Subcontractor Terms and Conditions Opening Statement of Subcontractor Terms & Conditions Subcontractors, Owner Drivers and their substitutes during engagement are not considered „employees‟ or „workers‟ of TNT. TNT is engaged solely as a client of the subcontractors business. The third party operator must also agree to and sign TNT‟s Subcontractor Terms and Conditions and Policy before l engagement may take place. The assigned subcontractor / Owner Driver agrees to the following conditions under which TNT will engage to as a client of the subcontractor. 1. Definitions In these conditions: “TNT” - means TNT UK Limited and/or associated and/or subsidiary Companies. “Subcontractor” - means the person (which shall include a Limited Company, Partnership or individual) who contracts with TNT to carry goods and includes its employees, servants and agents. “Consignment” - means goods in bulk or contained in one parcel, package or container, or a number of separate parcels, packages or containers sent at any one time in one load for TNT from one address to one address. “Contract” - means the contract of carriage between TNT and the Subcontractor. “Damage” - shall include contamination of any of the goods contained in any consignment. “Dangerous Substances” - means goods falling within the definitions of “Dangerous Substance” contained within any Statutory or other requirement or regulation from time to time in force and pertaining to the classification, packaging, labelling and carriage by road of dangerous substances. “Dangerous Substances” shall have the same meaning as “Hazardous Substances” “Mis-delivery” - shall include non-delivery. “Transit” - shall commence when the Subcontractor takes possession of the consignment and unless otherwise previously agreed, shall end either when the consignment is delivered to the consignee during normal business hours or when the consignment is delivered elsewhere or returned to TNT in accordance with instructions given pursuant to Condition 6. “Load” - shall mean the total number of items, packages or products carried in any one vehicle at any one time by the subcontractor for TNT. Words importing the singular shall include the plural and vice versa. Words importing the masculine gender shall include the feminine gender and vice versa. Such other definitions as are included in the text 2. Subcontractors Terms and Conditions TNT are inter-alia, express parcel hauliers and operate throughout the United Kingdom and Northern Ireland. The use by TNT of Subcontractors shall at all times be governed by and subject to the following terms and conditions: 2.1 TNT permits the Subcontractor, as an independent contractor, to undertake the collection and delivery of parcels on its behalf and at its direction throughout the period of engagement. 2.2 The Subcontractor shall, in connection with TNT business, undertake the pick up and delivery of parcels with all due haste and diligence, ensuring at all times the safety and condition of parcels, and operating at all times to the high standard expected by TNT. 2.3 The Subcontractor shall have no power or authority to bind or pledge TNT and shall not hold itself out, or permit itself to be held out, as having any such power or authority. 3. Loading and Unloading 3.1 When pick up or delivery takes place at TNT‟s premises TNT shall, except as otherwise agreed, arrange for the provision of such plant (including special appliances), power or labour as is necessary in addition to the Subcontractors carmen for loading or unloading goods to or from the vehicle. 3.2 The Subcontractor shall not normally be required to provide services beyond the place of pick up and/or delivery specified by TNT. If TNT requires any such additional service the Subcontractor shall carry out such additional service in accordance with the instructions of TNT. 4. Dangerous Substances 4.1 The Subcontractor shall accept dangerous substances for carriage provided that the Subcontractor has been notified in good time of the identities of the substances and other relevant information as specified by any statutory or other regulation from time to time in force for carriage by road, and provided that packaged goods are properly and safely packaged and labelled in accordance with such statutory requirements or regulations. 4.2 The Subcontractor and TNT shall comply with all statutory requirements and regulations, and observe any Codes of Practice including those approved by the Health and Safety Commission pertaining to the carriage of dangerous substances by road. 5. Consignment Notes and Proof of Delivery 5.1 The Subcontractor shall sign TNT‟s loading manifest or transit document acknowledging the receipt of the consignment and obtain and return to TNT written proof of delivery. 5.2 When a Subcontractor is used for a delivery round, or Ad-Hoc deliveries/pick ups, then the Subcontractor‟s driver must complete and sign the round debrief sheet and/or any other documentation as required by TNT. 5.3 The Subcontractor will ensure a written proof of delivery is obtained from the consignee for all consignments handed over. Where an MDT (Mobile Data Terminal) is fitted to the vehicle the subcontractor will then enter the proof of delivery details within 30 minutes of delivery, or in the case of a TNT Sameday driver delivering an Orange consignment this must be within the specified window delivery time. Where an MDT is not provided the Subcontractor must notify the depot of proof of delivery details of any premium deliveries within 60 minutes of delivery. The depot must be notified of any other proof of delivery details as soon as is practically possible. 6. Undelivered or Unclaimed Goods 6.1 When for any reason a consignment cannot be delivered or picked up the Subcontractor shall contact TNT by MDT or telephone as soon as practicable to obtain instructions. 6.2 When a consignment is held by the Subcontractor „to await order‟ the Subcontractor shall contact the TNT depot from where the work originated every 24 hours until instructions are obtained. 6.4 Each late or failed delivery and pick up will incur a service credit as agreed between TNT and the Subcontractor during the initial tendering process unless documentation can be provided to support otherwise. 7. Payment Terms 7.1 Invoices should be raised on completion of work carried out, and these will be processed upon receipt. It is our intention to pay within 21 days of receipt of a clean and valid invoice. 7.2 Invoices must quote TNT Purchase Order numbers. Payment is subject to the return of relevant POD copy consignment notes and detailed completion of TNT documentation. 7.3 Without prejudice to its other rights TNT reserve the right to deduct from any payments due to the Subcontractor under these conditions the amount of any bona fide contra accounts and/or other claims which TNT may have against the Subcontractor in connection with this Contract or any other Contract between the Subcontractor and TNT. 7.4 Subcontractor‟s will be paid in accordance with the work actually carried out based on a piece rate agreement. This is subject to review no more frequently than annually. 7.5 TNT reserves the right to pay the agreed tariff rate with each Subcontractor individually. Any rate discrepancies between two or more Subcontractors operating at the same Depot site are non negotiable. 8. Trade Mark Rights 8.1 TNT (or one or other of its associated companies) is the beneficial owner of various registered and unregistered trade marks (“the Marks”) in respect of certain services, some of which trade marks TNT or one or other of TNT‟s associated companies may have applied to register. 8.2 During the period of engagement TNT (where appropriate on behalf of its associated companies) authorises the Subcontractor to use the Marks in relation to the service on the following terms and conditions. (i) The subcontractor shall use the Marks without alteration or modification and only in such manner and with such acknowledgement of proprietorship as shall from time to time be stipulated by TNT. (ii) The subcontractor shall not use any other trade mark in relation to the service (save as may be expressly agreed otherwise) nor any other matter in writing liable to injure the reputation or distinctiveness of the Marks. (iii) The Subcontractor acknowledges the exclusive right, title and interest in the Marks of TNT and its associated companies and undertakes that it will take no action of any kind which is inconsistent with the rights of ownership of the Marks by TNT and its associated companies. (iv) Nothing herein shall be construed as giving the Subcontractor any interest in the Marks or the goodwill attaching thereto. It is specifically agreed that there is extended to the Subcontractor merely a temporary permission to use the Marks only in connection with the Subcontractor‟s business with TNT under this contract. Such use is only to be in such manner and with the result that all goodwill relating to the use of the Marks shall accrue to TNT. (v) The Subcontractor will permit TNT or its authorised representative at all reasonable times to enter the premises for the purpose of inspecting the use of the Marks made by the Subcontractor. (vi) TNT shall be absolutely entitled at any time to determine the manner of presentation or use of the Marks and to take any other steps it deems necessary or desirable in connection with the use of the Marks and the Subcontractor shall comply with all directions given by TNT from time to time. (vii) The Subcontractor shall submit to TNT or its authorised representative samples of all labels advertising or other promotional or publicity material bearing any written representation of the Marks and intended to be used in relation to the service. (viii) If, in its sole discretion, TNT or its authorised representative is of the opinion that any material referred to in sub-clause (vii) above may injure the reputation or the validity of the Marks, TNT or its authorised representative may forbid the use of such label or material, and the Subcontractor shall not thereafter use the same in any way in connection with its business or with the service. (ix) Save as expressly permitted by this Contract the Subcontractor agrees not to adopt at any time during its engagement by TNT or at any time thereafter the Marks or any name or mark which reproduces or imitates or is likely to be similar to or confuse with the Marks or any other trade marks or names owned or used by TNT or its associated companies. (x) The Subcontractor agrees that it will immediately report to TNT any actual or threatened infringement of or challenge to the validity or ownership of the Marks and will co-operate in all respects and as required by TNT in any action which TNT deems advisable to protect TNT‟s rights in the Marks. (xi) The Subcontractor agrees that it shall if and when called upon so to do by TNT execute and do and join at its own expense with TNT or its associated companies in executing and doing all such acts matters and things as may be necessary for the registration of the Subcontractor as a registered user under the provisions of Section 28 of the Trade Marks Act 1938 or any statutory modification thereof for the time being in force of the Marks or the removal of the Subcontractor‟s registration as a registered user thereof. (xii) Upon termination of this Contract in any manner provided herein the Subcontractor will cease and desist from all use of the Marks and will deliver up to TNT or its duly authorised representative all paper dies, uniforms, and other material upon which the Marks appear and remove the same from all vehicles and from the Premises. 9. Non Solicitation The Subcontractor covenants with TNT that it shall not in competition with TNT on its own account or as a director, employee, employer or agent of any other person directly or indirectly throughout its engagement and for a period of three years from the date of termination of engagement as Subcontractor transact business with or solicit for business any customers of TNT who are customers at the time of termination or within one year immediately preceding that date or solicit or entice or endeavour to entice away from TNT throughout the term of engagement or for a period of three years from the date of termination any employees or suppliers of TNT (for the avoidance of doubt including other Subcontractors) or make used of or disclose any confidential information appertaining to the business or affairs of TNT, its customers or other persons dealing with it. 10. Liability for Loss and Damage The Subcontractor is liable and will indemnify TNT from and against any claim for injury, including death, or loss of or damage to any property (other than Consignments) caused by or arising from the Subcontractors negligence error or omissions or that of his employees, servants or agents. Subject to these Conditions the Subcontractor shall be liable for any loss or mis-delivery of or damage to any goods occasioned during transit unless the Subcontractor shall show that the same has arisen from, and shall take reasonable care to minimise the effect of the following:- (i) Act of God (ii) Any consequence of war, invasion, act of foreign enemy, hostilities (whether war be declared or not), civil war, terrorism, rebellion, insurrection, military or usurped power or confiscation, requisition, destruction of or damage to property or under the order of any government or public or local authority. (iii) Seizure for forfeiture under legal process (iv) Error, act, omission, miss-statement or misrepresentation by TNT or other owner of the goods or by servants or agents of either of them (v) Inherent liability to wastage in bulk or weight, latent defect or inherent defect, vice or natural deterioration of the goods (vi) Insufficient or improper packaging (vii) Insufficient or improper labelling or addressing (viii) Riot, civil commotion, strike, lockout, general or partial stoppage or restraint of labour 11. Monetary Limit of Subcontractors Liability All consignments are carried subject to these Conditions and TNT‟s Terms and Conditions of Carriage as they relate to any particular service. The Subcontractor shall make himself aware of the Terms and Conditions of Carriage and in particular any monetary limits of liability. (a) Subject to the conditions set out above and condition 11 (iii) (d) the liability of the Subcontractor in respect of any one consignment shall be limited to the lower of:- (i) An amount calculated (by reference to the gross weight of the consignment and packaging as specified on the consignment note and if no weight is so specified the actual gross weight of the consignment and packaging) in accordance with the following formulae: £15 per kilo up to a maximum of 1000 kilos per consignment subject to a minimum of £10 or (ii) The cost value of the consignment to the customer or (iii) In the case of damaged goods the cost of repair of such goods (b) In the event that part only of a consignment is lost, damaged or mis-delivered, the liability of the subcontractor shall be limited to the lower of (I) the cost of repairing any damage; or (ii) Subcontractors engaged by Express on an Ad-Hoc basis, or solely by TNT Sameday/TESS require a liability cover for an amount equal to the weight in kilos of the lost, damaged or incorrectly delivered goods multiplied by £15.00 (c) Subcontractors engaged solely by TNT Express that provide a service for Linehaul, or regular core round coverage must have in place liability cover In the event that multiple consignments are damaged within a vehicle load the maximum liability per load will be £50,000. (d) The Subcontractor shall not be entitled to avail himself of the provisions of clause 10 and11 which exclude or limit his liability relating to the loss or mis-delivery of or damage to any goods caused by the Subcontractors gross negligence and/or willful misconduct or that of his employees, servants or agents including, but not limited to, leaving a vehicle unlocked whilst unattended. 12 Time Limit of Claims Claims for loss, damage or miss delivery against the Subcontractor by TNT shall be made in writing and made within 28 days of the receipt by TNT of the customers claim. 13. Termination 13.1 TNT may terminate this agreement in whole at any time by giving not less than 7 days written notice to the Subcontractor. The Subcontractor may terminate this agreement in whole by giving to TNT not less than 24 hours written notice. 13.2 In the event that the Subcontractor is in breach of any of these conditions or obligations TNT may terminate this agreement immediately. 13.3 In the event of termination under clause 13.1 or 13.2 all work in connection herewith shall be discontinued and all Consignments, equipment, documents and MDT equipment in the possession of the Subcontractor shall be immediately returned to TNT. Version 7 5 March 2010 Page Signed…………………. 1 Date……….. 13.4 TNT shall pay a fair and reasonable price for justified work and sums due from TNT to the Subcontractor at the time of termination and payment of such sum shall constitute full and final satisfaction of any claims arising out of such termination. 14. Insurance Motor vehicle insurance policies must specify a correct definition of business use EG Courier. Policies that specify light haulage only will not meet a correct definition and could render the policy void in the event of an accident involving the vehicle specified by the cover. To ensure that appropriate levels of motor insurances are in place it is strongly recommended that Subcontractors use the services on offer of the approved Insurance brokers included in the Alliance Partnership. Subcontractors electing to obtain Insurance cover outside the Alliance Partnership offer and which do not include the business use definition of Courier will be deemed to be incorrectly insured and therefore non compliant with the engagement terms. Subcontractors not able to produce an insurance policy containing the definition of Courier will be deemed to be uninsured and therefore not able to continue in providing services to TNT. The suspension of services will continue until the submission of an Insurance policy containing the correct definition is produced and verified. The Subcontractor shall have in force insurances (i) Employers Liability Insurance (where applicable) (ii) Third Party Motor Insurance. (iii) Public Liability Insurance to a minimum of £1,000,000. (iv) Goods in Transit Insurance to meet the monetary limit of Subcontractors liabilities in accordance with Clause 11. (v) In the event of the authorised use of TNT vehicles and/or trailers the Subcontractor shall comprehensively insure the same to their full market value (vi) The Subcontractor will provide copy certificates to TNT evidencing existing cover and shall notify TNT of any material change or cancellation of these insurances. 15. Confidentiality 15.1 The Subcontractor and TNT shall (save as required by law or in order to fulfil their respective obligations under the Contract) keep secret and confidential all information relating to the affairs of the other received or obtained as a result of the operation of the Contract provided that (without prejudice to the forgoing) either party shall be entitled to pass on such information to its employees or Subcontractors where reasonably necessary to enable such party properly to perform the Contract. 15.2 The Subcontractor shall not without the prior consent of TNT in writing permit photographs to be taken of any goods subject to the Contract, or vehicles bearing TNT‟s identification, nor mention TNT‟s name in connection with the Contract in any publicity material or other similar communications to third parties. 16. Standards 16.1 The Subcontractor shall throughout the duration of the Contract: (i) Employ competent workmen, provide adequate supervision and supply to its employees full and proper instructions and training as to the proper handling of the goods and as to the operation of any equipment necessary to perform the Subcontractor‟s obligations under the Contract. (ii) Provide and maintain in good working order vehicles and ancillary equipment: (a) Of adequate strength and of good construction from sound and suitable materials and (b) Suitable for the purpose for which they are to be used (iii) Observe any reasonable instructions given to it by TNT or the customer in connection with the performance of its obligations under the Contract. (iv) TNT expects Sub-Contractors and Owner Drivers to have the same standards of vetting as TNT. The engagement of services from the Subcontractor will be subject to satisfactory references and security vetting. All members of the Subcontractors‟ staff should be vetted and have references covering the last 3 years, and this should be extended for 5 years for anyone likely to be engaged in handling goods for shipment by air. Vetting documentation shall be maintained for 7 years. The vetting procedure should include the candidate providing a Subject Access Form, and anyone with a current criminal conviction for dishonesty or drug offence should not be retained for TNT business. The references should be kept on file so that TNT can audit them, and a manager of the subcontractor should note the fact that the candidate has provided a suitable Subject Access Form. 16.2 Whenever the Subcontractor is undertaking work on behalf of TNT the subcontractor shall duly observe the provisions of the relevant Works Rules, Security requirements, and Health and Safety, including the correct training in the use of manual handling equipment, pump trucks and sack barrows as specified in the policy. 16.3 On TNT being satisfied with the performance of the Subcontractor such vehicles as are approved may on agreement with the Subcontractor be prepared, and from then on bear the recognised livery of TNT or any of its associated marks or insignia throughout the period of engagement subject to the provisions of condition 8 hereof. 17. Compliance The Subcontractor shall at all times comply with all Road Traffic requirements including but not limited to Construction and Use Regulations, drivers hours, and the keeping of records, and all statutory or other regulations and shall indemnify TNT in the event of breach by the Subcontractor, his employees, servants or agents, which may render TNT open to any claims or proceedings. 18. Inspection 18.1 TNT shall have the right at any time during business hours to inspect any operation carried out by the Subcontractor pursuant to the Contract and the Subcontractor shall allow all reasonable access and assistance to the representatives of TNT to enable such representatives to carry out the inspection promptly and efficiently. 18.2 The Subcontractor shall give to TNT any information that may be reasonably required. 19. Notification of Accidents 19.1 The Subcontractor shall, if the consignment or the vehicle carrying the consignment is involved in any incident or other occurrence resulting in injury, loss or damage to persons, property or goods in the consignment give notification of such incident or occurrence to TNT as soon as practicable by telephone, and shall subsequently confirm the details in writing. 19.2 The Subcontractor shall give to TNT any information that may be reasonably required. 20. Advice and Information Whilst every reasonable effort shall be made by TNT to assist the Subcontractor regarding information relating to consignments, their contents, size or weight or other information in respect of performance of the service, TNT shall not be liable for any loss or damage sustained by the Subcontractor whatsoever or howsoever arising as a consequence of such advice, information or assistance. 21. Non assignment/transfer The Subcontractor shall not transfer the benefit or burden of this Contract whether by assignment or otherwise to any third party without the express prior written consent of TNT, which if granted shall not relieve the Subcontractor from any liability under the Contract. 22. Subcontracting A Linehaul Subcontractor may subcontract when necessary. All other Subcontractors may only subcontract when there is an emergency and TNT has given its prior written consent. The Subcontractor shall at all times remain responsible for any of its subcontractors and the Subcontractor shall remain liable to TNT in accordance with these Terms and Conditions. 23. Subcontractor Employees TNT reserves the right to object to the engagement of any employee or substitute of the Subcontractor / Owner Driver engaged in the performance of the service under the Contract and the Subcontractor on such objection shall substitute that individual or individuals as soon as possible. 24. Amendments No amendments to these Conditions shall be effective unless agreed in writing by a duly authorised representative of TNT. 25. Lien The Subcontractor shall have no lien whatsoever on any goods he is carrying on behalf of TNT. 26. Law The Contract shall be governed by English law and be subject to the jurisdiction of the English Courts. 27. Communications 27.1 The Subcontractor may be required to install Mobile Data equipment in the vehicle which will be provided by TNT. The Subcontractor is responsible for this equipment and will reimburse TNT for the cost of any repair or replacement cost if lost or stolen as stated in point 2.14 of the policy. 27.2 The Subcontractor must have a hands free voice communication equipment within the vehicle (i.e. cellular phone). This must be provided by the Subcontractor at no cost to TNT. Name of Subcontractor ……………………………………………………………… Signed By Subcontractor ……………………………………………………………… Date Signed By Subcontractor …………………………………………………….Name of TNT Depot/TESS/Sameday/ Manager ……………………………………………………………... Signed By TNT Depot/TESS/Sameday Manager ……………………………………………………………... Date Signed By TNT Depot/TESS/Sameday Manager …………………………………………………………….. Version 7 5 March 2010 Page Signed…………………. 2 Date………..