The following definitions and rules of interpretation apply in these Conditions.
“Business Day” a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
“Charges” the charges payable by the Customer for the supply of the Services in accordance with clause 5.
“Commencement Date” has the meaning given in clause 2.2.
“Conditions” these terms and conditions as amended from time to time in accordance with clause 11.4.
“Contract” the contract between FO and the Customer for the supply of Services in accordance with these Conditions.
“Customer” the person or firm who purchases Services from FO.
“Customer Default” has the meaning set out in clause 4.5.
“Data Protection Legislation” all applicable data protection and privacy legislation in force from time to time in the UK including: the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive (2002/58/EC) (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended; and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications);
“FO” means the facility owner, Clear Storage Limited, registered in England and Wales with company number 09944164;
“Intellectual Property Rights” patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
“Order” the order for Services as set out by the Customer in person, over the phone or via email, or upon the Customer’s acceptance of a quotation by FO, as the case may be.
“Services” means the packaging, collection and delivery services carried out by FO (or its authorised agent) to the Customer, including any additional unpacking services that the Customer may require.
“Site” means FO’s storage site at Poplar Way, Rotherwas Industrial Estate, Hereford, HR2 6NY.
1.2.1 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
1.2.2 Unless the context otherwise requires, any reference to European Union law that is directly applicable or directly effective in the UK at any time is a reference to it as it applies in England and Wales from time to time including as retained, amended, extended, re-enacted or otherwise given effect on or after 11pm on 31 January 2020.
1.2.3 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.
1.2.4 A reference to writing or written includes fax and email.
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 FO issues acceptance of the Order (either by telephone or email) 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 FO, and any descriptions or illustrations contained on FO’s website or in FO’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 nor 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 These Conditions shall apply from the time that the storage items are collected from the Customer’s address to the point where such items are delivered to the Site (or from the Site to a Customer designated address, if applicable).
2.6 Any quotation given by FO shall not constitute an offer, and is only valid for a period of 30 days from its date of issue.
3.1 FO shall supply the Services to the Customer in accordance with the Contract in all material respects.
3.2 FO shall collect the Customer’s storage items from the location specified by the Customer (Collection Location) and shall deliver the storage items to the Site (or from the Site to a Customer designated address, if applicable), at which point the Services have been completed and FO’s obligations under the Contract are discharged, as appropriate.
3.3 FO shall use all reasonable endeavours to meet any collection dates specified by the Customer. However, any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.4 FO may at any time assign, subcontract or transfer any or all of its rights and obligations in performing the Services under the Contract to a third party as it sees fit, including but not limited to, Customer requests for additional unpacking services.
3.5 Should any third party services be carried out in accordance with clause 3.4 above, FO may be entitled to receive commission from such third party. The Customer is entitled at any time to request information regarding the commission FO receives.
3.6 FO 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, and FO shall notify the Customer in any such event.
3.7 FO warrants to the Customer that the Services will be provided using reasonable care and skill.
4.1 The Customer shall:
4.1.1 ensure that the terms of the Order are complete and accurate;
4.1.2 co-operate with FO in all matters relating to the Services;
4.1.3 provide FO, its employees, agents, consultants and subcontractors, with access to the Customer’s premises in relation to the Services, as reasonably required by FO;
4.1.4 ensure that all storage items to be collected and delivered are properly packaged and labelled with the Customer’s details (name, address and storage unit);
4.1.5 provide FO with such information and materials as FO may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
4.1.6 ensure that the storage items do not contain prohibited, restricted or dangerous goods such as:
188.8.131.52 food or perishable goods unless securely packed so they are protected from and do not attract vermin:
184.108.40.206 any living creatures;
220.127.116.11 combustible or flammable substances such as gas, paint, petrol, oil, cleaning solvents or compressed gases;
18.104.22.168 firearms, explosives, weapons or ammunition;
22.214.171.124 chemicals, radioactive materials, biological agents; toxic waste, asbestos or other potentially hazardous substances;
126.96.36.199 any item that emits fumes, or odours;
188.8.131.52 any illegal item or substances or goods illegally obtained such as illicit (counterfeit/smuggled) tobacco or alcohol and unlicensed or unsafe goods (such as toys, electrical goods, medicines, aerosols, cosmetics, fireworks);
184.108.40.206 goods which are environmentally harmful or that are a risk to the property of any person; and
220.127.116.11 items which are irreplaceable, such as currency, jewellery, furs, deeds, paintings, curios, works of art and items of personal sentimental value.
4.1.7 comply with all applicable laws, including health and safety laws;
4.1.8 comply with any additional obligations as set out by FO from time to time.
4.2 FO has no obligation to check if the Customer has complied with its obligations in clause 4.1.6 and FO may at any time refuse to carry out the Services in light of such prohibited, restricted or dangerous storage items.
4.3 Pursuant to clause 4.1.4, the Customer acknowledges and accepts that the purpose of packaging is to protect the contents of storage items to be collected and delivered. Accordingly, the Customer shall ensure that all packaging is:
4.3.1 of sufficient quality to protect its contents in transit. For the avoidance of doubt, reusing original packaging or old packaging may not be deemed to be sufficient packaging as the structural integrity of such packaging may be compromised by age or previous use; and
4.4 sufficient to prevent the movement of contents during the performance of the Services.
4.5 If FO’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
4.5.1 without limiting or affecting any other right or remedy available to it, FO shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays FO’s performance of any of its obligations;
4.5.2 FO shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from FO’s failure or delay to perform any of its obligations as set out in this clause 4; and
4.5.3 the Customer shall reimburse FO on written demand for any costs or losses sustained or incurred by FO arising directly or indirectly from the Customer Default.
5.1 The Charges for the Services shall be the price set out in the Order, or as quoted by FO, as the case may be.
5.2 FO reserves the right to increase the Charges at any time with immediate effect. Such change shall not constitute a variation of contract in accordance with clause 11.4.
5.3 FO shall invoice the Customer in advance of collection and delivery of the storage items.
5.4 The Customer shall pay each invoice submitted by FO:
5.4.1 on first presentation before the Services are provided, or in accordance with any credit terms agreed by FO and confirmed in writing to the Customer; and
5.4.2 in full and in cleared funds via debit / credit card or bank transfer to a bank account nominated in writing by FO, and time for payment shall be of the essence of the Contract.
5.5 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by FO to the Customer, the Customer shall, on receipt of a valid VAT invoice from FO, pay to FO such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.6 If the Customer fails to make a payment due to FO under the Contract by the due date, then, without limiting FO’s remedies under clause 9, 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 5.6 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
5.7 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
6.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by FO.
7.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 7 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
8.1 FO has obtained insurance cover in respect of its own legal liability for individual claims arising from any accident, theft or damage to the vehicle used for the Services to an amount not exceeding £5,000,000 per claim. The Customer is responsible for making its own arrangements for the insurance of any excess loss.
8.2 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
8.2.1 death or personal injury caused by negligence;
8.2.2 fraud or fraudulent misrepresentation; and
8.2.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
8.3 Subject to clause 8.2, FO’s total liability to the Customer in respect of all breaches of duty in connection with the Services shall be calculated on the basis of the weight of the storage items to be delivered to the Site at a rate of £10.00 per kilogram up to a maximum of £10,000 per delivery.
8.3.1 As far as is permissible at law, the following types of loss are wholly excluded:
18.104.22.168 loss of profits
22.214.171.124 loss of sales or business.
126.96.36.199 loss of agreements or contracts.
188.8.131.52 loss of anticipated savings.
184.108.40.206 loss of use or corruption of software, data or information.
220.127.116.11 loss of or damage to goodwill; and
18.104.22.168 indirect or consequential loss (except for consumer customers).
8.4 FO has given commitments as to compliance of the Services with relevant specifications in clause 3. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
8.5 Extended rights for consumers. The Consumer Rights Act 2015 says:
8.5.1 if the product received is a service, the Customer can ask FO to repeat or fix a service if it’s not carried out with reasonable care and skill, or receive a partial refund if FO cannot fix it;
8.5.2 if a price for the Services has not been agreed beforehand, the amount charged to the Customer must be reasonable;
8.5.3 if FO has not agreed a time beforehand, the Services must be carried out within a reasonable time.
8.6 This clause 8 shall survive termination of the Contract.
9.1 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
9.1.1 the other party commits a material breach of any term of the Contract; or
9.1.2 the other party becomes, or is reasonably likely to become, insolvent or bankrupt.
9.2 Without affecting any other right or remedy available to it, FO may terminate or suspend the Contract with immediate effect by giving written notice to the Customer if:
9.2.1 the Customer fails to pay any amount due under the Contract on the due date for payment.
10.1 On termination of the Contract, the Customer shall immediately pay to FO all of FO’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, FO shall submit an invoice, which shall be payable by the Customer immediately on receipt.
10.2 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 Contract which existed at or before the date of termination or expiry.
10.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
11.1 Force majeure. 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, including (but not limited to) fire, explosion, storm, flood, earthquake, subsidence, epidemic or pandemic (including, but not limited to, severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) which causes COVID-19, and in each case, any effects arising from or in connection with the same including, but not limited to, any actions, recommendations, announcements or restrictions, related to its subject matter (whether made by a government body, authority, public health organisation or other similar official body)) or other natural disaster, strikes or industrial action by third parties, terrorist attack or threat of such attack, war (whether declared or not) or warlike operations, civil commotion, riot, invasion or failure of public or private power, sewerage or telecommunications conducting media or hardware or software.
11.2 Assignment and other dealings.
11.2.1 FO 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.
11.3 Entire agreement.
11.3.1 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.
11.3.2 Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
11.4 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
11.5 Waiver. 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. 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.
11.6 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 11.6 shall not affect the validity and enforceability of the rest of the Contract.
11.7.1 Notices to be given by FO or the Customer must be in writing and must either be delivered by hand or sent by pre-paid post. FO may also give notice to the Customer by SMS or email if the Customer has elected to receive correspondence this way. Notices shall be deemed received at the time of delivery by hand, one hour after sending by email or SMS or 48 hours after posting. Notices from FO to the Customer will be sent to the address on the cover sheet or the most recent address in England notified to FO.
11.7.2 In the event of not being able to contact the Customer at the last notified address or other contact including SMS or email, notice is deemed to have been given to the Customer if FO serves that notice on an alternative contact and authorized person (ACP) specified by the Customer at the last notified address or other contact including SMS or email of the ACP. Any notice from the Customer must be sent to the FO at the address specified. In the event that there is more than one Customer, notice to or by any single Customer is agreed to be sufficient for the purposes of any notice requirement under this Contract.
11.8 Third party rights.
11.8.1 Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
11.9 Governing law and Jurisdiction. The Contract shall be governed by English law and any dispute or claim that either party brings will be decided by the Courts of England and Wales.