+FLOW SOLUTIONS UK LIMITED – TERMS AND CONDITIONS OF BUSINESS (MAY 2018, v2.1)

PART A – GENERAL

1. DEFINITIONS & INTERPRETATION

1.1 In these terms and conditions, the following words and phrases shall have the meanings ascribed to them below:
“Charges” means the Charges payable for the Services, as specified in the Quotation.
“Contract” means the contract between Flow and the Client relating to the supply of Services incorporating the Quotation and these terms and conditions;
“Client” means the company, person or party detailed in the Quotation;
“Controller” A controller determines the purposes and means of processing personal data.
“Processor” A processor is responsible for processing personal data on behalf of a controller.
“Flow” means Flow Solutions UK Limited (Company number 06644136) whose registered office is at 34B Rowley Lane, Lepton, Huddersfield, West Yorkshire, HD8 0JD;
“Quotation” means the written Quotation, overleaf;
“Services” means the services detailed in the Quotation;
“Stock” means the Stock detailed in the Quotation;
“Working Example” means an example of Stock, fully assembled by the Client;
1.2 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.3 Words in the singular include the plural and in the plural include the singular.
1.4 A reference to one gender includes a reference to the other gender.
1.5 Condition headings do not affect the interpretation of these terms and conditions.

2. ENTIRE AGREEMENT AND SCOPE

2.1 Subject to any variation under condition 2.4 the Contract shall be on these terms and conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Client purports to apply under any purchase order, confirmation of order, communication, specification or other document).
2.2 No terms or conditions endorsed on, delivered with or contained in the Client’s purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 Any variation to these terms and conditions and any representations about the Contract shall have no effect unless expressly agreed in writing and signed by a director of Flow.
2.4 The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Flow which is not set out in the Contract.
2.5 The terms and conditions set out in this Part A shall always apply to the Contract.
2.6 If (with reference to the Quotation) the Contract encompasses the supply of:
2.6.1 “Assembly and Compilation Services”, the additional terms and conditions set out in Part B shall also apply;
2.6.2 “Mail Delivery Services”, the additional terms and conditions set out in Part C shall also apply.
2.7 If there is any conflict between the provisions of this Part A and those of Parts B and C, the provisions of this Part A shall prevail.

3. SUPPLY

3.1 In consideration of the Client paying the Charges, Flow shall perform the Services in accordance with the Contract, using reasonable skill and care.

4. TIME FOR PERFORMANCE

4.1 Any dates or times specified by Flow for performance of the Contract are an estimate only. Time for performance shall not be of the essence and shall not be made so by the service of any notice.
4.2 Performance of the Contract shall be within a reasonable time.

5. CLIENT CO-OPERATION

5.1 Flow and the Client shall each appoint a project manager who has the authority and ability to deal with all aspects of the Contract.
5.2 The Client shall provide all information, documentation and materials reasonably requested by Flow to enable Flow to perform the Contract.

6. CLIENT DELIVERY

6.1 The Client shall follow Flow’s reasonable delivery instructions as specified from time to time

7 CHARGES

7.1 If the Quotation does not state a currency, the Charges shall be deemed to be in UK £s (pounds sterling) and unless expressly stated otherwise, shall exclude VAT (where applicable) at the applicable current rate but shall include all delivery charges.

8. PAYMENT TERMS

8.1 Unless otherwise specified in the Quotation, on completion of the Services, Flow shall raise an invoice for payment of the Charges. Such invoice shall be paid by the Client in full within thirty (30) days of receipt.
8.2 The Client shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Client has a valid court order requiring an amount equal to such deduction to be paid by Flow to the Client.
8.3 Time for payment shall always be of the essence. If the Client fails to pay Flow any sum due pursuant to the Contract, the Client shall be liable to pay interest to Flow on such sum from the due date for payment at the annual rate of 8% above the base lending rate from time to time of the Bank of England, accruing on a daily basis until payment is made, whether before or after any judgment. Flow reserves the right to claim compensation under the Late Payment of Commercial Debts (Interest) Act 1998.
8.4 No payment shall be deemed to have been received until Flow has received cleared funds.

9. LIMITATION OF LIABILITY

9.1 The following provisions set out the entire financial liability of Flow (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client in respect of:
9.1.1 any breach of these terms and conditions;
9.1.2 any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.

9.2 Nothing in these conditions excludes or limits the liability of Flow:
9.2.1 for death or personal injury caused by Flow’s negligence;
9.2.2 under section 2(3), Consumer Protection Act 1987;
9.2.3 for any matter which it would be illegal for Flow to exclude or attempt to exclude its liability;
9.2.4 for fraud or fraudulent misrepresentation.

9.3 Subject to conditions 9.1, 9.2 and 9.4:
9.3.1 Flow’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Charges paid under the Contract.
9.3.2 Flow shall not be liable for any indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, loss of data, depletion of goodwill and similar loss), costs, damages, charges or expenses.
9.4 Except as otherwise provided for in the Contract, all other warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Services Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.

10. INDEMNITY

10.1 The Client shall indemnify and keep Flow indemnified against any and all costs (including legal costs and costs of enforcement), expenses, liabilities, damages, claims, demands, and proceedings incurred or suffered by Flow as a result of any breach of Contract by the Client.

11. TERMINATION

11.1 The Contract may be terminated by Flow or the Client with immediate effect if:
11.1.1 the other is in material breach of the terms and conditions of the Contract and the breach is not capable of remedy; or
11.1.2 the other is in material breach of the terms and conditions of the Contract and the breach is capable of remedy and that other party shall have failed to remedy that breach within thirty (30) days of notice, specifying the breach and requiring its remedy; or
12.2 The Contract may be terminated by Flow if the Client:
12.2.1 (being a person) has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors; or
12.2.2 (being a body corporate) shall have a receiver or administrative receiver appointed over it or over any part of its undertaking or assets or shall pass a resolution for winding-up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or shall become subject to an administration order or shall enter into any voluntary arrangement with its creditors;
12.2.3 ceases to trade; or
12.2.4 suffers anything analogous to any of the foregoing under the law of any other jurisdiction.
12.3 Termination of the Contract (howsoever occasioned) shall not affect any accrued rights or liabilities of either party hereunder or at law, nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or to continue in force on or after such termination.
12.4 All payments payable to Flow under the Contract shall become due immediately upon its termination.
12.5 The Client shall have no right to terminate the Contract.

13. UNFORSEEABLE DELAYS

13.1 Flow reserves the right to defer the performance of the Contract (without liability to the Client) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of Flow including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials.

14. REGULATORY COMPLIANCE

14.1 If a licence, consent or permission of any government or other authority is required for the acquisition, carriage or use of the Stock by Flow, the Client shall obtain the licence or consent at its own expense and if requested/necessary produce evidence of it to Flow on demand. Failure to obtain any licence or consent does not entitle the Client to withhold or delay payment of the Charges. Any additional expenses or charges incurred by Flow resulting from such failure shall be paid by the Client.

15. INTELLECTUAL PROPERTY RIGHTS

15.1 All intellectual property rights in any materials submitted by the Client to Flow will remain vested in the Client or its licensors.
15.2 All intellectual property rights in any materials created or used by Flow will remain vested in Flow (or its relevant licensors) and to the extent that any rights in such materials vest in the Client by operation of law, the Client hereby assigns such rights to Flow.
15.3 Both Flow and the Client acknowledge and agree that they shall not acquire or claim any title to any of the other’s intellectual property and will not, at any time, do, or omit to do, anything which is likely to prejudice the other’s ownership of such intellectual property rights.

16. DATA AND DATA PROTECTION

16.1 For the purposes of this condition 16: (a) “Data Protection Legislation” means (i) unless and until the General Data Protection Regulation 2018 (“GDPR”) is no longer directly applicable in the UK, the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998, including the Data Protection Act 2018; and (b) “Personal Data” has the meaning given to it by the Data Protection Legislation.

16.2 The parties acknowledge that for the purposes of the Data Protection Legislation, this condition 16 constitutes a written confirmation that the Client is the data controller and Flow is the data processor (where “Data Controller” and “Data Processor” have the meanings as defined in the Data Protection Legislation).

16.3 Without prejudice to the generality of condition 16.1, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Flow for the duration and purposes of the Contract.

16.4 Without prejudice to the generality of condition 16.1, Flow shall, in relation to any Personal Data processed in connection with the performance by Flow of its obligations under the Contract:

16.4.1 process that Personal Data only on the written instructions of the Client unless Flow is required by the laws of any member of the European Union or by the laws of the European Union applicable to Flow to process Personal Data (“Applicable Laws”). Where Flow is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, Flow shall promptly notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Flow from so notifying the Client;

16.4.2 ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Client, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);

16.4.3 ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and

16.4.4 not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Client has been obtained and the following conditions are fulfilled:

the Client or Flow has provided appropriate safeguards in relation to the transfer;

the data subject has enforceable rights and effective legal remedies;

Flow complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and

(iv) Flow complies with reasonable instructions notified to it in advance by the Client with respect to the processing of the Personal Data;

16.4.5 assist the Client, at the Client’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

16.4.6 notify the Client without undue delay on becoming aware of a Personal Data breach;
16.4.7 at the written direction of the Client, delete or return Personal Data and copies thereof to the Client on termination of the agreement unless required by Applicable Law to store the Personal Data; and

16.4.8 maintain complete and accurate records and information to demonstrate its compliance with this condition 9.

16.5 Either party may, at any time on not less than 30 days’ notice, revise this condition 9 by replacing it with any applicable controller to processor standard clauses or similar terms forming party of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).

16.6 For the avoidance of doubt, the Client shall keep a full back up of any data supplied to Flow. Flow shall not be responsible to the Client in any way for the loss or destruction of Client data during transmission or submission via any means or because a data file contains inappropriate, unnecessary or spurious information relating to the Services. If Flow identifies that such data file contains unnecessary or spurious information which has no relevance to the Services, it reserves the right to not commence the services, delete the data file, (subject to notifying the Client of its actions). Flow shall invite the Client to acknowledge such deletion and/or to resend a compliant data file.

16.7 Flow shall not amend any Client data file without the written instruction of the Client.

16.8 Flow shall undertake the Services based on the understanding that the Clients data files contain low risk Personal Data (Flow Data Rating of “A”/ See Data Confidentiality & Risk Rating Matrix) and it remains the responsibility of the Client at all times to inform Flow, to the contrary.

17. EXPORT

17.1 The Stock may be supplied by Flow for export from the United Kingdom. The Client shall comply with all applicable legislation and regulations and payment of any unknown duties, import taxes or other costs of import. If Flow notifies the Client that export of the Stock into a country is prohibited Flow shall not supply the Stock into that country.
17.2 The Client shall obtain all licences, authorisations and approvals required for export from the United Kingdom or import into any other country.

18. DISPUTE RESOLUTION

18.1 In the event of any bona fide dispute or difference arising between the parties in connection with the Contract (excluding any dispute relating to non payment of the Charges by the Client), the parties shall in accordance with this condition 18, attempt to resolve such dispute or difference in good faith and without recourse to legal proceedings.
18.2 If the parties are unable to resolve such dispute or difference within fifteen (15) days of initial discussions between the parties taking place, either party may request the other in writing that the matter be referred to senior representatives of the parties with authority to settle the dispute, who shall attempt to resolve the dispute within thirty (30) days of the written request to do so.
18.3 If the dispute or difference is not resolved as a result of a meeting of the senior representatives of the parties pursuant to condition 20.2 above, or if no meeting of the senior representatives occurs within the prescribed time periods set out in that condition, either party may request the Centre for Dispute Resolution (“CEDR”) in writing to appoint an independent expert.
18.4 If either party so requests CEDR to appoint an independent expert, such party must instruct CEDR to ensure that the expert:
18.4.1 acts as an expert and not an arbitrator;
18.4.2 affords the parties the opportunity within reasonable time limits to make representations to him;
18.4.3 informs each party of the representations of the other;
18.4.4 affords each party the opportunity within reasonable time limits to make submissions to him on the representations of the other; and
18.4.5 notifies the parties of his decision, with reasons as quickly as practicable.
18.5 The fees and expenses of the expert including the cost of his nomination shall be borne equally by the parties who shall bear their own costs as to the submission and determination of the dispute or difference by the expert, save as where otherwise directed by the expert.
18.6 The expert determination is to be conclusive and binding on the parties except where there is fraud or a manifest error or on a matter of law.

19. GENERAL

19.1 Flow may assign the Contract or any part of it to any third party. The Client shall not be entitled to assign the Contract or any part of it without the prior written consent of Flow.
19.2 Each right or remedy of Flow under the Contract is without prejudice to any other right or remedy of Flow whether under the Contract or not.
19.3 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
19.4 Failure or delay by Flow in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
19.5 Any waiver by Flow of any breach of, or any default under, any provision of the Contract by the Client shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
19.6 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
19.7 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.

PART B – ASSEMBLY AND COMPILATION SERVICES

1. CLIENT CO-OPERATION

The Client acknowledges that the proper performance of the Services is dependent upon Client providing Flow with a Working Example in good time prior to the commencement of the Services.

2. RISK

2.1 Risk in the Stock shall transfer to the Client on delivery.

3. ASSEMBLY & COMPILATION

3.1 Flow shall assemble or compile the Stock in accordance with the Working Example. In the absence of a Working Example, Flow shall assemble or compile the Stock by any method which it sees reasonably fit.

4. LIEN AND RIGHT OF SALE

4.1 Without prejudice to any other remedies which Flow may have against the Client, Flow shall in respect of all unpaid Charges have a general lien on all Stock in its possession.
4.2 If any of the Charges remain unpaid in breach of condition 9, Flow shall have the right to sell any Stock in Flows possession, which has been supplied by the Client. Any proceeds of such sale shall be used for the purpose of settling the Charges.

5. WARRANTIES

5.1 Flow warrants that the assembled Stock will materially correspond with the Working Example.
5.2 Flow warrants that the Stock will be assembled using reasonable skill and care.
5.3 If the Stock is assembled in breach of the warranties in conditions 5.1 or 5.2, subject to conditions 5.4 and 5.6, Flow shall (at its option) repair, replace or re-assemble the Stock.
5.4 Flow shall not be liable for any breach of the warranties in conditions 5.1 and 5.2 unless:
5.4.1 the Client gives Flow written notice of the breach within seven (7) days of the date of the breach coming to its attention; and
5.4.2 Flow is given a reasonable opportunity after receiving such notice to examine the Stock at its own expense.
5.6 Flow shall have no liability to repair, replace, re-assemble or re-compile any Stock, unless any defect in the performance of the Services was wholly obvious at the time of their performance.
5.7 If Flow complies with condition 5.4, it shall have no further liability to the Client.

6. LIMITATION OF LIABILITY

6.1 Subject to condition 9 of Part A above, if Stock is lost or damaged whilst in the possession of Flow, the total liability of Flow shall be limited to twenty five thousand pounds (£25,000), reflecting Flow’s available insurance cover.

PART C – MAIL DELIVERY SERVICE

1. USER GUIDE

1.1 The User Guide forms part of the Contract and shall have effect as if set out in full in the main body of the Contract and any reference to the Contract includes the User Guide.
1.2 The User Guide sets out Flows service level target. The Client acknowledges that Flow is required to use Royal Mail for the final sortation and delivery, and accordingly is not able to offer any assurance as to the actual delivery date of any Mailing Item. Accordingly, Flow shall not be liable to the Client or to any other person for failure to deliver within this target (whether as a result of a breach of this condition or otherwise).

2. COLLECTIONS

2.1 The Client shall ensure that no Collection will contain any bag weighing in excess of 11 kg nor any letter tray weighing more than 10 kg.
2.2 The Client warrants that either it is the owner of all Mailing Items in each Collection or if not the owner it is an agent of the owner and is authorised to hand over the Mailing Items on the owner’s behalf.
2.3 The Client shall ensure that:
(a) each Mailing Item complies with relevant addressing and access Indicator requirements;
(b) no Mailing Item in a Collection will bear a Royal Mail postage stamp or other Royal Mail mark, impression or device (other than as part of the Indicator);
(c) each Mailing Item in a Collection will comply with the Scheme (except as expressly permitted by the Contract);
(d) each Mailing Item complies with the agreed parameters detailed in the User Guide.

3. EXCLUSION OF LIABILITY

3.1 Subject to condition 9 of Part A above, the Client acknowledges and agrees that:
(a) the treatment of all Mailing Items under the Contract will be the same as in the case of ordinary Mailing Items posted with Royal Mail and, in particular, Flow does not keep detailed records of conveyance or delivery of any Mailing Items;
(b) in the event of loss of or damage to any Mailing Item dealt with by Flow under the Contract, Flow shall, subject to satisfactory proof of hand over to Flow being provided by the Client and of the loss or damage, and subject to the remainder of this condition 3, pay compensation to the Client subject to the following limits:
(i) where Flow has already handed over the relevant Mailing Item to Royal Mail, the compensation shall be limited to whatever payment Flow recovers from Royal Mail under the Scheme in relation to that Mailing Item;
(ii) otherwise, the compensation in respect of the relevant Mailing Item shall be limited to the Charges paid in respect of such Mailing Item and the cost of producing such lost or damaged Mailing Item.

4. INSPECTION RIGHTS

4.1 Flow reserves the right for it and for Royal Mail to open and inspect Mailing Items to verify compliance with the requirements of relevant law and regulation (including but not limited to sections 85 and 107 of the Postal Services Act 2000) and the Contract.

5. DEFINITIONS

5.1 In this Part C, the following defined terms shall have the following meanings ascribed to them:
(a) “Collection” means the total amount of Mailing Items to be collected in one instance by Flow on a specific day from location agreed with the Client;
(b) “Mailing Item” means a Letter, Large Letter, A3 Packet or Packet, as those terms are defined in the User Guide;
(c) “Scheme” means the Post Office Inland Letter Post Scheme IL1/2000 (as amended from time to time) and any replacement or similar Scheme or Schemes (and any amendments thereto) relating to inland postal services made or deemed to have been made by Royal Mail from time to time under section 89 of the Postal Services Act 2000;
“User Guide” means the Flow guide as published and amended by Flow from time to time and includes any other document referred to in that User Guide.

Revision Number
Summary of Changes made from previous revision
Requested By: R Standing
Authorised By: R Standing
2.1
Update to meet the requirements of BRC Global Standard for Storage and Distribution
Quality Manager C Mallinson
Site Director R Standing

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