Terms & Conditions For Warehouse Services
1. Interpretation
The following definitions and rules of interpretation apply in these Conditions:
means the laws of England and Wales and any other laws or regulations, regulatory policies, guidelines or industry codes which apply to the Goods or the provision of the Services; | |
means a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business; | |
means the period from 9.00 am to 5.00 pm on any Business Day; | |
means the sums payable for the Services, as set out in the Order; | |
has the meaning set out in clause 2.2; | |
“Conditions” | these terms and conditions as amended from time to time in accordance with clause 20.2; |
“Contract” | the contract between Dependall and the Customer for the supply of Services, comprising the Heads of Terms, the Order as signed by Dependall and these Conditions; |
“Contract Year” | a 12-month period commencing with the Commencement Date or any anniversary of it; |
“Customer” | the person or firm who purchases Services from Dependall as set out in the Heads of Terms; |
has the meaning given in clause 7.1.3; | |
means the transfer of physical possession of a consignment of Goods to Dependall or its agent; | |
“Dependall” | Dependall Limited registered in England and Wales with company number 13087461; |
“End Date” | the date set out in the Heads of Terms (if any), when this Contract will terminate. |
means Dependall’s warehouse at California 400, California 400, California Drive, Whitwood, Castelford, WF10 5QH or Swinton Works, Talbot Road, Mexborough, S64 8AJ or such other location as Dependall may notify to the Customer in writing; | |
means the goods delivered to Dependall (or its agent) for storage in the Facility in accordance with the Contract; | |
“Heads of Terms” | the document sent by Dependall to the Customer setting out the Services to be provided, these Conditions and all other related terms. |
“Loss” | loss (including theft), destruction, damage, contamination, deterioration, non-availability or mis-delivery of the Goods; |
“Notice Period to Terminate” | the length of written notice to terminate the Contract relevant to each party or the parties (i) as specified in the Heads of Terms or (ii) one (1) week / one (1) month if no such period for the relevant party is specified in the Heads of Terms, as applied pursuant to these Conditions |
“Maximum Volume” | means the maximum volume of pallets of Goods permitted for storage as set out in the Heads of Terms (if any); |
means the minimum volume of pallets of Goods required for storage as set out in the Heads of Terms (if any); | |
“Order” | the Heads of Terms signed by the Customer confirming |
means the logistics, warehousing and storage services to be provided by Dependall in respect of the Goods, as set out in the Contract;
| |
“Storage Request” | the Customer’s written request for a consignment of goods to be stored at the Facility; |
“Supplier” | Dependall Limited a company registered in England and Wales under company number 13087461 with registered office at Rofta House, Rudgate, Thorp Arch, Wetherby, Englands, LS23 7QA. |
means value added tax or any equivalent tax chargeable in the UK; | |
has the meaning given in section 75 of the Environmental Protection Act 1990. |
1.2.1. 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.
1.2.2. A reference to writing or written includes email but excludes fax.
1.2.3. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
2. Basis of contract
2.1. The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.2. The Order shall only be deemed to be accepted when Dependall issues written acceptance of the Order at which point and on which date the Contract shall come into existence (“Commencement Date“).
2.3. Any samples, drawings, descriptive matter or advertising issued by Dependall, and any descriptions or illustrations contained in Dependall’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 Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.5. Any quotation, including as set out in the Heads of Terms, given by Dependall shall not constitute an offer, and is only valid for a period of 10 Business Days from its date of issue.
3. Commencement and duration
The Contract shall commence on the Commencement Date and shall continue, unless terminated earlier in accordance with clause 17 (Termination), until the End Date unless and until either party gives the Notice to Terminate, expiring in the event such notice is sent by the Customer on or after the first anniversary of the Commencement Date.
4. Dependall’s general obligations
4.1. Dependall shall supply the Services to the Customer in accordance with the Service Specification in all material respects.
4.2. Dependall shall use all reasonable endeavours to meet any performance dates agreed with the Customer, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
4.3. Dependall reserves the right to amend the Services if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services.
4.4. Dependall warrants to the Customer that the Services will be provided using reasonable care and skill.
5.1.1. ensure that the terms of the Order are complete and accurate;
5.1.2. co-operate with Dependall in all matters relating to the Services;
5.1.3. act at all times in compliance with Applicable Laws;
5.1.4. notify Dependall immediately in writing on a change of Control of the Customer;
5.1.5. 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.
5.2. Before Delivery of a consignment of Goods the Customer shall:
5.2.1. inform Dependall in writing of any special precautions required by the nature or condition of the Goods forming the consignment and provide Dependall with all other information concerning the Goods necessary to enable Dependall to comply with all Applicable Laws in respect of the storage and handling of the Goods;
5.2.2. ensure that the Goods are securely and properly packed in compliance with all Applicable Laws and in such condition as not to cause damage or injury or the likelihood of damage or injury; and
5.2.3. ensure that none of the Goods shall constitute Waste or Dangerous Goods.
5.3. The Customer shall ensure that upon Delivery:
5.3.1. any Goods to be offloaded are easily accessible and without requiring other goods to be moved;
5.3.2. the Goods are presented on standard pallets of 120cm x 100cm such pallets to be in good condition and state of repair;
5.3.3. the Goods are adequately secured on the pallet and not overhanging the edge of the pallet.
5.4. The Customer shall appoint a manager for the Services. That person shall have the authority to contractually bind the Customer on matters relating to the Services.
6. Minimum and Maximum Volumes
6.1. During each Contract Year the Customer shall purchase at least the Minimum Volume and shall not exceed the Maximum Volume without the prior written consent of Dependall
6.2. Except to the extent that the Customer’s failure to purchase the Minimum Volume is caused by Dependall’s default or a Force Majeure Event, if the Customer purchases less than the Minimum Volume, Dependall may charge the Customer for any shortfall between:
6.2.1. the Charges for the Minimum Volume in the relevant period; and
6.2.2. the Charges for the Services purchased by the Customer in that period.
7.1. The Customer warrants on an ongoing basis that:
7.1.1. it is either the owner of the Goods, or is authorised by the owner to store the Goods at the Facility on the terms of the Contract, and there are no restrictions on its right to store the Goods at the Facility on the terms of the Contract;
7.1.2. the Goods will be of the type described in the Order or of the type otherwise agreed in writing by Dependall; and
7.1.3. none of the Goods will constitute Waste or will be of a type that are or may become poisonous, corrosive, flammable, volatile, explosive or radioactive (“Dangerous Goods“).
8.1. Dependall agrees to provide the Services in relation to the goods specified in the Order. Before Delivery of a consignment of any other goods, the Customer shall complete and send to Dependall a Storage Request detailing the type and volume of the goods forming the consignment that it wishes to store in the Facility.
8.2. Within 7 (seven) days of receipt of the Storage Request, Dependall shall confirm in writing whether it is prepared to store the relevant goods referred to in the Storage Request at the Facility. The Customer shall deliver the goods as soon as practicable after receiving Dependall’s confirmation that it is prepared to store the goods at the Facility.
8.3. Dependall shall inspect the Goods as soon as practicable following Delivery to check they comply with the description set out in the Order or Storage Request (as the case may be) and if they do not, Dependall shall be entitled to reject them and decline to store them at the Facility.
The Customer shall ensure that when visiting the Facility its employees, agents and representatives shall act in accordance with the reasonable instructions or policies of Dependall.
10. Delivery and handling of goods
10.1. Unless Dependall has agreed in writing to collect the Goods, the Customer shall be responsible at its own expense for transporting the Goods to the Facility.
10.2. Subject always to the provisions of clause 14.1 and to the compliance by the Customer with the provisions of clause 5, Dependall shall be responsible for unloading the Goods on arrival at the Facility.
10.3. Dependall may use such method for the storage and handling of the Goods as it in its absolute discretion considers appropriate.
10.4. Dependall shall have a discretion as to where in the Facility it shall store the Goods and it may, without notice to the Customer but at Dependall’s expense, move the Goods from one part of the Facility to another part of the Facility.
11. Removal and redelivery of goods
11.1. Subject to clause 13.3, the Customer, or its agents and representatives, shall collect the Goods from the custody or control of Dependall at such dates as may from time to time be agreed between the parties.
11.2. Subject always to the provisions of clause 14.1, Dependall shall be responsible for loading the Goods for onward transportation when collected pursuant to clause 11.1.
11.3. Where Dependall agrees to redeliver the Goods at a location other than the Facility:
11.3.1. the Customer shall (and shall procure that its agents, or any consignee to whom Dependall has agreed to deliver the Goods shall) accept redelivery of the Goods in accordance with any arrangements agreed between the Customer and Dependall;
11.3.2. subject always to the provisions of clause 14.1, Dependall shall be responsible for unloading the Goods at the agreed delivery point.
11.4. Notwithstanding the provisions of clause 11.1, Dependall may at any time by notice in writing to the Customer require the removal of perishable Goods within three days. If the Customer fails to remove any such Goods as so required Dependall shall be entitled to sell or otherwise dispose of all or some of the Goods which have not been removed by the end of the said three-day period, as agent of the Customer and at the Customer’s expense and risk, and shall remit the proceeds of sale or disposal of such Goods to the Customer after deduction of all amounts due to Dependall from the Customer and the expenses incurred by Dependall for the sale or disposal of the Goods. Dependall shall not be liable for the price obtained for the sale or disposal of the Goods.
11.5. Dependall may at the Customer’s expense, remove or, if it thinks fit, destroy or otherwise dispose of any Goods which in its reasonable opinion are or have become Dangerous Goods.
12.1. In consideration of the provision of the Services by Dependall, the Customer shall pay the Charges.
12.2. For the avoidance of doubt, if the Customer transfers title or agrees to transfer title to any of the Goods while such Goods are in the Facility, the Customer shall continue to be responsible for payment of the Charges until the Goods are removed from the Facility.
12.3. All Charges are stated exclusive of VAT which shall be paid by the Customer at the rate and from time to time in the manner prescribed by law.
13.1. Dependall shall invoice the Customer pursuant to the payment terms set out in the Heads of Terms.
13.2. The Customer shall pay each invoice submitted to it by Dependall within 30 days of receipt to a bank account nominated in writing by Dependall from time to time.
13.3. Dependall shall have a general and particular lien on the Goods in its possession as security for payment of all sums claimed by Dependall from the Customer. The Charges shall continue to accrue on any Goods detained under lien. If an invoice for the Charges is not paid in full on its due date for payment, Dependall 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 some or all of the Goods in its possession if the amount outstanding is not paid in full within 14 days. If the amount due is not paid by the expiry of such period, Dependall may sell or otherwise dispose of some or all of the 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 Goods to the Customer after deduction of all amounts due to Dependall and the expenses incurred by Dependall for the sale or disposal of the Goods. Dependall shall not be liable for the price obtained for the sale or disposal of the Goods.
13.4. Where the Goods are liable to perish or deteriorate, Dependall’s right to sell or otherwise dispose of the Goods in clause 13.3 shall arise immediately upon any sum becoming due subject only to Dependall taking all reasonable steps to notify the Customer of its intention to sell or otherwise dispose of the Goods before doing so.
13.5. If the Customer fails to make payment due under the Contract by the due date for payment, then, without limiting the Supplier’s remedies under clause 17 (Termination) 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 6% a year above the Bank of England’s base rate from time to time, but at 6% a year for any period when that base rate is below 0%.
14.1. Subject to clause 14.2, Dependall does not accept liability for Loss. Except as provided in this clause 14, Dependall does not insure the Goods and the Customer shall self-insure or make arrangements to cover the Goods against relevant insurable risks.
14.2. Dependall is only responsible for Loss if the same has arisen due to the negligence or wilful act or default of Dependall, provided that Dependall’s liability for Loss shall in no case exceed a total of £100 per tonne weight of the Goods in respect of which a claim arises or the value of the Goods whichever is the lesser. The value of the Goods shall be the replacement cost of the Goods at the commencement of the Services.
14.3. Dependall’s liability under clause 1.1 is conditional upon:
14.3.1. Dependall’s ability to place insurance in respect of its liability for the Goods and notifying the Customer in writing accordingly; and
14.3.2. receipt from the Customer of an additional sum specified by Dependall, acting reasonably, to cover the cost of Dependall insuring its additional liability.
14.4. The Customer shall examine all Goods promptly upon their redelivery following after provision of the Services. Dependall shall not be liable for any claim in relation to Loss unless it is notified by writing to Dependall within 10 Business Days of the Goods being redelivered.
14.5. Subject to clause 14.7, notwithstanding any other provision of the Contract, Dependall shall not be liable to the Customer in contract, tort (including negligence), misrepresentation, or otherwise, for:
14.5.1. loss of profit;
14.5.2. loss of sales or business;
14.5.3. loss of agreements or contracts;
14.5.4. loss of revenue
14.5.5. loss of anticipated savings
14.5.6. loss of or damage to goodwill; and
14.5.7. indirect or consequential loss.
14.6. Subject to clauses 14.5 and 14.7, and the provisions of clauses 14.1 to 14.3 (which govern Dependall’s liability for Loss), the Supplier’s total liability to the Customer for all other loss or damage in any Contract Year shall not exceed 100% of the Charges (excluding VAT thereon) for the Services in the Contract Year in question.
14.7. Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
14.7.1. death or personal injury caused by negligence;
14.7.2. fraud or fraudulent misrepresentation.
14.8. The Customer acknowledges that Dependall is not a common carrier.
Dependall shall allow the Customer (or its professional advisers) to access the Facility to the extent reasonably necessary to undertake verification that all obligations of Dependall are being performed in accordance with the Contract and each party shall bear its own costs relating to the same..
16.1. The Customer shall indemnify Dependall against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by Dependall arising out of or in connection with the breach by the Customer of its obligations under the Contract.
17.1. Without affecting any other right or remedy available to it, Dependall may terminate the Contract with immediate effect by giving written notice to the other party if:
17.1.1. the Customer commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 7 (seven) days after being notified in writing to do so;
17.1.2. the Customer repeatedly breaches any of the terms of in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract;
17.1.3. the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (IA 1986) as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the IA 1986;
17.1.4. the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors;
17.1.5. the Customer party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
17.1.6. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer;
17.1.7. an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the Customer (being a company);
17.1.8. the holder of a qualifying floating charge over the assets of the Customer (being a company) has become entitled to appoint or has appointed an administrative receiver;
17.1.9. a person becomes entitled to appoint a receiver over all or any of the assets of the Customer or a receiver is appointed over all or any of the assets of the other party;
17.1.10. a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Customer’s assets and such attachment or process is not discharged within 14 days;
17.1.11. any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 17.1.3 to clause 17.1.10 (inclusive);
17.1.12. the Customer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
17.1.13. the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy;
17.1.14. there is a change of Control of the Customer;
17.1.15. 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;
17.1.16. any warranty given by the Customer in clause 7 (Customer’s warranties) is found to be untrue or misleading; or
17.1.17. the Customer fails to purchase the applicable Minimum Volume in any period in accordance with clause 6 (Minimum purchase obligation)..
18. Consequences of termination and survival
18.1. On termination or expiry of the Contract howsoever arising:
18.1.1. the Customer shall remove or procure the removal of the Goods still in storage at the Facility, save where clause 11.3 applies; and
18.1.2. the Customer shall immediately pay all Dependall’s outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, Dependall may submit an invoice, which the Customer shall pay immediately on receipt.
18.2. If the Customer fails to remove any of the Goods as required by clause 18.1 Dependall 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 Goods if the Goods are not removed within 14 days or, in the case of perishable goods, within three days of the date of the notice. On the expiry of such period, Dependall shall be entitled to sell or otherwise dispose of all or some of the Goods 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 Goods to the Customer after deduction of all amounts due to Dependall from the Customer and the expenses incurred by Dependall for the sale or disposal of the Goods. Dependall shall not be liable for the price obtained for the sale or disposal of the Goods.
18.3. Any provision of the Contract 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.
18.4. Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry. Including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 8 weeks, the party not affected may terminate the Contract by giving 14 (fourteen) days’ written notice to the affected party.
20.1.1. 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.
20.1.2. 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.
Dependall may vary these Conditions at any time, including by updating any online copy of the Conditions at www.dependall.com. No variation of the Order shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
20.3. Assignment and other dealings
20.3.1. Dependall may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
20.3.2. The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract.
20.4. Waiver
20.4.1. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
20.4.2. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
20.5.1. If any provision or part-provision of the Contract 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 the Contract.
20.5.2. If any provision or part-provision of the Contract is deemed deleted under clause 20.5.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
20.6.1. Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:
20.6.1.1. 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); or
20.6.1.2. or sent by email to the address specified in the Order.
20.6.2. Any notice or communication shall be deemed to have been received:
20.6.2.1. if delivered by hand at the time the notice is left at the proper address;
20.6.2.2. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
20.6.2.3. if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
20.6.3. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
20.7.1. This agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
20.7.2. The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
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 England and Wales.
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 the Contract or its subject matter or formation.
