Parcel collection and delivery services standard Terms and Conditions
Your attention is drawn to Conditions 9 and 10 which limit the liability of ETrak, its employees and agents in certain circumstances.
Parcel Monkey (E-Trak) Ltd, a company incorporated in England and Wales with company number 12432231 and having its registered office at ("E-Trak") accepts goods for carriage and provides Services subject to the terms of the Contract only. E-Trak is not a common carrier which means that it may refuse to carry the Customer’s goods at its discretion.
These Conditions will apply from the moment that the Contract is formed in accordance with Condition 2.1.5. ETrak reserves the right to unilaterally modify or supplement the Services and these Conditions (as defined below).
The terms and conditions set out in the Contract shall apply to all goods carried and services provided by ETrak to the exclusion of all other terms and conditions including, but not limited to those, which may be purported to apply under any purchase order, receipt, confirmation or similar document.
In these Conditions the following terms will have the following meanings:
"Charges" means the charges payable by the Customer to ETrak, as set out in a rate card or Customer Agreement;
"Conditions" means these terms and conditions;
"Confidential Information" means non-public information of the parties relating to their and their affiliates' business activities, financial affairs, technology, marketing or sales plans that is exchanged or otherwise made available by the parties in the formation and implementation of the Contract.
Confidential Information includes the terms and pricing of the Contract and the content of all reports which have been produced pursuant to the Contract.
Confidential Information shall not include information which:
is or becomes public knowledge through no breach of the Contract by the receiving party;
is received by the recipient from a third party not under a duty of confidence; or
is already known or is independently developed by the receiving party without use of the Confidential Information;
"Consignment" shall mean, collectively, all Parcels sent at the same time in the same load by or for the same Customer to be delivered to the same Delivery Location to the same named consignee pursuant to the terms of the Contract.
"Contract" means the terms as defined in a Customer Agreement or otherwise agreed between the parties as forming the contract of carriage, incorporating the terms of these Conditions, which shall be formed when a duly authorised representative of the parties executes a Customer Agreement or when the Customer sends Parcels to ETrak to transport as part of the Services and ETrak accepts the order for carriage and/or the provision of its services for the Customer.
The Customer shall be deemed to have notice of and accepts these Conditions if and as soon as such Customer places an order with ETrak for the carriage of goods or other services.
"Customer" shall mean the person, firm, company or other entity that enters into the Contract with ETrak, as identified in a Customer Agreement or otherwise;
"Dangerous Goods" means goods listed as dangerous in the Carriage of Dangerous Goods & Use of Transportable Pressure Equipment Regulations 2009, the Chemicals (Hazard Information and Packaging for Supply)
Regulations 2009, Carriage of Dangerous Goods and Use of Transportable Pressure Equipment (Amendment) Regulations 2011, the Classification and Labelling of Explosives Regulations 1983 (as amended), goods classified as hazardous material, dangerous goods, prohibited or restricted articles by IATA (International Air Transport Association), ICAO (International Civil Aviation Authority), ADR (European Road Transport Regulation on dangerous goods, IMDG (International Maritime Dangerous Goods Code) or the UPU (Universal Postal Union Convention) and its regulations and any other goods which are considered as dangerous or hazardous or present a comparable hazard by regulatory bodies governing transport by road, air or sea in any applicable laws, regulations and/or guidelines or which ETrak or its subcontractors are not otherwise entitled to transport due to restrictions placed by airline or other carriers.
Dangerous Goods are also goods which can cause direct physical damage, are capable of causing injury to people or to their health, or are physically dangerous to other goods or that may cause damage to property.
"Deliverables" means all documents, products and materials developed or provided by ETrak or its agents, subcontractors, consultants and employees in relation to the Services in any form, including computer programs, data, reports and specifications (including drafts) and whether or not created before or after the Commencement Date as defined in a Customer Agreement or the date Services were first provided to the Customer.
"Delivery Location" means the location, where ETrak shall deliver a Consignment or Parcel.
"Frequency" means the frequency, with which ETrak shall collect Parcels from the Pick-up Locations.
"Illegal Items" means goods prohibited to be imported, exported, carried and/or used by the law or regulation of any government or public or local authority of any country where the goods are to be carried, stored or transported, including goods destined for any country, company, organization or individual that is subject to any export control list.
"Insolvency Event" means:
the defaulting party becomes unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), admits its inability to pay its debts or becomes insolvent;
a petition is presented, an order made or a resolution passed for the liquidation (otherwise than for the purposes of a solvent amalgamation or reconstruction), administration, bankruptcy or dissolution of the defaulting party.
an administrative or other receiver, manager, trustee, liquidator, administrator or similar person or officer is appointed to the defaulting party and/or over all or any part of the assets of the defaulting party.
the defaulting party enters into or proposes any composition or arrangement concerning its debts with its creditors (or any class of its creditors) generally; or
anything equivalent to any of the circumstances stated in (a) - (d) (inclusive) occurs in any jurisdiction.
"Intellectual Property Rights" means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing of, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
"Parcels" shall mean any parcel which the Customer requests that ETrak shall transport pursuant to the terms of the Contract which, in any case, must
where sent using the ETrak OnTrak Lite Service, weigh less than 2kg, and not be larger than the aggregate dimensions in length, height and width of 90cm with no single side greater than 60cm in length. Roll shaped items (circular, triangular or otherwise) shall not exceed 2kg in weight with minimum dimensions being length + 2diameter ˃ 17cm and maximum dimensions being length + 2diameter ˂ 104, with no single side greater than 90cm.
where sent using the ETrak OnTrak or any other Service weigh less than 30kg unless expressly agreed otherwise by ETrak in writing; and not be larger than the aggregate dimensions in length, height and width of 150cm with no single side greater than 100cm in length. Parcels with any larger dimensions or weight shall be carried by ETrak at its discretion and are subject to additional charges which shall be added to an ETrak invoice and payable by the Customer. Should the Customer wish to avoid such additional charges it shall ensure that the Parcels it sends do not exceed such weights and dimensions as detailed above.
"Pick-up Location" means the location, from where ETrak shall collect Parcels.
"Restricted Items" means tobacco products, works of art, high value jewellery or watches, cash, glass porcelain or other fragile materials, negotiable instruments (including cheques and any vouchers with a face value), passports, precious stones or pearls, precious metals, valuable accessories, valuable collectible items such as coins and stamps and spare parts, antiques, non-food animal products, furs or any other valuables, wines, beer, spirits, living or dead animals, fish, birds or any other living organism of any type, frozen or perishable food or other perishable items, perfume or cologne (in a total volume in the same Consignment of more than 100ml which will be carried by air), counterfeit goods, real or imitation firearms or other weapons, any Parcels which exceed the weight or dimensional limits set out in Condition 2.1.14 and any other items which ETrak lists as a restricted item on its website from time to time.
"Services" means the services provided by ETrak under the terms of the Contract and may include without limitation the ETrak OnTrak Lite and ETrak OnTrak services as further detailed on any Customer Agreement or as agreed in writing between the parties.
"Customer Agreement" means an agreement executed by the parties to which the Conditions relate.
"Taxes and Duties" means all taxes, charges, imposts, customs duties, levies, penalties, fines, storage or destruction fees and other fees or charges of any kind payable to any governmental, fiscal or taxing authority anywhere in the world (but excluding any taxes in relation to ETrak’s income).
"Time" means the time specified in a Customer Agreement or otherwise in writing at which ETrak shall at the Frequency collect Parcels from the Delivery Location or the Customer drop Parcels in to an ETrak Location.
"Third Parties" has the meaning set out in Condition 13.
"Transit" means the time period that commences when the Parcel is physically within the possession of ETrak (or its authorised subcontractor), following loading or unloading in accordance with Condition 6.2, whether at the Pick-up Location or at ETrak’s premises and ends when the Parcel is offered for delivery at the Delivery Location (in accordance with the number of delivery attempts ETrak is required to make in accordance with the Customer Agreement or otherwise agreed in writing between the parties) PROVIDED THAT, when for any other reason whatsoever a Parcel is held by ETrak "to await order" or "to be kept until called for" or upon any like instructions and such instructions are not given by the Customer, or the Parcel is not called for and removed within a reasonable time, then Transit shall be deemed to end. A Parcel shall be considered to have been offered for delivery when ETrak (or its designated subcontractor) attempts delivery at the Delivery Location in a manner which is customary by carriers of that nature in the location where the Parcel is to be delivered to (in accordance with the number of delivery attempts ETrak is required to make in accordance with a Customer Agreement or otherwise agreed in writing). Accordingly, for example, where it is customary that a parcel may be left outside of premises if physical handover of that item is not possible, leaving such item as described shall be considered to be delivery and Transit shall be deemed to have come to an end at that time.
Unless expressly agreed otherwise in a Customer Agreement and subject to Conditions 6.5 and 7.1, ETrak Services will be limited to picking up and transporting Parcels for the Customer from the Pick-up Location or any drop of point agreed between the parties in writing, at the agreed Frequency and Time for delivery to the Delivery Location.
ETrak reserves the right, at its discretion, to inspect all Parcels to ensure that such Parcels and their contents are compatible with the terms of the Contract, and are capable of carriage to the country of destination within ETrak standard procedures, customs declarations and handling methods and in compliance with all applicable laws. Notwithstanding anything to the contrary, ETrak may refuse to pick up and transport any Parcel that does not comply with the terms of the Contract (including, but not limited to, Conditions 5, 6 and 7). In such circumstances, the parties acknowledge and agree that ETrak shall have no liability (in contract, tort or otherwise) to the Customer.
ETrak shall, if so required, sign a document prepared by the Customer, acknowledging receipt of the Parcel(s), but no such document shall be evidence of the condition or correctness of a declared nature, quantity or weight of the Parcel(s) at the time it is received by ETrak.
PARTIES AND SUB-CONTRACTING
Where the Customer is not the owner of some or all of the Consignments and/or Parcels stored or carried he shall be deemed for all purposes to be acting as a fully authorised agent of the owner or owners or any other person who has an interest in the goods. Accordingly, the Customer hereby represents and warrants that it has all necessary rights, licences and permissions to allow ETrak and its subcontractors to carry, store, export, import and deliver the Parcels as requested by the Customer.
ETrak may engage any third party to perform or fulfil any of ETrak’s obligations under the Contract. Any such third party shall have the right to further sub-contract their own obligations.
The Customer is responsible for ensuring that Parcels are of the type that will be carried by ETrak in accordance with this Condition 5 and that such Parcels are adequately and securely packed and the contents are properly and clearly identified. Parcels may not include:
Dangerous Goods; or
subject to Condition 5.2, Restricted Items, hazardous goods, flammable goods; or
Illegal Items; or
goods that are subject to licenses, permits, certificates, restrictions or anti -dumping or countervailing laws or regulation.
The Customer shall only be permitted to include Restricted Items in a Parcel if the CEO of ETrak has notified the Customer in writing that such items are accepted for carriage in that particular Consignment. If such items are accepted for carriage in that particular Consignment by written notification, the Customer accepts that such goods are carried entirely at the Customer’s risk without prejudice to ETrak’s rights of indemnification set out in Condition 12.
Without prejudice to the right of ETrak to be indemnified as provided under Condition 12, the Customer agrees that ETrak shall have full liberty and discretion to dispose of such unacceptable goods in whatever manner it considers appropriate, including destruction. In such cases the Customer agrees to reimburse ETrak without delay for the costs of removing the Parcel(s) containing such unacceptable goods from transportation and destroying it or returning it to the Customer.
CUSTOMER OBLIGATIONS AND WARRANTY
The Customer will make Parcels available for collection by ETrak at the Time and Frequency and at each Pick-up Location and will provide ETrak with a safe and secure environment for such collection and will inform ETrak in advance of all health and safety rules and regulations and any other reasonable security requirements that apply at the Customer's Pick-up Location. Alternatively, the Customer may agree with ETrak that it shall deliver the Parcels to ETrak’s processing facility, the address of which shall be notified to the Customer from time to time, at the Time and Frequency agreed on the Customer Agreement or otherwise in writing between the parties.
The Customer agrees that it is responsible for loading the Parcels into ETrak's vehicle at the Pick-up Location or if the Customer is delivering the goods to ETrak’s processing facility the unloading of its vehicles shall comply with ETrak’s site processes. If the Customer fails to comply with this requirement, ETrak shall be under no obligation to carry the Parcels although it may choose to assist the Customer by loading or unloading the Parcels. However, the Customer will be liable for and indemnify ETrak for any loss, damage or liability arising from the loading or unloading of the Parcels.
The Customer undertakes, warrants and represents that:
All Parcels and Consignments have been properly and sufficiently packaged, accurately and fully labelled and accompanied with all necessary and complete dispatch documentation (including, where applicable, in a manner specified by ETrak) and that the labelling shall include the full postcode or equivalent for the relevant consignee;
no individual Parcel sent using the Services will exceed the weight or dimensional limits set out in Condition 220.127.116.11 and 18.104.22.168. (Parcels that are larger or heavier than these limits will incur additional charges payable by the Customer) and that it will not send (or attempt to send) any Dangerous Goods, Restricted Items, hazardous goods, flammable goods or Illegal Items using the Services offered by ETrak except as permitted under Condition 5.2;
it will accurately complete all documentation and comply with all customs requirements as required to enable ETrak to carry, export, import and deliver the Parcels.
The Customer will:
provide ETrak with such information as is reasonably required to allow ETrak to perform its obligations under the Contract;
ensure that it has all necessary consents and licences to allow ETrak to use the data and information provided by the Customer pursuant to the Contract;
upon pick-up of a Parcel and/or Consignment, provide ETrak with a data file in a format specified by ETrak, acting reasonably, which contains details of the:
relevant and complete destination address; and
accurate details of the contents of the Parcel and/or Consignment; and
ensure that all information which is provided by the Customer in relation to each Parcel and/or Consignment is accurate and complete and will indemnify ETrak from any liability, losses, costs and expenses which ETrak incurs as a result of any inaccurate or incomplete information provided by the Customer, including without limitation, storage fees incurred by ETrak to continue to store the Parcels awaiting further information from the Customer in a bonded area or otherwise, or fines and penalties imposed by Customs or regulatory bodies.
Any failure by ETrak to provide the Services as a result of either a Customer's or its consignee's failure to correctly label, package or provide information in relation to the Parcel and/or the relevant Consignment or as a result of a failure by the Customer to comply with Conditions 5 and/or 6 shall not be a breach of the Contract.
The Customer shall remain in good standing under the laws of England and Wales and such other applicable laws that may apply to its activities and shall at all times comply with the UK’s Bribery Act 2010 and the Modern Slavery Act 2015.
TRANSIT AND UNCLAIMED GOODS AND UNDELIVERED GOODS
ETrak is only responsible for and shall only be liable for Parcels whilst they are in Transit.
ETrak shall store Parcels in its possession that are not in Transit at the Customer's costs subject to all goods being solely at the Customer's risk and subject to disposal in accordance with Condition 14.
ETrak shall use its reasonable endeavours to deliver the Parcels in accordance with the time schedule agreed by the parties. ETrak is entitled to convey Parcels by any means of conveyance and by any route whatsoever. Time shall not be of the essence in relation to any delivery time. ETrak does not guarantee any particular delivery deadline or date and any service levels relating to delivery timings are indicative only and not binding on ETrak.
Where, for any reason whatsoever, ETrak is unable to convey the Parcel to the Delivery Location in accordance with Clause 7.3, or to effect delivery at the Delivery Location:
ETrak shall endeavour to communicate with the Customer and request a new address to which the Parcel can be delivered in the country in which the Parcel is then lying (at the Customer's cost); and
if ETrak is unable to communicate with the Customer within a reasonable time, or if it is not provided with a new address for delivery by the Customer within a reasonable time, or ETrak deems the Parcel to be undeliverable for any other reason and no further instructions are communicated by the Customer within a reasonable time from ETrak’s request for how to deal with the Parcel (at the Customer’s cost) ETrak shall be at liberty to deal with the goods in accordance with Condition 14. Prior to any disposal or destruction in accordance with Condition 14, the goods shall be held solely at the risk and cost of the Customer.
PAYMENT AND PRICING
ETrak's Charges for the Services shall be payable by the Customer. However, ETrak shall also have the right to demand and obtain payment from the sender or the consignee, if different from the Customer, or from any other person who may be liable to pay the Charges.
Where the Charges have been established based upon the requirements that the Customer shall send the minimum number of Parcels to ETrak pursuant to the Contract per month and the quantity of Parcels sent by the Customer is below such minimum Parcel volumes for two (2) months in any rolling six (6) month period (a "Minimum Volume Issue"), the parties will, if required by ETrak, discuss whether the Minimum Volume Issue is likely to be remedied and, if not, the impact of such lower level on the charges. The Customer will not unreasonably withhold its agreement to a proposed increase to the charges if a Minimum Volume Issue occurs.
The Customer will pay ETrak's Charges no later than the date specified on ETrak's invoice/statement or such other period as may be expressly agreed with the Customer in writing. If no such time is specified, payment will be due within seven (7) days of the invoice being raised by ETrak.
If the Customer disputes any amount invoiced by ETrak, it must notify ETrak in writing within fourteen (14) days of the invoice being raised. In such circumstances, the Customer will pay any undisputed amounts without delay in accordance with Condition 8.3. The Customer will provide reasoning and, where possible, evidence justifying the amount in dispute. ETrak will act reasonably when considering such information and will inform the Customer within fourteen (14) days whether it agrees that the Customer has been incorrectly invoiced. If ETrak agrees that the Customer has been incorrectly invoiced, it shall re-issue an invoice for the correct amount (taking into account any sums which have already been paid by the Customer). If ETrak does not agree that the Customer has been incorrectly invoiced, such sums shall be deemed to be payable within seven (7) days of the decision being made by ETrak that it does not agree with the dispute (and Condition 8.5 shall be applicable accordingly). If the Customer does not notify ETrak within fourteen (14) days of an invoice being raised by ETrak that it disputes it, it shall be deemed to have accepted the invoice (and the sums indicated on the invoice shall be payable within the timescales described in Condition 8.3). The Customer agrees that it will only dispute invoices in good faith.
If any payment under the Contract is overdue, then without prejudice to ETrak's other rights and remedies, ETrak reserves the right to place an account on hold, suspend performance of the Services and/or require the Customer to pay interest on the overdue amount (whether before or after judgment) at the statutory rate of interest payable on late payments from time to time, such interest to accrue on a daily basis, from the due date for payment until payment is made in full.
ETrak shall be entitled to set-of any monies owed by the Customer to ETrak from any sums which ETrak owes the Customer (for any reason in accordance with applicable laws). The Customer has no right of set of against ETrak.
ETrak shall be entitled at any time and from time to time to increase ETrak's charges for carriage or other Services by giving to the Customer not less than seven (7) days' prior written notice to accord with increases in relevant costs of ETrak's business such as, but not limited to, fuel, exchange rates, licence fees and labour.
Subject to Condition 8.9, all amounts payable by the Customer are subject to Value Added Tax and any other applicable taxes at the current rate (which shall also be payable by the Customer).
8.9 ETrak shall pay any Taxes and Duties in respect of the export and/or import of the Consignment or Parcel during Transit, unless agreed otherwise. Where any amount of Taxes and Duties are payable in respect of such Transit:
ETrak shall do so on the sole basis that in doing so it is acting as the Customer's fully authorised agent and the Customer shall fully reimburse ETrak for all such Taxes and Duties plus an amount equivalent to 4% of such Taxes and Duties or £3 per parcel, whichever is higher, as a processing fee;
whether or not delivery of the goods is made to the address to which they are consigned, immediately upon receipt of ETrak's invoice in respect of such Taxes and Duties the Customer shall settle such invoice in full no later than seven (7) days after the issue of that invoice or such other period as may be expressly agreed with the Customer in writing; and
in the event of any Customer failing to comply strictly with Sub-Conditions 8.1 or 8.9.2 above, ETrak shall be at full liberty to deal with the goods in accordance with Condition 14.
If the goods are not ready for collection by ETrak or delivered and unloaded by the Customer at the place and time agreed or ETrak is prevented from performing the Services because of restricted access to the Pick-up Location or a last-minute cancellation of the Services, ETrak will make a charge for "Nothing to Collect" at ETrak's prevailing rates.
LIABILITY FOR LOSS AND DAMAGE
Subject to the provisions of this Condition 9 and of Conditions 5 and 10 ETrak shall not be liable for any physical loss of, or physical damage to Parcels or other non-compliance with the Contract if such loss, damage or noncompliance has arisen from:
the Customer or consignee not taking or accepting delivery within a reasonable time; or
insufficient or improper packing, labelling or addressing, including incorrect or missing postcode information; or
any breach of the Customer warranties set out in Condition 6; or
damage or breakage of articles, or for that part of any articles that comprise of fragile materials and/or liquids, unless the Customer has properly declared the contents of the relevant Parcel and the Parcel is correctly packaged in a manner that would reasonably prevent such damage or breakage; or
damage caused by Parcels containing any form of liquid, or damage to containers containing liquids or loss of liquids themselves, unless the Customer has properly declared the contents of the relevant Parcel and the Parcel is correctly packaged in a manner that would reasonably prevent such loss or damage; or
any other act or omission of the Customer or owner of the goods or of the servants or agents of either; or
seizure of goods under legal process or refusal or delay to allow the goods through Customs.
In addition, ETrak shall not be under any liability of any kind for a Parcel or other goods:
where there has been fraud by the Customer or the owner of the goods or the servants or agents of either; and/or
when the Parcel is not in Transit.
LIMITATION AND EXCLUSION OF LIABILITY
Where the Customer has elected to use ETrak Services subject to Conditions 5, 6, 9, 10.2, 10.3 and 11 hereof, and to the extent permitted by law, the total aggregate liability of ETrak (whether in contract, breach of statutory duty, misrepresentation, tort, negligence or otherwise) under or in connection with the Contract for the loss of or damage to any Parcel (inclusive of freight charges) or any other breach of these
Conditions shall be limited to the lesser of the following:
for all claims relating to a Consignment, the declared value of the Consignment capped at a maximum of £1,000; or
where the claim relates to OnTrak Lite an amount equivalent to the lesser of the cost price of the goods or £25 per Parcel, subject to the overall caps described in Condition 10.1.1.
where the claim relates to OnTrak, an amount equivalent to the lesser of the cost price of the goods or £50 per Parcel, subject to the overall caps described in Condition 10.1.1.
Notwithstanding Condition 10.1, but subject to 10.3, ETrak shall, in no circumstances whatsoever, (unless required by the Conventions), be liable to the Customer for any of the following (whether in contract, tort, statutory duty, misrepresentation, negligence or otherwise):
any indirect or consequential loss or damage of any kind (including, without limitation, loss of business and loss of goodwill), or
for any loss of profits, loss of business or future custom, loss of contracts, loss of anticipated savings, loss of goodwill, or loss of revenue or any wasted expenditure (regardless of whether any of these types of loss or damage are direct, indirect or consequential).
Nothing in these Conditions shall operate so as to exclude or limit the liability of either party to the other for death or personal injury arising out of negligence, or for any other liability which cannot be excluded or limited by law.
The Customer acknowledges that ETrak is reliant on the Customer's compliance with its responsibilities set out in the relevant Contract in order for ETrak to provide the Services and that a failure by the Customer will relieve ETrak from liability for a failure to provide the affected Services. ETrak shall only be liable up to the amount of the loss or damage proven by the Customer, which shall be capped to the declared value of the contents noted on the customs documents or manifests provided by the Customer and it is the Customer’s responsibility to prove that it has incurred loss or damage and to provide proof of the value of the goods affected when making a claim. Where claims are accepted for payment by ETrak the exchange rate valid on the date of payment of the claim to the Customer shall apply.
All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
If the Customer requires greater protection than that provided under this clause 10 it may request an enhanced liability coverage to be included as part of its Services from ETrak. Upon payment of the applicable amount and completion of the formalities by the Customer, the liability of ETrak for loss or damage to parcels shall be limited to the enhanced liability option selected by the Customer and set out in any Customer Agreement.
CLAIMS FOR COMPENSATION
The Customer must notify ETrak of any loss or damage giving rise to a claim under or in connection with the Contract within fourteen (14) days of the date of commencement of Transit and confirm it by notice in writing within twenty eight (28) days of the date of commencement of Transit including providing any proof of loss evidence requested by ETrak. Missing scans or missing tracking information alone does not constitute a basis for any claim for compensation and ETrak does not assume any responsibility or liability for missing scans or missing tracking information. If the Customer fails to do so, ETrak shall not be liable for any loss or damage, save and except where the
Customer proves that:
it was not reasonably possible for the Customer to advise ETrak or make such claim in writing within the time limit applicable; and
such advice or claim was made within a reasonable time.
in any event any claim made by the Customer must be made (including provision of accurate and complete proof of loss evidence as requested by ETrak) within three months from the date of dispatch for Parcels sent using the ETrak services.
In the event of a claim for damage, the Customer must ensure that the Consignment or relevant Parcel (as applicable) and its packaging is held for inspection at the delivery point or is otherwise made available for inspection by ETrak or the Customer will provide photographic evidence of such damage with the claim form. A payment of any claim by ETrak shall be in full and final settlement of such claim.
The Customer shall indemnify ETrak against:
losses suffered by ETrak arising from any negligent act, negligent omission, negligent misdirection or negligent misstatement by the Customer, consignor or consignee, and each of their servants and agents;
subject to Condition 5.2, claims and demands of any nature for loss or damage resulting from the carriage of Dangerous Goods, Restricted Items, hazardous goods or flammable goods and/or Illegal Goods;
claims and demands of any nature in respect of loss of or damage to the goods made by the Customer and/or any third party additional to or in excess of the limits of liability of ETrak set out in these Conditions;
any claims made, penalties imposed or sums payable by ETrak to any customs, governmental or regulatory authority as a result of carrying or delivering the Parcels including, but not limited to, claims made by Her Majesty's Revenue and Customs and/or the Commissioners of Customs and Excise in respect of dutiable goods; and
claims and demands made by any third party attributable to lack of authority on the part of the Customer to enter into the Contract or act on its behalf and/or any breach of Condition 4.1.
RIGHTS OF THIRD PARTIES
The Customer acknowledges and agrees that the provisions of Conditions 3, 4, 5, 6, 8, 9, 10, 11 and 12 shall extend to protect the members of the ETrak Group and their respective employees, subcontractors and agents (collectively the "Third Parties"). In addition, the members of the ETrak Group will be entitled to enforce the rights granted to them pursuant to the terms of the Contract. Accordingly, any reference to "ETrak" in Conditions 3, 4, 5, 6, 8, 9,10, 11 and 12 shall also be deemed to be a reference to the Third Parties.
Each of the Third Parties shall be entitled to enforce any right granted to them in these Conditions pursuant to the Contracts (Rights of Third Parties) Act 1999 directly against the Customer. In addition, such Conditions shall be enforceable by ETrak for itself and as trustee or agent for such Third Parties.
The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under the Contract are not subject to the consent of any person that is not a party to the Contract.
LIEN AND DISPOSAL OF GOODS
ETrak shall have a lien on all goods carried for the Customer for any amount due to ETrak whether pursuant to the Contract or otherwise and for the cost of recovering the same.
If the amounts owing to ETrak in respect of which it has a lien are not satisfied within a reasonable time of the commencement of Transit, then without prejudice to any other rights available to ETrak, ETrak shall be at full
sell the goods either privately or by auction and to apply the proceeds of any such sale in or towards any monies owing to it and the expense of the sale and shall account to the Customer for the balance remaining if any;
destroy or abandon the goods if any sale under Sub-Condition 14.2.1 is impractical in the opinion of ETrak due to the value or saleability of the goods in question, or otherwise; and such sale or destruction as the case may be shall be a full discharge of any liability of ETrak in respect of the goods. The Customer shall indemnify ETrak for any claims made by third parties which result from ETrak's exercise of its stated rights pursuant to this Condition 14.
ETrak shall be relieved of its obligation to perform the Contract to the extent that performance thereof is prevented or delayed by riot, war, invasion, act of foreign enemies, hostilities (whether war be declared or not), acts of terrorism, seizure, hijacking, civil war, civil commotion, malicious damage, rebellion, revolution, insurrection of military or usurped power, fire, severe weather conditions, earthquake, flood, lightning, other natural physical disaster, pandemic outbreaks, industrial dispute, labour disturbance, delay by any government or public or local authority, any action of customs, governmental or regulatory authority including the customs of any country where the goods are carried and any other causes beyond the reasonable control of ETrak and for the avoidance of any doubt ETrak's charges shall be payable in full in such circumstances, without prejudice to ETrak's rights at common law to treat the Contract as frustrated.
TERM AND TERMINATION
The Contract commences on the Commencement Date and shall continue in full force and effect for a period of one (1) years from the Commencement Date ("Initial Term"), unless it is terminated earlier in accordance with its terms.
The Contract shall be automatically renewed for additional periods of twelve (12) months (each a "Renewal Period") unless one of the parties provides written notice of its intention to terminate the Contract to the other party by no later than three (3) months before the end of the Initial Term or the current Renewal Period. If such party issues a notice of termination under this Condition 16.2, the Contract shall terminate at the end of the Initial Term or the current Renewal Period (as applicable). For the purposes of the Contract, the "Term" shall mean the Initial Term and any Renewal Period in accordance with this Condition 16.2.
Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other immediately on giving notice to the other if:
the other party commits a material breach of the Contract (which shall include, in the case of the Customer's breach, failure to pay any Charges by the date due) and (if such breach is capable of remedy) does not remedy such breach within thirty (30) calendar days after receipt of notice from the first party specifying the breach and requiring its remedy; or
the other party experiences an Insolvency Event; or
the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
On termination or expiry of this Contract for any reason:
the Customer shall immediately pay to ETrak all ETrak's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, ETrak may submit an invoice, which shall be payable immediately on receipt;
the accrued rights, remedies, obligations and liabilities of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination; and
Conditions which expressly or by implication have effect after termination shall continue in full force and effect.
SEVERABILITY & NO WAIVER
If any of these Conditions are held to be invalid for any purpose, it shall for that purpose be deemed to have been omitted, but shall not prejudice the effectiveness of the rest of these Conditions. Failure to enforce or exercise at any time or for any period any provision of these Conditions or the Contract does not constitute and shall not be construed as a waiver of such provision and shall not affect the right later to enforce such provision or any other provision contained in these Conditions or the Contract.
INTERPRETATION AND JURISDICTION
The Contract shall in all respects be subject to and construed in accordance with English Law and the parties to the Contract hereby submit to the exclusive jurisdiction of the Courts of England and Wales. Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
Neither party shall, without the prior written consent of the other party, use or disclose the confidential Information of the other party.
Each party will take all reasonable precautions to protect the other party's confidential Information, using at least the same standard of care as it uses to maintain the confidentiality of its own confidential Information.
Notwithstanding the foregoing, a party may disclose Confidential Information:
to any employees, directors, consultants, contractors, professional advisers and counsel who have a need to know in connection with this Contract and have executed a reasonably protective non-disclosure agreement with the disclosing party, or
pursuant to legal process; provided that, the disclosing party shall, unless legally prohibited, provide the non-disclosing party with reasonable prior written notice sufficient to permit it an opportunity to contest such disclosure.
INTELLECTUAL PROPERTY RIGHTS AND PROMOTIONAL ACTIVITY
As between the parties, all Intellectual Property Rights and all other rights in the Deliverables shall be owned by ETrak or its third party licensors. Subject to Condition 20.2, ETrak licenses all such rights to the Customer free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Services during the Term.
ETrak hereby provides the Customer with a worldwide, royalty free licence for the Term to use all reports which are provided by ETrak to the Customer during the Term.
ETrak shall be entitled during the Term of the Contract to refer to its relationship with the Customer on its website and other promotional material, such as case studies and press releases. Accordingly, the Customer hereby grants ETrak free of charge and on a non-exclusive basis a right to use the Customer's logos and trademarks in a form provided by the Customer in relation to such agreed activity.
USE OF CUSTOMER DATA
The Customer provides personal data (as defined in the General Data Protection Regulation or any legislation enacting such General Data Protection Regulation into UK legislation, as amended or replaced, collectively defined as the “Data Protection Legislation”) of consignees and other individuals to ETrak in order for ETrak to provide the Services. In relation to any personal data provided by the Customer to ETrak the Customer warrants undertakes and confirms that it:
has legal grounds for sharing the personal data with ETrak as envisaged and that it processes, has processed and will process the personal data in compliance with the Data Protection Legislation and all applicable laws;
has obtained any necessary consents from the receiver of the goods as required under the Data Protection Legislation to pass to ETrak their details including without limitation as applicable mobile telephone number or passport or identification data to provide the Services;
has made the consignee aware that such details may be used by ETrak to enhance the delivery process for the consignee and it will use notifications and geodata for that purpose, which may involve ETrak sharing such details with third parties and that ETrak will process the personal data for the purpose of providing the Services and share the personal data with its agents or subcontractors or affiliates or other third party service providers for the purpose of providing or improving the Services.
ORDER OF PRECEDENCE
If there is any conflict, ambiguity or inconsistency between the parts of the Contract, then the following order of precedence shall apply:
The relevant Customer Agreement;
any additional terms agreed between the duly authorised parties in writing and agreed to form part of the Contract;
The Contract constitutes the entire agreement between the parties in relation to its subject matter. It replaces and extinguishes all prior agreements, draft agreements, arrangements, collateral warranties, collateral contracts, statements, assurances, representations and undertakings of any nature made by or on behalf of the parties whether oral or written, in relation to that subject matter.
Each party acknowledges that in entering into the Contract it has not relied upon any oral or written statements, collateral or other warranties, assurances, representations or undertakings which were made by or on behalf of the other party in relation to the subject-matter of the Contract at any time before its signature (together, "Pre-Contractual Statements"), other than those which are set out in the Contract.
Each party hereby waives all rights and remedies which might otherwise be available to it in relation to such Pre-Contractual Statements.
Nothing in this Condition shall exclude or restrict the liability of either party arising out of its pre-contract fraudulent misrepresentation or fraudulent concealment.