debts (Interests) Act 1998.
7.5 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
7.6 Should it be necessary for the Company to instruct a third party (e.g. a solicitor or debt collection agency) to collect any outstanding balance on behalf of the Company, then the following additional administration charges shall be payable:
Outstanding balance up to £500 – £20 payable
Outstanding balances between £501 – £1,000 – £40 payable
Outstanding balances in excess of £1,000 – £60 payable
The Customer shall also be liable to reimburse the Company for any court fees or solicitor fees incurred by the Company in order to recover any unpaid invoices by the Customer.
8.1 The Company shall have:
- a special lien on the Consignment, and
- a general lien against the Customer for sums unpaid on an invoice, account or Contract whatsoever.
If such lien, whether special or general, is not satisfied within twenty Business Days pf exercise by the Company, the Company may sell the Consignment, or part thereof, as agent for the Customer and/or owner and apply the proceeds towards any sums unpaid and the expenses of the retention, insurance and sale of the Consignment and shall, upon accounting to the Customer for any balance remaining, be discharged from all liability whatsoever in respect of the Consignment.
8.2 The Company may exercise its lien on its own behalf or as agent for any assignee of its invoices at any time and at any place at its sole discretion whether or not sums have become payable in accordance with this clause 8 and whether or not the Services have been completed and this clause 8 shall continue to apply during the period of exercise of such lien.
9. Data protection
9.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 9 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
9.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the controller and the Company is the processor.
10. Limitation of liability
10.1 Except as otherwise provided in these Terms, the liability of the Company in respect of claims for physical loss, mis-delivery of or damage to goods comprising the Consignment, howsoever arising, shall in all circumstances be limited to the lesser of:
- the value of the goods actually lost, mis-delivered or damaged; or
- the cost of repairing any damage or of reconditioning of the goods; or
- a sum calculated at the rate of £1,300 Sterling per tonne on the gross weight of the goods actually lost, mis-delivered or damaged;
and the value of the goods actually lost, mis-delivered or damaged shall be taken to be their invoice value if they have been sold and shall otherwise be taken to be the replacement cost thereof to the owner at the commencement of Transit, and in all cases shall be taken to include any Customs and Excise duties or taxes payable in respect of those goods:
- the Company shall not be liable for the first £250 of any claim;
- in the case of loss, mis-delivery of or damage to a part of the Consignment the weight to be taken into consideration in determining the amount to which the Company’s liability is limited shall be only the gross weight of that part regardless of whether the loss, mis-delivery or damage affects the value of other parts of the Consignment; and
- the Company shall be entitled to proof of the weight and value of the whole of the Consignment and of any part thereof lost, mis-delivered or damaged.
10.2 The Company shall not in any event be liable for any consequential or indirect loss including, but not limited to:
- loss of profits,
- loss of market,
- loss due to fire or the consequences of fire,
- loss due to late delivery,
- seizure or forfeiture under legal process,
- insufficient or improper packaging, and
- insufficient or improper labelling or addressing.
10.3 This clause 10 shall survive termination of the Contract.
11. Indemnity to the Company
11.1 In addition to the indemnities set out elsewhere in these Terms, the Customer shall indemnify, keep indemnified and hold the Company and its sub-contractors harmless against:
- all loses, damages, costs and expenses (of whatever nature) or liabilities incurred or awarded against the Company or its sub-contractors (including but not limited to claims, demands, proceedings, fines, penalties, damages, expenses and loss of or damage to the carrying vehicle and to other goods carried) by reason of:
- any error, omission, mis-statement or misrepresentation by the Customer, the owner of the Consignment, the Recipient or employee or agent of them;
- insufficient or improper packing, labelling or addressing of the Consignment;
- fraud or criminal activity by the Customer.
- all claims and demands whatsoever (including for the avoidance of doubt claims alleging negligence), by whomsoever made and howsoever arising (including but not limited to claims caused by or arising out of the carriage of Dangerous Goods and made upon the Company by H.M. Revenue and Customs in respect of dutiable goods consigned in bond) in excess of the liability of the Company under these Terms in respect of any loss or damage whatsoever to, or in connection with, the Consignment whether or not caused or contributed to directly or indirectly by any act, omission, neglect, default or other wrongdoing on the part of the Company, its employees, agents or sub-contractors.
12.1 The Company shall not be liable for:
- damage to the whole or any part of the Consignment, or physical loss, mis-delivery or non-delivery of part of the Consignment unless advised thereof in writing within three (3) Business Days, and the claim is made in writing within ten (10) Business Days of actual delivery of the Consignment;
- any other loss unless advised thereof in writing within twenty (20) Business Days, and the claim is made in writing within thirty (30) Business Days, after the commencement of Transit.
12.2 The Company and its sub-contractors shall in any event be discharged from all liability whatsoever and howsoever arising in respect of the Consignment unless proceedings are commenced and notice in writing is given to the Company within one (1) year of the date when Transit commenced.
12.3 The Customer cannot in any circumstances make a claim to the Company in relation to the following items:
- Credit and Debit Cards;
- Unpacked/Oversized Goods;
- Money and Coins;
- Personal Effects;
- Tobacco and Tobacco Products;
- Postage Stamps/Precious Metals and Stone;
- Returned Consignments;
- Jewellery/Watches (unless prior notice has been given to the Company); and
- Mobile Phones (unless prior notice has been given to the Company).
13.1 Without affecting any other right or remedy available to it, the Company may terminate the Contract with immediate effect by giving written notice to the Customer if:
- the Customer commits a material breach of any term of the Contract;
- the Consignment is, or contains, Dangerous Goods or Prohibited Goods; or
- the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business.
14. Consequences of termination
14.1 On termination of the Contract the Customer shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the Customer immediately on receipt.
14.2 Termination or expiry of the Contract shall not affect any rights or remedies of the Company that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
14.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
15. Force Majeure
15.1 The Company shall not be in breach of these Terms or the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract or any Damage or Loss caused if such delay, failure, Damage or Loss results from events, circumstances or causes beyond its or its sub-contractors’ control (including, but not limited to, an act of God, riots, civil commotion, lockout, road traffic accident, delay or cancellation of ferries, flights, railway or other transport, strikes, general or partial stoppage or restraint of labour howsoever caused, an epidemic or pandemic, war, invasion, acts of a foreign enemy, hostilities (whether war or not) civil war, rebellion, insurrection, military or usurped power or confiscation, requisition, or destruction or damage by or under any government or local or public authority, acts of terrorism, requisition or destruction of or damage to property, seizure or forfeiture under legal process and similar events).
16.1 The Customer shall not be permitted to assign nor otherwise transfer its rights and/or obligations under the Contract to a third party. The Company may assign its rights and/or obligations under the Contract.
- Each of the Company and the Customer severally undertake to each other that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers or clients of the other party, except as permitted by clause 17(b).
- The Company and the Customer may disclose the other party’s confidential information:
- to its employees, officers, representatives, sub-contractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 17; and
- as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
- Neither the Company nor the Customer shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
18. Entire agreement
- The Contract constitutes the entire agreement between the Company and the Customer and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
- The Company and the Customer acknowledges that in entering into the Contract it does not rely on, and 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 or these Terms. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
19.1 Except as set out in these Terms, no variation of the Contract shall be effective unless it is in writing and signed by the Company and the Customer (or their authorised representatives).
19.2 The Company reserves the right to vary these Terms from time to time on providing 30 days prior written notice to the Customer and such amended Terms shall apply to all Orders placed subsequent to the effective date of variation of these Terms.
20.1 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.
21.1 Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case).
22. Third party rights
22.1 Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
23. Governing law
23.1 The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of Scotland.
24.1 Each party irrevocably agrees that the courts of Scotland shall have non-exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.