Last updated: 01-01-2023
AS OF 01/01/2023
Agreement for Services
Please find below details of the terms and conditions under which Derry Bros Customs Clearance Ltd (“DBCC”) will provide customs declaration services of the kind detailed at Annex B (the “Services”) to the Client (the “Agreement”). The Annexes referred to by this Agreement form part of this Agreement and shall have effect as if set out in the body of this Agreement.
The Services to be Provided by DBCC
DBCC will provide the Services to the Client with reasonable skill and care and in accordance with generally accepted standards of the Customs brokerage industry. Under this Agreement, DBCC will act as the Client’s agent in providing the Services, on a direct basis or indirect basis, in order to facilitate the Client’s declarations for export.
DBCC shall take all reasonable steps to provide the Services in accordance with the instructions of the Client, save that should DBCC reasonably consider that it is in the interest of the Client to depart from those instructions, DBCC shall have authority to do so and DBCC will be fully indemnified by the Client for so doing.
This performance of the Services will commence on (the “Commencement Date”).
If additional or separate services are performed further to the above, these will only be provided by DBCC at the specific and separate instruction of the Client.
Basis of Contract
As and when the Client requests Services, it will be deemed to have placed an order subject to the terms and conditions of this Agreement (the “Order”). The Order constitutes an offer by the Client to purchase the Services detailed in the Order in accordance with this Agreement. The Order shall only be deemed to be accepted when DBCC issues written acceptance of the Order or takes steps to perform the Services in respect of the Order.
Once signed by the Client, this Agreement applies to the performance of all the Services by DBCC to the exclusion of any other terms and conditions that the Client may seek to impose or incorporate into this Agreement whether at the time of placing Orders or otherwise, or which are implied by law, trade custom, practice or course of dealing.
Annex A sets out the conditions for performance of the Services. In relation to each trade flow, it details the documentation to be provided by the Client, the timing of the provision of that information and the subsequent requirements for the declarations to be prepared by DBCC on the Client’s behalf.
Where appropriate, the Client will provide DBCC with all necessary written Standing Instructions and comply with the Data Requirements set out in Annex B in relation to the preparation of its export and import declarations in order for DBCC to provide the Services. These should include details concerning the customs classification, origin and value of the goods to which those declarations relate and will automatically apply to all Orders unless at the time of placing the Order the Client expressly states to the contrary.
In particular, the instruction should also supply details of any specific customs formalities that apply and any additional information, (such as box 44 data) that should be declared to HM Revenue & Customs or any similar or equivalent customs authority in any other relevant jurisdiction.
Any errors or omissions in the Standing Instructions/Data requirements should be reported in writing to DBCC by the Client as soon as possible on discovery of the same. DBCC shall not be responsible for any errors or omissions in the Standing Instructions/Data requirements unless the same are reported on their discovery by the Client.
The Client will pay DBCC a fixed cost per export and import, as detailed in Annex B to this Agreement (the “Fees”).
The Fees are exclusive of VAT.
Where any taxable supply for VAT purposes is made under this Agreement by DBCC to the Client, the Client shall, on receipt of a valid VAT invoice from DBCC, pay to DBCC 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.
Payment terms will be 30 days after the date the invoice has been sent.
Further payment terms are detailed in DBCC’s general terms provided in Annex C.
Liability to Additional Costs
In addition to the Fees, the Client will be liable for, and shall reimburse DBCC for any and all additional third-party fees, costs and expenses, including port fees and demurrage costs, SPS controls, penalties, interest and fines and any other payment associated with or incurred by DBCC in connection with the performance of the Services. DBCC will charge an administrative fee of £20.00 per invoice raised for reimbursement of these costs, effective from the date of commencement of these terms.
In consideration of us giving an undertaking in respect of a Community Transit operation (including Union Transit and Common Transit) upon instructions from you, you hereby indemnify us in respect of all and every liability which may be imposed upon us in respect of the said transit operation, and you undertake to make payment to us forthwith and reimburse us in respect of any expenses incurred by us by way of duties, taxes, levies and any other charges whatsoever for which we may become liable as a result of giving such an undertaking on your behalf..
DBCC reserves the right, in its absolute discretion, to require all such third-party fees costs and expenses to be paid in advance of the Services being performed and/or prior to the release of any shipment imported by the Client. If the Client fails to advance any funds as requested, DBCC shall have no obligation with respect to rendering the Services for which the advance funds have been requested.
Further payment terms are detailed in DBCC’s general terms provided in Annex C.
Duration and Termination
This Agreement shall commence on the Commencement Date and shall continue, unless terminated earlier in accordance with its terms, until either party gives to the other party 3 months’ written notice to terminate, expiring on or after the first anniversary of the Commencement Date.
In addition to any other termination rights set out in this Agreement (including Annex C), either party may terminate this Agreement by written notice to the other at any time if:
• The other party commits a material breach of this Agreement and, in the case of a material breach capable of remedy, it fails to remedy the breach within 30 days of being required to do so in writing.
• The other party becomes insolvent, or has a liquidator, receiver, manager or administrative receiver appointed.
DBCC may terminate this Agreement or suspend the performance of the Services by written notice to the Client at any time if the Client fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 5 days after being notified in writing to make such payment.
On termination or expiry of this Agreement the Client shall immediately pay to DBCC all of DBCC’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, DBCC shall submit an invoice, which shall be payable by the Client immediately on receipt.
Termination or expiry of this Agreement 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.
Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.
Each party shall keep secret and confidential all confidential information belonging to the other party and shall not use nor disclose the same save for the purposes of the proper performance of this Agreement, or with the prior written consent of the other party, or as required by law. DBCC further agrees to keep secret and confidential all confidential information belonging to the Client’s customers and shall not use nor disclose the same save for the purposes of the proper performance of this agreement or with the prior written consent of the Client and its customers.
Confidential information for these purposes is defined as meaning any confidential information concerning the business, affairs, customers, clients or suppliers of the other party and includes all information identified confidential by the Client relating to the Client and/or its customers, which is disclosed in oral, written, graphic or machine recognisable format to DBCC.
Each party will limit the dissemination of confidential information to only those employees who need to know it for the purposes of this Agreement.
The Client shall not, during this Agreement and for a period of 12 months after its termination or expiry (except with the prior written consent of DBCC) directly or indirectly solicit or entice away (or attempt to solicit or entice away) from the employment of DBCC, any employee of DBCC who assisted in any way with performance of the Services to the Client. The Client shall not be in breach of this requirement as a result of running a national advertising campaign not specifically targeted at any of the staff of DBCC.
If the Client commits any breach of the commitment above, it will, without prejudice to any other rights or remedies of DBCC, on demand, pay to DBCC a sum equal to one year's basic salary plus the recruitment costs incurred by DBCC in replacing such person.
The Client warrants that:
• it is the importer, exporter, logistics provider, Customs broker or owner of the goods for which it has retained DBCC;
• it has full power and authority to retain, appoint and instruct DBCC to provide the Services for the goods in question.
If you are a new Client then to secure our services, as well as providing the countersignature below, please also do the following:-
• complete the standing authorisation (ANNEX D) authorising us to complete customs entries on your behalf (this is a legal requirement without which we are unable to act on your behalf);
• complete the account application form (ANNEX E) and return to us at email@example.com.
Schedule of EX-T Services
All communication will be by email to a dedicated email address provided by DBCC. Declaration Data
The following key information will be required for each shipment:
• The name, address and EORI number of the:
• The exporter (consignor).
• The customer (consignee).
• Intermediary that submits the declaration, i.e. Derry Bros Customs Clearance Ltd.
• Details concerning the transport of the goods:
• Mode of transport and, in particular, the vehicle or trailer registration number used to cross the UK/EU frontier.
• Nationality of transport.
• The name, address and EORI number of the transporter.
• Information in relation to the goods:
• Value and currency.
• Customs classification code (ten-digit number based on UK Tariff).
• Country of origin.
The Client will provide copies of the relevant CMR, invoice and packing list in advance of each shipment.
DBCC will require this data in order to be able to report all of the Client’s shipments. The Client acknowledges that it must provide the necessary information in a timely manner to ensure that declarations are made on time.
The Client acknowledges that it must provide details of any controlled goods that, for example, are subject to export control measures and that might require export licences, health certificates, etc. The Client is at all times responsible for securing the necessary licences and permits for such goods.
HM Revenue & Customs and Border Force – Inadequate Preparation
Although the departure of the United Kingdom from the customs union of the European Union has been a known factor, the ongoing delays in the process have led to poor planning within HM Revenue & Customs, the Border Force and similar/equivalent customs authorities in certain other relevant jurisdictions. In particular, the infrastructure to allow export control are incomplete. The Client recognises that these official failures may impact on DBCC’s ability to facilitate the Client’s exports and perform the Services. DBCC shall not be deemed to be in breach of this Agreement if its failure to perform is directly or indirectly due to the acts or omissions of HM Revenue & Customs or the Border
Force or indeed the acts or omissions of any similar or equivalent customs authority in any other relevant jurisdiction.
DBCC is able to assist with the following:
• Work with the Client to ensure that it is able to easily report the information necessary for DBCC to make the Client’s declarations under Export. In particular, provide a pre-formatted Excel Shipment Report that includes most of the information that will be required to report each shipment. Generally, for those organisations that currently prepare Intrastat reports, DBCC can enhance this information in order to meet the export reporting requirement. It should be noted that the Client is required to provide the data that they use, e.g. tariff classifications.
• Audit the Client’s exports on an ongoing basis to ensure that the Client is fully compliant, e.g. that the customs classifications are correct, the value for duty is right and that other data elements are appropriate.
DBCC is able to assist with the following:
• Working with the Client to ensure that it is able to easily report the information necessary for DBCC to make the Client’s declarations under transit.
In addition to the above, where necessary and at the Client’s separate instruction DBCC can:
• Manage any UK (including Northern Ireland) and ROI imports.
• In the event that duty is payable on the Client’s goods, DBCC can work with the Client to obtain a duty deferment account. Alternatively, for a fee DBCC may allow the Client to make use of its deferment account.
• Provide customs duty consulting services in order to correctly determine the:
• Tariff classification of the Client’s goods.
• Origin of the Client’s goods, in particular in the event of preferential trade under a free trade agreement.
• Correct customs duty and VAT values for the Client’s goods.
• Suitability of duty reliefs, tariff suspensions, etc.
• Need for import/export licensing.
DBCC’s fees are based on a straightforward model:
• It will charge for the declarations that it submits on the Client’s behalf.
• The fees will be fixed but will depend on the value of each consignment and the number of different types of goods the Client ships in each consignment.
• These Fees shall remain fixed until the first anniversary of this Agreement following which DBCC reserves the right to change the Fees as it considers appropriate from time to time.
Specifically in relation to consulting services:
• DBCC charges for these Services on an hourly basis. The rates charged are £250.00 per hour.
• Client will be liable for the travel and, if necessary, the accommodation costs that DBCC incurs in order to provide these Services.
• Travel by car will be charged at a rate of £0.50 per mile.
DBCC operates with associated and/or subsidiary companies. Any debt due to DBCC and/or any of its associated or subsidiary businesses may for the purposes of debt recovery be treated as a single debt. Similarly, DBCC will have the right of set-off any monies owed to the Client by DBCC or its associated or subsidiary companies against the debts due to DBCC
Annex C General Terms
1.1 These general terms (the “Terms”) apply to all Services provided by DBCC to the Client unless otherwise explicitly agreed in writing by DBCC.
2. Services Provided by DBCC
2.1 The full suite of Services which the Client shall have the right to request from DBCC (the “Services”) are listed separately in Annex B.
2.2 DBCC shall at all times provide the Services in a timely and professional manner and in compliance with all applicable laws and regulations and the terms of the Agreement.
2.3 DBCC shall have the right, whilst carrying out a Service, to perform such actions and work deemed necessary by DBCC in order to fulfil its commitment in respect of any Order and charge the Client for any related Fees, costs and expenses incurred in doing so. This will be in addition to the Fee for that Service set out in Annex B.
3. DBCC’s Obligations
3.1 The Client agrees that it has an obligation to provide the information required by DBCC in order for DBCC to perform the Services. The Client will provide this information in a timely manner and DBCC will rely on it as accurate and correct in all respects in the course of providing the Services.
3.2 The Client is responsible for the accuracy and timeliness of all information provided to DBCC, even when the information originates from a third party. The timing of the provision of the required data will be agreed between the parties in writing absent which, it will at all times be provided by the Client promptly.
3.3 The Client is liable for all taxes, interest, penalties and other fees as may be assessed by the authorities in the United Kingdom for non-compliance, omissions, errors and audits.
3.4 DBCC shall not act as a record keeping agent for the Client. DBCC will only keep such records that DBCC is required to maintain by law pertaining to the business of DBCC.
3.5 The Client shall promptly review the results of the Services performed by DBCC and without undue delay (no more than twelve-months after performance of the relevant Order), inform DBCC in writing of any claim it may have in relation to that Order following which time the Client will be deemed to have accepted DBCC’s performance of the Services in full.
3.6 The Client shall immediately inform DBCC of any reduction of the Client’s credit rating during the term of this Agreement. In such event, Client shall, at the request of DBCC, offer adequate securities for its commitments under this Agreement. If no such securities are offered or those offered are deemed inadequate by DBCC, DBCC shall have the right to suspend or terminate further performance of Services until adequate securities have been offered or immediately terminate this Agreement without incurring any liability of any kind to the Client for doing so.
4. EX-T Fees and Settlement
3.1 DBCC shall upon late payment by client be entitled to interest on the sum overdue from the due date until full payment has been made. The interest rate shall be calculated in accordance with the Late Payment of Commercial Debt (Interest) Act 1998.
3.2 DBCC shall have the right to suspend further provision of the Services if the Client is in default of payment and to request security for payment of further provision of the Services.
3.3 In the course of its work, if DBCC pays taxes and/or any other third-party fees, costs or expenses on behalf of the Client, the Client shall pay such amount to DBCC prior to DBCC being required to pay such charges.
5.1 DBCC will use reasonable endeavors to meet any performance dates specified in an Order, but any such dates shall be estimates only and time shall not be of the essence for performance of an Order.
5.2 If DBCC's performance of any of its obligations under the Agreement is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (“Client Default”):
a. without limiting or affecting any other right or remedy available to it, DBCC shall have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations in each case to the extent the Client Default prevents or delays DBCC’s performance of any of its obligations;
b. DBCC shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from DBCC’s failure or delay to perform any of its obligations; and
c. the Client shall reimburse DBCC on written demand for any costs or losses sustained or incurred by DBCC arising directly or indirectly from the Client Default to a sum of £80.00 per billable hour, this will be charged in fifteen minute increments.
6. Limitation of Liability
6.1 Except as specifically set forth in these Terms, DBCC makes no express or implied warranties in connection with its provision of the Services or those of any third party.
6.2 References to liability in this clause 6 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
6.3 Nothing in this clause 6 shall limit the Client’s payment obligations under the Agreement.
6.4 Nothing in the Agreement limits any liability which cannot legally be limited, including but not limited to liability for:
a. death or personal injury caused by negligence;
b. fraud or fraudulent misrepresentation; and
c. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
6.5 Subject to clause 6.4, DBCC’s total liability to the Client for all loss or damage shall not exceed the Fees payable for the Services which are the subject of the claim.
6.6 In no event shall DBCC be liable or responsible for:
a. consequential, indirect or incidental loss;
b. loss of profit;
c. loss of sales, business or goods;
d. loss of anticipated savings;
e. loss of or damage to goodwill or reputation;
f. duties, fines, penalties, interest or other levies imposed by Customs or other Government Departments with respect to the goods imported or to be imported, or exported or to be exported, by the Client;
g. action taken or fines or penalties assessed by any UK Governmental agency because of the failure by the Client to comply with the law or the requirements or regulations of any UK Governmental agency or with a notification issued to the Client by any such agency.
6.7 DBCC shall under no circumstances be held liable in relation to a claim made by the Client unless the claim is made in writing within twelve-months after the Service to which the claim relates to has been carried out by DBCC.
6.8 DBCC and client acknowledge that the limitations of liability set out herein reflect an informed, voluntary allocation between DBCC and the Client of the risks (known or unknown) that may exist in connection with DBCC’s provision of the Services.
7.1 The Client agrees to indemnify upon demand and hold DBCC harmless against any and all actions, causes of action, liability, loss, damages, costs (including work), claims, penalties, fines and/or expenses or demands of any nature whatsoever, including but not limited to reasonable legal and other professional fees, which DBCC may incur, suffer or be required to pay arising from:
a. inaccuracies, mistakes or omissions in the information and documentation provided to DBCC by the Client;
b. the Client’s, its agent’s or representative’s conduct which violates any applicable laws or regulations;
c. any claim made against DBCC by a third party arising out of or in connection with the provision of the Services, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of this Agreement by the Client, its employees, agents or subcontractors;
d. any claim made against DBCC by a third party for death, personal injury or damage to property arising out of or in connection with the goods in respect of which the Services are provided.
8. Force Majeure
8.1 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.
9. Impact of UK Leaving the Customs Union of the EU
9.1 The Client accepts that DBCC shall not be held liable for loss, damage, costs, delay or monetary losses of any type in relation to any non-performance on its behalf caused by the UK leaving the customs union of the EU that is beyond DBCC’s reasonable control, without it affecting the Client’s payment obligations towards DBCC.
10. Modification of Terms
10.1 These Terms may be amended by DBCC at any time following the first anniversary of the Commencement Date.
10.2 Such amendments shall be notified to the Client not later than three months prior to their entry into force.
11. Dispute Resolution
11.1 Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, shall in the first instance be solved by discussions held in good faith and in line with the overall good spirit of this Agreement between the parties.
11.2 Where the dispute cannot be settled within two weeks by discussions held between the parties, it shall be solved by mediation in accordance with the Mediation Service of the Law Society of Northern Ireland.
11.3 Where the dispute cannot be settled by either discussions between the parties or mediation, either party may instigate such proceedings as it considers necessary to resolve the matter.
12. Miscellaneous Matters
12.1 The Agreement 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.
12.2 Each party acknowledges that in entering into the Agreement 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 Agreement.
12.3 Nothing in this clause shall limit or exclude any liability for fraud.
12.4 A waiver of any right or remedy under the Agreement 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 Agreement 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 Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
12.5 If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.
12.6 Unless it expressly states otherwise, the Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.
12.7 The rights of the parties to rescind or vary the Agreement are not subject to the consent of any other person.
13. Governing law and Jurisdiction
13.1 The Agreement, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of Northern Ireland.
13.2 Each party irrevocably agrees that the courts of Northern Ireland shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Agreement or its subject matter or formation.