Terms & Conditions
CYCLONE COURIERS LIMITED
Trading as CYCLONE ARCHIVE
19/20 North Park
STANDARD TERMS & CONDITIONS OF TRADING
The Customer’s attention is particularly drawn to the Clauses hereof which exclude or limit the Company’s liability and those which require the Customer to notify and/or indemnify the Company in certain circumstances.
DEFINITIONS AND APPLICATION
In these conditions:-
“Application” means the Customer Application Form as completed by the Company and the Customer.
"Confidential Information" means any information (without regard to the medium on which such information may be recorded, whether written, visual, audio, graphic, computerised or otherwise) concerning or relating to the property, business and affairs of Customer.
“Next Day Delivery/Normal Pickup” means a request received by 6 p.m. during Normal Working Hours for delivery or pickup the next Normal Working Day.
“Item” means an individual file or box or pallet or disk or other container containing data records, papers, documentation and/or other materials agreed to be stored by the Company, as described on the Application and/or invoices issued by the Company to the Customer.
“Company” shall mean Cyclone CouriersLimited trading as Cyclone Archive having its registered office at 6 Upper Stephens Street, Dublin 8 or its affiliate.
“Conditions” means these Terms and Conditions together with the Application
“Rush Delivery/Pickup” means a request received up until 2:30 p.m. during Normal Working Hours for delivery/pickup within the next two Normal Working Hours, except in the case of deliveries outside Dublin, in which case, this shall refer to delivery/pickup within three Normal Working Hours. “Normal Working Day” means Monday through Friday excluding statutory holidays.
“Normal Working Hours” means 9:00 a.m. to 6:00 p.m. during Normal Working Days, unless otherwise specified in Schedule A to this Agreement.
“Services” means the agreed range of services and facilities to be provided to the Customer by the Company as detailed on the Application.
The Company shall use all reasonable efforts to respond to a Next Day or Rush Delivery/Pickup request in accordance with the defined terms set forth above. The Company will promptly advise the Customer if for any reason it does not expect to be able to meet the Customer’s requested response times. The description of the Services to be provided by Company to the Customer are set forth in detail in the Application. All other terms, conditions and warranties, whether express or implied, statutory or otherwise, are excluded save to the extent provided in the terms and conditions of this Agreement and signed on behalf of both parties by their duly authorised representatives.
2.STORAGE AND SERVICE CHARGES
All charges for storage and service under this Agreement shall be as specified in the Application, and all rates set forth in the Application are exclusive of VAT or any similar duty or tax which will be included in all relevant invoices. Charges for storage shall remain fixed for the Initial Term (as hereinafter defined) of this Agreement (excluding renewals) and charges for all other services may be changed at any time upon thirty (30) days’ written notice, unless otherwise provided in the Application. The Company reserves the right to increase its charges for storage after the expiry of the Initial Term of this Agreement by giving the Customer at least thirty (30) days’ prior written notice. The Customer has the right within twenty-eight (28) days of receiving such notice to provide the Company with thirty (30) days’ written notice of termination of this Agreement. The Company will not seek to apply any increased charges during the Customer’s thirty-day period of notice of termination of this Agreement.
The Company reserves the right to charge the Customer for waiting time at Company’s rate then prevailing if any delay is encountered or journey aborted or frustrated because Items requested for delivery or pickup cannot be delivered or collected by the Company at the appointed time due to the fault of the Customer.
If at any time containers holding the Items are damaged or deteriorate to such an extent that the Items are at risk of damage, the Company will replace the contents into one of its containers. The container and the handling fee will be charged to the Customer at Company’s rate then prevailing.
3.TERM OF AGREEMENT
The term of this Agreement shall commence on the date of Customer’s signature or, if later, the Contract Effective Date set forth on the Application. The Initial Term of this Agreement shall be as specified in the Application, or if unspecified commence on the date as aforesaid and shall continue for one year thereafter, with automatic renewals for additional successive terms of a duration equivalent to the Initial Term, unless written notice of non-renewal is delivered by either party to the other not less than sixty (60) days prior to the Term Expiry Date (being the date of expiry of the Initial Term or any subsequent term as appropriate). PROVIDED ALWAYS that such notice is to expire no earlier than the Term Expiry Date. The Conditions will continue to apply after the expiration date until all Items are removed from Company’s facility. The storage and service fees set forth in this Agreement are predicated and conditional upon the expectation that the storage volume and service activity frequency anticipated by the parties at the inception of this Agreement, will not decline materially during the term of this Agreement. Should such volume and frequency decline in such a material way the Company reserves the right upon written notice to the Customer to vary the pricing arrangements for the Services
In the event that the Customer’s storage volume is reduced by more than twenty percent (20%) over the actual average monthly storage volume, net of destructions, provided by the Company to Customer during the first six (6) months of this Agreement, or, its service volume is reduced by more than twenty percent (20%) over the actual average monthly service frequency provided by Company to Customer during the first six (6) months of this Agreement, then, in either of such events, the Company reserves the right to review and adjust pricing based on such decreased service frequency prior to the first annual anniversary of the Contract Effective Date of this Agreement as specified in the Application.
4. ACCESS; PROCEDURES; FORCE MAJEURE; CONFIDENTIALITY
Items and information contained in said Items may be delivered pursuant to direction of Customer’s agent(s) identified in the Application. Authority granted to any person on the Application shall constitute Customer’s representation that the identified persons have full authority to order any service for or removal of Customer’s Items, and to deliver and receive such Items. Such orders may be given in person, by telephone (including fax), by electronic messaging or in writing.
The Customer shall comply with the Company’s reasonable operational requirements, as modified from time to time, regarding containers, delivery volumes, security, access and similar matters. Customer acknowledges that extraordinary volume or service requests, including permanent removals, may require the Company to incur additional costs, which Customer will pay at the Company’s overtime rates, provided that the Company shall have advised the Customer of additional costs in advance.
The Company shall not be liable for delay or inability to perform caused by acts of God, governmental actions, labour unrest, riots, terrorist acts, unusual traffic delays or other causes beyond its control.
The Company may comply with any court order, warrant or similar order related to the Items, provided that the Company notifies Customer promptly upon receipt thereof, unless such notice is prohibited by law. Customer shall pay Company’s reasonable charges for such compliance.
Unless such Confidential Information was previously known to the Company free of any obligation to keep it confidential, is subsequently made public by the Customer or by a third party having a legal right to make such disclosure, or was known to the Company prior to receipt of same from the Customer, it shall be held in confidence by the Company and shall be used only for the purposes provided for in this Agreement. The Company shall use the same degree of care to safeguard the Confidential Information of Customer as it utilises to safeguard its own Confidential Information.
5.DATA PROTECTION ACT 1988
The parties acknowledge that the Company may have access to “Personal Data”, (as defined in the Data Protection
Act 1988 (as amended) (in this clause called “the Act”) in providing the Services. The Customer appoints the Company to process the Personal Data on the Customer’s behalf. The Customer warrants that the Personal Data is not Sensitive Personal Data (as defined in the Act) and that it has all necessary consents and authorisations for the Company to process Personal Data in the manner and for the purposes (which are solely determined by the Customer) in accordance with the terms of this Agreement. The Company shall act only on instructions from the Customer in respect of such Personal Data. Except as required for the performance of this obligation under the Agreement, the Company shall not retain any copy, abstract, precise or summary of any of the Personal Data.
6.LIABILITY & LIMITATION OF DAMAGES
The Company shall not be liable for any loss of or damage to Items, however caused, unless such loss or damage resulted from the failure by the Company to exercise such care in regard thereto as a reasonably careful person would exercise under like circumstances; the Company is not liable for loss or damage which could not have been avoided by the exercise of such care. If liable, the amount of the Company’s damage is limited to 2.54 Euro per Item destroyed. Items deposited by the Customer with the Company are not insured by the Company against loss or damage, however caused. The Customer may insure Items through third-party insurers for any amount, including amounts in excess of the limitation of liability. The Customer shall cause its insurers of stored materials to waive any right of subrogation against the Company. In no event shall the Company be liable for any loss of business, loss of profits, loss of contracts, loss of goodwill or any consequential or incidental damages arising as a result of damage to or loss of the Items and the related services to be provided pursuant to the terms of this Agreement.
The Company cannot reasonably assess the value to the Customer of the information comprised in the Items being stored and cannot replace that information if Items are lost or destroyed. The Company cannot reasonably obtain insurance for such eventualities so, except as otherwise expressly set forth in this Clause 7, the Company shall not be liable for any loss or damage suffered or incurred by the Customer arising out of or in connection with any loss or misdelivery of or damage to Items or other breach by Company of its obligations under this Agreement save that any exclusion or limitation shall not extend to any liability of the Company in respect of any death or personal injury caused by the negligence of the Company.
The Customer acknowledges and understands that deterioration and ageing of records and all record media occurs with time.
7.NOTICE OF CLAIMS
Claims by Customer must be presented in writing to the Company within a reasonable time, and in no event longer than seven (7) days after delivery or return of the Items to Customer or seven (7) days after Customer is notified by the Company that loss, damage or destruction to part or all of the Items has occurred.
No action may be maintained by Customer or others against the Company for loss, damage or destruction of Items, unless timely written claim has been given as provided in Paragraph (A) of this clause, and unless such action is commenced either within nine (9) months after (i) the date of delivery or return by the Company or (ii) the date Customer is notified that loss, damage or destruction to part or all of Items has occurred.
When Items have been lost, damaged or destroyed and have not been delivered or returned to Customer, notice thereof may be given by mailing a registered letter to Customer. In the event notice of loss, damage or destruction is given by registered letter, the time limitation for presentation of a claim and commencement of action or suit begins three (3) days following the date of mailing of such notice by the Company.
8.PAYMENT; LIEN FOR MONIES DUE TO THE COMPANY
Payment from the Customer to the Company for Services provided pursuant to these conditions shall be made by the Customer within 30 (thirty) days of the issue of an invoice for those Services such payment to made in Euro failing which interest will become due at a rate of 1% per completed calendar month from the date of the invoice on the outstanding sum owed to the Company and a calendar month shall be completed on the date of the month or months following the invoice date that coincide with the day of the month on which the invoice was issued. If a Customer is consistently delinquent (defined as being late in the payment of any three (3) or more invoices in a 12month period) and upon the expiration or termination of this Agreement, the Company may require payment by certified cheque or in other immediately available funds prior to delivery of Items. Subject to the provisions of clause 17 hereof the Company shall have a lien on all Items of Customer for all money due to Company for storage, service fees and other charges or expenses in connection with such Items and shall also have a general lien on all Items for any money due to Company from the Customer or the owners of such Items upon any account whatsoever. Nothing herein shall preclude the Company from pursuing other remedies authorised by statute or otherwise. All charges for services rendered or to be rendered and storage fees through permanent removal, including account closure fees, shall be paid by Customer prior to delivery of Customer’s Items at expiration of the term of this Agreement.
9.DESTRUCTION OF DATA
Customer releases the Company from all liability by reason of the destruction of Items pursuant to Customer’s written direction.
Any notice made pursuant to this Agreement may be given or made in writing at the addresses set out on the front side hereof until written notice of a change of address has been received. Notices to Company shall be sent to the attention of its Director.
The Customer warrants that it is the owner or legal custodian of the Items and has full authority to store said Items and direct their disposition in accordance with the terms of this Agreement.
The Customer agrees to fully indemnify and hold harmless the Company and its employees and agents for any liability, cost or expense (including litigation or debt recovery expenses and reasonable legal fees) arising out of (i) the Company’s possession of Customer’s Items, (ii)Customer’s breach of any terms or provisions or warranties contained in this Agreement, (iii)the Company’s relations with Customer or third parties designated by Customer (such as, for example, if the Customer designates that its solicitors or auditors shall be granted access to Customer’s Items in the possession of Company, or, if the Customer instructs the Company to deliver Items to Customer’s premises and to leave it with security personnel who may be contractors to Customer, and similar such circumstances) pursuant to this Agreement, or (iv) if the Customer is deemed to be a “public body”, as defined in the Freedom of Information Act, 1997 (“FOI Act”), then the foregoing indemnification by Customer shall also apply to any claim or action brought against Company for any breach of the FOI Act, unless any of the foregoing are caused solely by the negligence or wilful misconduct of the Company.
13.RESTRICTIONS ON ITEMS; CUSTOMER PREMISES
The Customer shall not, at any time, store with the Company Items considered to be highly flammable, explosive, toxic, or otherwise dangerous or unsafe to store or handle any illegal substance or any material which is regulated under any national or local law or regulation relating to the environment or hazardous materials. Customer shall not store cash, negotiable instruments, jewellery, cheque stock, ticket stock or other items which have intrinsic market value. All Customer’s premises where the Company’s employees perform services or make deliveries hereunder shall be free of all hazardous substances and any other hazardous or dangerous conditions.
15.MODIFICATION - ASSIGNMENT
This Agreement binds the heirs, executors, successors and assigns of the respective parties and cannot be changed orally. This Agreement may not be assigned by Customer (other than to an affiliate which shall assume the obligations of its assignor by written instrument) without the written consent of the Company, which shall not be unreasonably withheld or delayed.
If the Customer is being charged a technology service fee hereunder in order to have limited access, upon the terms described in a customer user manual or in training materials provided by the Company to Customer, to the stated inventory management software (“Software”) as detailed in the Application used by the Company to provide services to Customer pursuant to the terms of this Agreement, then, in such event, the Company hereby grants a limited, nonexclusive license to Customer to use the Software for this purpose only during the term of this Agreement.
The occurrence of any one or more of the following events shall constitute a default (an “Event of Default”)
$1(a) Failure by the Customer to pay any sum due hereunder within 30 days of when due;
$1(b) Breach by the Customer of any term of this Agreement;
$1(c) The Customer becoming insolvent;
Upon the occurrence of any of the Events of Default the Company shall have the option at its sole discretion to exercise any one or more of the following remedies:
$1(a) Demand in writing that the Customer collect all or any Items stored with the Company
$1(b) Deliver the stored Items to the address of the Customer specified on the Application
$1(c) Upon thirty days written notice to the Customer the Company may destroy the Items stored on behalf of the Customer
$1(d) Terminate this agreement whereupon all sums due to the Company from the Customer shall become debts due and owing and the Company shall be entitled to recover damages for any losses incurred as a result of such termination.
In the event that any additional Customer locations are added to this Agreement, then the term of this Agreement for such additional locations shall be coterminous with the term initially established herein. In addition, unless otherwise expressly agreed to in writing by the Company, the anniversary date for pricing increases for all of Customer’s locations serviced under this Agreement shall be the anniversary date initially established in this Agreement.
This Agreement, together with the Application, represents the entire agreement between the Company and Customer and may not be amended or modified without an Amendment to this Agreement signed by both the Company and the Customer. Any alternative or additional terms and conditions proposed by the Customer not expressly set forth in an Amendment to this Agreement signed by the Company are hereby rejected by the Company.
This Agreement shall be governed and construed in accordance with the laws of Ireland