THE CUSTOMER’S ATTENTION IS SPECIFICALLY DRAWN TO CLAUSES 4.4, 9, 10, 11, 12.3, 16.10 AND 16.11.
PART A – GENERAL TERMS
Definitions and Interpretation
Agreement: the contract between the Provider and the Customer comprising the Quotation, these Standard Terms and Conditions, and each Order.
Applicable Laws: the laws of England and Wales and any other laws or regulations, regulatory policies, guidelines or industry codes which apply to the Customer Items, Goods and Services or any of them, as applicable.
Charges: the fees for the Services and for amounts payable for any Provider Packaging set out in the Quotation, as amended in accordance with this Agreement from time to time.
Confidential Information: any information, which by its nature is confidential, concerning the business, assets, affairs, customers or suppliers of the other party.
Consignee: the person to whom the Customer instructs the Provider to deliver a consignment of Goods.
CoPacking Services: the packing by the Provider of the Free Issue Goods into the Packaging.
Customer: the recipient of the Services, identified in the Quotation.
Customer Items: Free-Issue Goods, Stored Goods and Customer Packaging, or any of them as the context requires.
Customer Packaging: packaging materials which are supplied by the Customer to the Provider to package the Free Issue Goods.
Delivery: the transfer of physical possession of a consignment of Goods to the Consignee or its agent.
Delivery Instruction: a written instruction from the Customer to the Provider to deliver Goods to a Consignee, which shall contain: (i) the name and address of the Consignee; (ii) the Delivery Point; (iii) the delivery time; (iv) particulars of the Goods to be delivered; and (v) any special requirements concerning the Delivery.
Delivery Point: the location for Delivery specified in the Delivery Instruction, falling within the range of countries which the Provider agrees to deliver to from time to time.
Delivery Services: the Delivery of a consignment of Goods.
E-Fulfilment Services: the process of picking and packing Goods which are the subject of a E-Fulfilment Instruction, in readiness for delivery or collection from the Facility, but excluding the Delivery Services.
E-Fulfilment Instruction: an order for E-Fulfilment Services in respect of Goods which is received by the Provider through the e-portal which links the Provider’s system to the Customer’s order processing system.
Facility: the Provider’s premises at Unit C, Logistics City, Houndmills Rd, Basingstoke RG21 6XL or such other location as may be notified to the Customer from time to time.
Free Issue Goods: materials or items which are supplied by the Customer to the Provider to be packed into the Packaging.
Goods: Stored Goods and Packaged Goods, or either of them as the context requires.
Order: means each request from the Customer for Services, which is accepted by the Provider in accordance with the terms of this Agreement, including Storage Requests, E-Fulfilment Instructions and Delivery Instructions (as applicable).
Packaged Goods: the Free Issue Goods which have been packed into the Packaging as part of the CoPacking Services or the Sleeving Services, including the Packaging comprised in such Packaged Goods.
Packaging: means the Customer Packaging or the Provider Packaging, as applicable.
Provider: the provider of the Services being Prism ELogistics (UK) Limited with company number 12749845 whose registered office address is Ava Lodge, Castle Terrace, Berwick Upon Tweed, Northumberland, England.
Provider Packaging: packaging materials which are supplied by the Provider.
Quotation: the Provider’s quote setting out the Services to be provided, the prices and any other relevant terms.
Services: the types of services which the Provider has agreed to perform as specified in the Quotation, comprising one or more of the following: CoPacking Services, the Sleeving Services, Storage Services, E-Fulfilment Services and Delivery Services.
Sleeving Services: the application of a printed plastic sleeve to a container.
Storage Services: warehousing and storage of Stored Goods.
Storage Request: the Customer's written request for a consignment of Stored Goods to be stored at the Facility.
Stored Goods: goods delivered to the Provider (or its agent) for storage following acceptance of a Storage Request, or Packaged Goods which the Provider agrees to store following a request from the Customer.
References to: (i) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality); (ii) writing or written excludes fax but not email; and (iii) including or include shall be construed without limitation.
1. Basis of contract
1.1 The Agreement constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Provider which is not set out in the Agreement.
1.2 Any drawings, descriptive matter or advertising issued by the Provider relating to the Services or Provider Packaging contained in the Provider's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Provider Packaging and shall not form part of the Agreement.
1.3 The terms of the Agreement apply 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.
1.4 Any Quotation given by the Provider shall not constitute an offer, and is only valid for the period stated.
2. Provider's general obligations
2.1 The Provider warrants that:
(a) the Services shall be performed in accordance with the Order in all material respects and using reasonable care and skill; and
(b) on delivery or collection the Packaged Goods shall conform with the description or specification in the Order.
2.2 The Provider shall use reasonable efforts to meet any performance or delivery times agreed for the Services, but these are estimates only.
3. Customer’s general obligations
3.1 On a monthly basis the Customer shall give the Provider its forecast of the volume of Services it expects to require during the following month. The Customer shall act in good faith when forecasting its requirements, and shall inform the Provider in writing as soon as practicable if its requirements for the Services may differ materially from any of the forecasts.
3.2 The Customer warrants on an ongoing basis that:
(a) it has supplied to the Provider all material information relating to its requirements for the Services;
(b) it shall provide all documents, information and approvals reasonably requested by the Provider to enable it to provide the Services in accordance with this Agreement within a reasonable time of the request; and
(c) it shall act in accordance with all Applicable Laws at all times.
3.3 The Customer warrants that all information provided by it (including in Orders) shall be complete and accurate, and agrees that the Provider shall not have any liability arising from errors or omissions in such information.
4. Charges
4.1 In consideration of the provision of the Services by the Provider, the Customer shall pay the Charges.
4.2 All Charges are stated exclusive of value added tax which shall be paid by the Customer at the rate and from time to time in the manner prescribed by law.
4.3 The Provider may increase the Charges for the Storage Services, E-Fulfilment Services and Delivery Services on an annual basis in line with the percentage increase in the Consumer Prices Index (including owner-occupier's housing costs) in the preceding 12-month period.
4.4 The Provider reserves the right to increase the Charges, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost that is due to:
(a) any factor beyond the control of the Provider (including increases in taxes and duties, changes in Applicable Laws, or increases in labour, materials, utilities, manufacturing or haulage costs);
(b) any request by the Customer to change the requirements of the Order; or
(c) any breach of the Agreement by the Customer or failure of the Customer to give the Provider adequate or accurate information or instructions in respect of the Order.
5. Invoicing and payment
5.1 The first Order for CoPacking Services or Sleeving Services shall be invoiced and paid in advance. Otherwise and subject to a satisfactory credit check, the Provider shall invoice the Customer: (i) on completion in relation to ad hoc orders for CoPacking Services and Sleeving Services; or (ii) at the end of each month for Services performed on an ongoing basis.
5.2 The Customer shall pay each invoice within 30 days of the date of the invoice, to a bank account nominated in writing by the Provider from time to time.
5.3 If a party fails to make any payment due to the other party under this Agreement by the due date for payment, the defaulting party 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 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
5.4 The Customer shall pay all amounts due under the Agreement in full without any set-off, counterclaim, deduction or withholding except as required by law. The Provider may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Provider to the Customer.
6. Right of lien
6.1 The Provider shall have a general and particular lien on the Customer Items and Packaged Goods in its possession as security for payment of all sums claimed by the Provider from the Customer.
6.2 If an invoice for the Charges is not paid in full on its due date for payment, the Provider may give notice in writing to the Customer of its intention to sell or otherwise dispose of some or all of the Customer Items and Packaged Goods in its possession if the amount outstanding is not paid in full within ten (10) days.
6.3 If the amount due is not paid by the expiry of such period, the Provider may sell or otherwise dispose of some or all of the Customer Items and Packaged Goods in its possession, as agent of the Customer and at the Customer's expense and risk, and shall remit the proceeds of sale or disposal of such Customer Items and Packaged Goods to the Customer after deduction of all amounts due to the Provider and the expenses incurred by the Provider for such sale or disposal. The Provider shall not be liable for the price obtained for the sale or disposal of the Customer Items and Packaged Goods.
6.4 Where disposal costs (if any) exceed the proceeds of sale / disposal (if any), the Customer shall reimburse the Provider for such costs within seven (7) days from receipt of an invoice from the Provider.
7. Title
7.1 Title to the Packaged Product shall not pass to the Customer until the earlier of:
(a) the Provider receives payment in full (in cash or cleared funds) for the Order and all other sums that are or that become due to the Provider from the Customer on any account, in which case title to those Packaged Products shall pass at the time of payment of all such sums; and
(b) the Customer resells those Packaged Products, in which case title to those Packaged Products shall pass to the Customer at the time specified in clause 7.3.
7.2 Until title to the Packaged Products has passed to the Customer, the Customer shall:
(a) store the Packaged Products separately so that they remain readily identifiable as the Provider's property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Packaged Products;
(c) maintain the Packaged Products in satisfactory condition and keep them insured against all risks for their full price on the Provider's behalf from the date of delivery; and
(d) give the Provider such information as the Provider may reasonably require from time to time relating to the Packaged Products and the ongoing financial position of the Customer.
7.3 Subject to clause 7.4, the Customer may use the Packaged Products or sell them to a bona fide purchaser in the ordinary course of the Customer’s business (but not otherwise) before the Provider receives payment for the Order. However, if the Customer sells the Packaged Products before that time:
(a) it does so as principal and not as the Provider's agent; and
(b) title to those Packaged Products shall pass from the Provider to the Customer immediately before the time at which the sale by the Customer occurs.
7.4 At any time before title to the Packaged Products passes to the Customer, the Provider may:
(a) by notice in writing, terminate the Customer's right to resell the Packaged Products or use them in the ordinary course of its business; and
(b) require the Customer to deliver up all Packaged Products in its possession which have not been resold, or irrevocably incorporated into another product, and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Packaged Products are stored in order to recover them (and the Customer shall procure such access for the Provider or its representatives).
8. Transfer of Risk
8.1 Risk in the Customer Items shall pass to the Provider when they are transferred into the Provider’s physical possession at the Facility.
8.2 The Provider shall be responsible for unloading Customer Items at the Facility, and they shall be at the Provider's risk during unloading, save that the Provider shall not be liable for any loss or damage caused as a result of negligent acts of the Customer or their servants or agents in assisting with unloading or in failing to pack the Customer Items securely.
8.3 Risk in the Goods shall transfer from the Provider upon their delivery into the possession of any of:
(a) the Customer or its carrier, agent or logistics provider, where the Customer collects or arranges collection of the Goods from the Facility; or
(b) the Consignee, where the Services include the Delivery Services.
8.4 Where the Customer collects the Goods from the Facility, the Provider shall load them onto the trucks and they shall be at the Provider's risk during loading, save that the Provider shall not be liable for any loss or damage caused as a result of negligent acts of the Customer or their servants or agents in assisting with loading or in relation to defects in the trucks or other equipment provided by the Customer or its servants or agents.
8.5 Where the Provider performs Delivery Services, it shall be responsible for unloading the Goods at the Delivery Point.
9. Liability
9.1 References to liability in this clause 9 include every kind of liability arising under or in connection with this Agreement including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
9.2 Nothing in this Agreement limits or excludes any liability for death or personal injury caused by negligence, fraud or fraudulent misrepresentation, or any liability which cannot legally be limited.
9.3 If the Customer breaches any of its obligations under this Agreement (Customer Default), the Provider shall be entitled to suspend performance of the Services until the Customer Default is remedied, and the Provider shall be released from any breach of this Agreement to the extent arising from the Customer Default.
9.4 Subject to clauses 9.2 and 9.5, and without prejudice to clause 16.11, the Provider's total liability to the Customer for:
(a) loss or damage to Customer Items or Packaged Goods relating to any of the Services other than the Delivery Services and which arises by reason of any act or omission by or on behalf of the Provider shall not exceed £100 per tonne;
(b) loss or damage to Customer Items or Packaged Goods relating to Delivery Services and which arises by reason of any act or omission by or on behalf of the Provider shall not exceed £1,300 per tonne where delivery is made by pallet service, or the applicable limit specified in the Quotation where delivery is made by courier service;
(c) delay in performing or failure to perform the Services shall be limited to the value of the Charges for the affected Services under the relevant Order, plus where applicable the return of the Customer Items in their original condition, or if such return is not possible, shall be limited to the amount stated in clause 9.4(a) or 9.4(b) as applicable; and
(d) for all other breaches of duty shall be limited to the value of the Charges under the Order to which the claim relates.
9.5 The Provider shall be entitled to a loss tolerance of 0.2% of the total value of the Customer Items or Packaged Goods held in the Facility determined on the last business day of each quarter (Loss Tolerance) provided that the Provider shall at all times use its best endeavours to minimise any Loss. The parties shall apply the Loss Tolerance before calculating the liability of the Provider to the Customer for any losses under clause 9.4.
9.6 Subject to clause 9.2, the Provider shall under no circumstances whatever be liable to the Customer for:
(a) any loss of profit, loss of reputation, loss of business, revenue or goodwill, anticipated savings, loss or damage to data, or any indirect or consequential loss arising under or in connection with the Agreement; or
(b) loss or damage caused by inherent liability due to wastage in bulk or weight, latent or inherent defect, vice or natural deterioration of the Customer Items or Packaged Goods.
9.7 Without prejudice to clause 16.11, unless the Customer notifies the Provider that it intends to make a claim in respect of an event within three (3) months from the date the Customer became, or ought reasonably to have become, aware of the event giving rise to a claim having occurred, the Provider shall have no liability for that event. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
9.8 All warranties, conditions or terms not set out in the Agreement and which would otherwise be implied or incorporated by statute, common law or otherwise are excluded except to the extent they may not be excluded or limited by law.
10. Insurance
10.1 The limits and exclusions in clause 9 reflect the insurance cover the Provider has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess loss.
10.2 The Customer shall maintain insurance for the Customer Items at all times and shall hold goods in transit insurance for the Goods.
11. Customer's indemnities
The Customer shall indemnify the Provider against all liabilities, costs, expenses, damages and losses (including legal costs) suffered or incurred by the Provider arising out of or in connection with:
(a) any breach of warranty by the Customer;
(b) any claim made against the Provider for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the Provider’s possession or use of any of the Customer Items;
(c) any claim made against the Provider arising out of the Customer's failure to comply with any statutory or HM Revenue & Customs requirements, including administrative requirements, concerning the payment of tax, customs or duties in respect of any of the Customer Items or Packaged Goods; and
(d) any claim made against the Provider for conversion arising out of or in connection with the storage or handling of any of the Customer Items or Packaged Goods.
12. Termination
12.1 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 business days after being notified in writing to do so;
(b) the other party 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), obtaining a moratorium, 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 or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business;
(d) the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this Agreement is in jeopardy .
12.2 Without affecting any other right or remedy available to it, the Provider may terminate this Agreement with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment.
12.3 Either party may terminate the Storage Services, the E-Fulfilment Services and the Delivery Services or any of them on 12 weeks written notice to the other party on the following terms:
(a) an exit period shall run for 12 weeks from the date of the termination notice (Exit Period);
(b) the Customer shall pay 12 weeks’ worth of: (i) Charges for the Storage Services; (ii) management fee; and (iii) licence fee; calculated based on the amount of the those charges at the date of notice of termination (Termination Charge);
(c) following receipt by the Provider of the Termination Charge in full, the Customer shall be entitled to collect or order the delivery of the Goods, either on the last day of the Exit Period or at any time during the Exit Period (but early collection shall not reduce the Termination Charge);
(d) the Customer shall not be entitled to collect or order the delivery of the Goods until the Termination Charge is paid; and
(e) the Termination Charge shall apply in place of the Storage Charges during the Exit Period, but the Charges for the E-Fulfilment Services and Delivery Services shall continue to apply as normal during the Exit Period.
13. Consequences of termination and survival
13.1 On termination:
(a) the Provider shall complete all outstanding E-Fulfilment Instructions and Delivery Instructions;
(b) the Customer shall remove or procure the removal of the Packaged Goods and any Customer Items still in storage at the Facility, following which the Customer's right to access the Facility shall terminate;
(c) the Customer and Provider shall take any actions necessary to disconnect the E-Portal from the Customer’s systems; and
(d) the Customer shall immediately pay all the Provider's outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, the Provider may submit an invoice, which the Customer shall pay immediately on receipt.
13.2 If the Customer fails to remove all of the Packaged Goods and Customer Items as required by clause 13.1 the Provider may, without prejudice to its other rights and remedies, give notice in writing to the Customer of its intention to sell or otherwise dispose of such Packaged Goods and Customer Items if they are not removed within ten (10) days or, in the case of perishable goods, within three (3) days of the date of the notice. On the expiry of such period, the Provider shall be entitled to sell or otherwise dispose of all or some of the Packaged Goods and Customer Items which have not been removed, as agent of the Customer and at the Customer's expense and risk, and shall remit the proceeds of sale or disposal of such Packaged Goods and Customer Items to the Customer after deduction of all amounts due to the Provider from the Customer and the expenses incurred by the Provider for the sale or disposal. The Provider shall not be liable for the price obtained for the sale or disposal of the Packaged Goods and Customer Items. Where disposal costs (if any) exceed the proceeds of sale / disposal (if any), the Customer shall reimburse the Provider for such costs within seven (7) days from receipt of an invoice from the Provider.
13.3 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect, including clauses 6, 7, 9, 11, 15 and 16.11.
13.4 Termination of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination.
14. Data Protection
14.1 In this clause, Data Protection Legislation means all applicable data protection and privacy legislation in force from time to time in the UK, and Controller, Processor, Data Subject, Personal Data and Personal Data Breach have the meanings given in the Data Protection Legislation.
14.2 The Customer may provide names and addresses of persons to whom delivery of Goods is to be made, which the Provider shall process only for the purpose of providing the E-Fulfilment Services and Delivery Services for the duration of such services. The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller and the Provider is the Processor.
14.3 Both parties will comply with all applicable requirements of the Data Protection Legislation.
14.4 The Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Provider.
14.5 The Provider shall:
(a) ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of Personal Data;
(b) not transfer any Personal Data outside of the UK;
(c) assist the Customer, at the Customer's cost, in responding to any request from a Data Subject;
(d) notify the Customer without undue delay on becoming aware of a Personal Data Breach; and
(e) be permitted to appoint hauliers to perform the Delivery Services as a third-party processor.
15. Other important terms
15.1 Dispute resolution procedure: If either party has a complaint about the performance by the other party of its obligations under the Contract, it shall first raise the matter in writing with the usual day to day contact at the other party (Level 1 Representatives), who shall negotiate with each other in good faith for fourteen (14) days to seek to resolve the matter. If the matter is not resolved between the Level 1 Representatives within fourteen (14) days, the matter shall be referred to a director of each party, who shall negotiate with each other in good faith for fourteen (14) days to seek to resolve the matter. Neither party shall exercise any right of termination of this Agreement until the process in this clause 15.1 has been completed.
15.2 Confidentiality: Each party undertakes that it shall not use the other party's Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement, and shall not at any time disclose to any person any Confidential Information, except:
(a) to its employees, officers, representatives, contractors, subcontractors 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 this Agreement. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's Confidential Information comply with this clause 15.2; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
15.3 Publicity: The Provider shall be permitted to publish details of the services provided to the Customer (including the Customer’s name and logo) on social media and other promotional material provided it obtains the Customer’s prior written approval of the form of wording.
15.4 Force majeure: If a party is prevented, hindered or delayed in or from performing any of its obligations under this Agreement by any circumstance not within its reasonable control, such party shall not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
15.5 Entire agreement: This Agreement constitutes the entire agreement between the parties. Each party acknowledges that in entering into this Agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
15.6 Remedies are cumulative: The Provider’s rights and remedies provided by this Agreement are cumulative and (unless otherwise provided in this Agreement) are not exclusive of any rights or remedies provided by law or in this Agreement.
15.7 Variation: No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
15.8 Assignment and other dealings: Neither party shall assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement, except that the Provider may use subcontractors to perform the Delivery Services.
15.9 Waiver: A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
15.10 Severance: If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.
15.11 Notices: Notices under this Agreement shall be in writing and served by personal delivery, email, or by pre-paid recorded delivery. Notices shall be deemed to be served on delivery where delivered personally; after one (1) business day if sent by email and no message has been received as to the unsuccessful delivery of such email; or after two (2) business days after mailing if sent by pre-paid recorded delivery.
15.12 Third party rights: This Agreement does not give rise to any rights to any person not a party to it.
15.13 Governing law: 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 or formation shall be governed by and construed in accordance with the law of England and Wales.
15.14 Jurisdiction: Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.
PART B – TERMS APPLICABLE ONLY TO COPACKING SERVICES AND SLEEVING SERVICES
16. CoPacking Services and Sleeving Services
16.1 The Customer shall issue an order to request CoPacking Services or Sleeving Services (plus the supply of Provider Packaging if applicable) from time to time, which the Provider shall be free to accept or decline at its discretion. The Agreement for CoPacking Services or Sleeving Services comes into existing only when the Provider confirms its acceptance of the Customer’s order, or commences performance of the relevant CoPacking Services or Sleeving Services, whichever is earlier.
16.2 The Customer shall supply to the Facility, at the time specified by the Provider, the volume of Free Issue Goods and Customer Packaging (where applicable) required for the volume of Packaged Goods to be supplied by the Provider, plus a further quantity for overage in an amount set out in the Quotation, to account for production set up and wastage. All deliveries shall be accompanied by a delivery note specifying the contents.
16.3 The Customer warrants that the Free Issue Goods and the Customer Packaging (where applicable) shall:
(a) comply with any specification agreed between the parties, be free from defects, be fit for the purpose of being used in the Packaged Goods, and comply with all Applicable Laws;
(b) be supplied with all instructions for handling and use as may reasonably be required by the Provider to perform the Services; and
(c) not infringe the intellectual property rights of any party.
16.4 The Customer shall:
(a) provide the Provider with such information, specifications, instructions, designs and materials as the Provider may reasonably require in order to perform the CoPacking Services or Sleeving Services, and warrants that they do not infringe the intellectual property rights of any party; and
(b) promptly provide any approvals as may be required by the Provider in order to perform the Services.
16.5 Where the Customer requires the Provider to return any surplus Free Issue Goods or Packaging, the Provider shall make any such surplus Free Issue Goods or Packaging available for collection at such times as the Customer shall reasonably request. Returns of surplus Free Issue Goods and Packaging shall be at the Customer’s expense.
16.6 If the Order specifies that the Provider shall:
(a) deliver the Packaged Goods, the terms in Part E shall apply to such Delivery Services (and the Delivery Instruction shall be deemed to be the delivery details contained in the Order); or
(b) collect the Packaged Goods, the Customer shall do so at the Provider’s Facility within 10 business days of notification that the Packaged Goods are ready.
16.7 If the Customer fails to take delivery of or collect the Packaged Goods, clauses 19.6 and 19.7 shall apply.
16.8 The Customer shall not be entitled to reject the Packaged Goods if the Provider delivers up to and including 5 per cent more or less than the quantity of Packaged Goods ordered.
16.9 The Provider may deliver the Packaged Goods by instalments, which may be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
16.10 It is the responsibility of the Customer to determine whether the Packaging is fit for the Customer’s intended purpose (including its purpose as packaging for the Free Issue Goods). Unless confirmed in writing by the Provider, the Provider does not warrant that the Packaging is fit for use in relation to the Free Issue Goods, or otherwise fit for the purpose intended by the Customer.
16.11 Subject to clause 16.12, if the Provider Packaging or Packaged Goods do not comply with the warranty set out in clause 2.1 and the Customer notifies the Provider of this in writing:
(a) within five (5) business days of delivery, where such non-compliances should be discoverable upon the Customer undertaking adequate inspection and testing; or
(b) within five (5) business days of discovery where such non-compliances could not have been discovered upon the Customer undertaking adequate inspection and testing;
the Provider shall, at its option, repair or replace the defective Provider Packaging and/or reperform the relevant Services (as applicable), or refund the price of the defective Provider Packaging or the relevant Services (as applicable). This shall be the Customer’s sole remedy and the Provider’s exclusive liability for failure of the CoPacking Services or Sleeving Services to comply with the warranties in clause 2.1. Any claims raised outside of these time limits shall be time barred. The terms of this Agreement shall apply to any repaired or replacement Packaging or Packaged Goods supplied by the Provider under this clause.
16.12 The Provider shall not be liable for the failure of the Packaging or Packaged Goods (as applicable) to comply with the warranties in clause 2.1 if:
(a) the Customer has approved a sample of Packaging and/or Packaged Goods provided to it by the Provider, and the Packaging and/or Packaged Goods (as applicable) conforms to that sample;
(b) the Customer makes any further use of such Packaging or Packaged Goods after giving a notice in accordance with clause 16.11;
(c) the defect arises because the Customer failed to follow the Provider's oral or written instructions as to the storage, use or maintenance of the Packaging or Packaged Goods or (if there are none) good trade practice;
(d) the defect arises as a result of the Provider following or using any specification, drawing, design or instructions supplied by the Customer, using Customer Packaging which is defective or not fit for purpose, or sourcing the Packaging from suppliers recommended by the Customer;
(e) the Customer alters or repairs such Packaging or Packaged Goods without the written consent of the Provider; or
(f) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal use conditions.
16.13 The Customer must adequately inspect and test all Packaged Goods on receipt, and the Provider shall have no liability which could have been avoided by the Customer conducting such testing and inspection.
16.14 The Customer acknowledges that the Provider operates to a manufacturing tolerance of 98%, meaning that the Provider shall have no liability provided that the level of Packaged Goods which do not comply with clause 2.1 does not exceed 2% of the total volume of Packaged Goods to be supplied as part of an Order.
16.15 The Provider reserves the right to amend the Packaging and/or Services if required by any applicable statutory or regulatory requirements.
16.16 All intellectual property rights in the:
(a) Services shall belong to the Provider;
(b) Free Issue Goods shall belong to the Customer;
(c) design of the Packaging which is done by the Customer shall belong to the Customer; and
(d) design of the Packaging which is done wholly or in part by the Provider shall be owned by the Customer to the extent the design is specific to the Customer and shall be owned by the Provider to the extent the design is of broader application.
PART C - TERMS APPLICABLE ONLY TO STORAGE SERVICES
17. Storage Services
17.1 Before arrival of a consignment of Stored Goods, the Customer shall complete and send to the Provider a Storage Request detailing the type and volume of the Stored Goods that it wishes to store in the Facility. The Provider shall confirm in writing whether it is prepared to store those Stored Goods at the Facility.
17.2 The Quotation shall detail the volume of storage space which the Customer expects to require (Expected Space) and acknowledges that the Charges for the Storage Services are calculated on the basis of the Expected Space, using the volume-linked tariff in the Quotation. The Provider shall endeavour to accommodate volumes in excess of the Expected Space but shall not be obliged to do so. If the volumes of storage space used by the Customer are less than the Expected Space, the Provider reserves the right to increase the Charges for the Storage Services in line with the volume-linked tariff on written notice to the Customer.
17.3 The Provider shall issue a confirmation to the Customer stating the type and volume of the Stored Goods received.
17.4 Before arrival of a consignment of Stored Goods the Customer shall:
(a) provide the Provider with a note detailing the description and particulars of the Stored Goods contained therein;
(b) notify the Provider if there are any special precautions required by the nature, weight or condition of the Stored Goods forming the consignment, and the Provider shall confirm whether or not it can comply with those additional precautions; and
(c) ensure that the Stored Goods are securely and properly packed in compliance with all Applicable Laws and in such condition as not to cause damage or injury to the Provider’s employees, agents and subcontractors, the Facility or any other property of the Provider or to any other goods stored at the Facility.
17.5 The Customer warrants on an ongoing basis that:
(a) it is either the owner of the Goods, or is authorised by the owner to store the Stored Goods at the Facility;
(b) the Stored Goods will be of the type specified in the relevant Storage Request; and
(c) none of the Stored Goods will constitute waste (as defined in section 75 of the Environmental Protection Act 1990), or are goods that are or may become poisonous, corrosive, flammable, volatile, explosive or radioactive (Dangerous Goods).
17.6 The Provider shall:
(a) provide the Facility, and shall not store the Stored Goods anywhere other than the Facility without the prior written consent of the Customer;
(b) store the Stored Goods in its possession separately from all other items held by the Provider so that they remain readily identifiable as the Customer's property; and
(c) keep and maintain the Stored Goods in the condition in which they were delivered to the Facility and, subject to clause 13.2, 17.9 and 17.10, shall not dispose of or use the Stored Goods other than in accordance with the Customer's instructions or authorisation.
17.7
The Customer and its respective
employees, agents and representatives may, on reasonable prior notice, access
the Facility during the Provider’s normal business hours for the purpose of
delivering and inspecting the Stored Goods and removing any Stored Goods not
subject to the Provider's lien in clause
17.8 Subject to clause 6.1, the Customer shall remove some or all of the Stored Goods from the custody or control of the Provider at such date as may have been agreed between the parties. In the absence of such agreement:
(a) the Customer may remove some or all of the Stored Goods during the Provider’s normal business hours; and
(b) the Provider may at any time by notice in writing to the Customer require the removal of Stored Goods within three days.
17.9 If the Customer fails to remove any of the Stored Goods as required by clause 17.8(b) the Provider shall be entitled to sell or otherwise dispose of all or some of the Stored Goods which have not been removed by the agreed date or the end of the three-day period referred to in clause 17.8(b) (as applicable), as agent of the Customer and at the Customer's expense and risk, and shall remit the proceeds of sale or disposal of such Stored Goods to the Customer after deduction of all amounts due to the Provider from the Customer and the expenses incurred by the Provider for the sale or disposal of the Stored Goods. The Provider shall not be liable for the price obtained for the sale or disposal of the Stored Goods. Where disposal costs (if any) exceed the proceeds of sale / disposal (if any), the Customer shall reimburse the Provider for such costs within seven (7) days from receipt of an invoice from the Provider.
17.10 The Provider may at the Customer's expense, remove or, if it thinks fit, destroy any Stored Goods which in its reasonable opinion are or have become Dangerous Goods. Save in cases of emergency, the Provider shall not exercise this right without first giving the Customer a reasonable opportunity to inspect the Stored Goods in question and, if the Customer so elects, to remove them itself.
PART D - TERMS APPLICABLE ONLY TO E-FULFILMENT SERVICES
18. E-Fulfilment Services
18.1 The Customer shall facilitate the connection of the Provider’s e-portal system to the Customer’s order processing system, and ensure such connection is enabled at all times in order to enable the Provider to provide E-Fulfilment Services which may be ordered by the Customer from time to time.
18.2 The Customer warrants and undertakes that no computer viruses or other harmful software programmes shall transmit from its systems to the Provider’s systems at any time.
18.3 The Customer shall issue E-Fulfilment Instructions to the Provider from time to time, as required.
18.4 The Provider shall acknowledge receipt of the E-Fulfilment Instruction as soon as reasonably practicable, where the Delivery Instruction falls within the scope of the Quotation or constitutes ‘business as usual’ activity which is undertaken by the Provider for the Customer. The Provider shall raise any concerns regarding the E-Fulfilment Instruction with the Customer at the same time. Any E-Fulfilment Instructions which are for promotional activity, which fall outside of the scope of the Quotation or which are not ‘business as usual’ activity shall be subject to agreement between the parties.
18.5 The Provider shall pick and pack the Goods which are the subject of a E-Fulfilment Instruction, in readiness for delivery or collection from the Facility.
PART E - TERMS APPLICABLE ONLY TO DELIVERY SERVICES
19. Delivery Services
19.1 The Customer shall issue Delivery Instructions to the Provider from time to time, as required.
19.2 The Provider shall acknowledge receipt of the Delivery Instruction as soon as reasonably practicable, where the Delivery Instruction falls within the scope of the Quotation. The Provider shall raise any concerns regarding the Delivery Instruction with the Customer at the same time. Any Delivery Instructions which fall outside of the scope of the Quotation shall be subject to agreement between the parties.
19.3 The Provider shall:
(a) carry the Goods by truck, ensuring they are securely packed, stowed and labelled; and
(b) effect Delivery of each consignment of Goods in accordance with the applicable Delivery Instruction.
19.4 The Customer shall use all reasonable endeavours to procure that the Consignee or its appointed agent accepts Delivery in accordance with the Delivery Instruction.
19.5 Receipt by the Consignee, or any appointed agent, entitled to take Delivery of a consignment of Goods without complaint shall constitute prima facie evidence that those Goods were delivered in good condition in accordance with this Agreement.
19.6 If the Consignee, or any appointed agent, fails to take Delivery at the Delivery Point, then the Provider shall seek further instructions from the Customer and comply with those instructions where reasonable to do so. The Provider shall charge the Customer for the cost of retaining, insuring and storing the Goods pending receipt and fulfilment of the Customer's instructions. The provisions of clauses 4 and 5 shall apply to payment of such charges.
19.7 Where the Provider continues to be unable to deliver the consignment of Goods as instructed and is unable to obtain instructions from the Customer in accordance with clause 19.6 within five (5) days, the Provider shall be entitled, as agent of the Customer and at the cost of the Customer, to sell or otherwise dispose of those Goods after not less than ten (10) days' written notice to the Customer. The Provider shall not be liable for the price obtained for the sale or disposal of those Goods. The Provider shall remit the proceeds of sale or disposal of such Goods to the Customer after deduction of all amounts due to the Provider and the expenses incurred by the Provider for the storage, insurance and subsequent sale or disposal of the Goods.
19.8 The Customer acknowledges that the Provider is not a common carrier.
Prism eLogistics (UK) Ltd
Unit C Logistic City
Houndmills Road
Basingstoke, RG21 6XL
Client Services
