Last Updated: 17th June 2024

AS OF 17/06/24

1. DEFINITIONS AND INTERPRETATION
1.1 In these Conditions, the following definitions apply
“Affiliate”: any entity that directly or indirectly Controls, is Controlled by, or is under common Control with, another entity
“Applicable Law”: the laws of Northern Ireland, the European Union and any other laws or regulations, regulatory policies, statutes, guidelines or industry codes which apply to the provision of the Services from time to time;
“Bribery Laws”: the Bribery Act 2010 (BA 2010) and associated guidance published by the Secretary of State for Justice under the Bribery Act 2010 and all other applicable United Kingdom laws, legislation, statutory instruments and regulations in relation to bribery or corruption and any similar or equivalent laws in any other relevant jurisdiction;
“Business Day”: a day (other than a Saturday, Sunday or a public holiday) when banks in Northern Ireland are open for business;
“Conditions”: means these terms and conditions as amended from time to time;
“Confidential Information”: means any commercial, financial or technical information, information relating to the Services, plans, know-how or trade secrets which is obviously confidential in nature or has been identified as confidential, or which is developed by a party in performing its obligations under, or otherwise pursuant to the Contract;
“Contract”: the contract between Derry Bros and the Customer for the supply of Services in accordance with these Conditions;
“Customer”: the person firm or company who purchases the Services form Derry Bros;
“Customer Materials”: means any material owned by the Customer (and any modifications to that material) which is necessarily required by Derry Bros in order for it to perform the Services;
“Derry Bros”: means Derry Bros Customs Clearance Ltd., a company incorporated in Northern Ireland under number NI668767 whose registered office is at 130 Cloveneden Road, Loughgall, Armagh, Northern Ireland, BT61 8LE ;
“Export Declaration”: means a formal document or statement submitted to the customs authorities of a country by an exporter or their authorised representative which provides detailed information about the goods being shipped out of the country and is a mandatory requirement in most jurisdictions for customs clearance and compliance with Applicable Law;
“Force Majeure”: means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under the Contract including an act of God, fire, flood, lightning, earthquake or other natural disaster, war, riot or civil unrest, interruption or failure of supplies of power, fuel, water, transport, equipment or telecommunications service, or material required for performance of the Contract, strike, lockout or boycott or other industrial action including those involving Berry Bros or its suppliers’ workforce, but excluding the Customer’s inability to pay or circumstances resulting in the Customer’s inability to pay;
“Import Declaration”: means a formal statement or document submitted to the customs authorities of a country by an importer or their authorised representative which provides comprehensive information about the goods being imported into a country which is used by customs officials to assess and regulate the importation of goods, ensure compliance with Applicable Laws and determine the appropriate duties and taxes to be levied;
“Intellectual Property Rights” all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights and all similar or equivalent rights or forms of protection in any part of the world;
“Order” the Customers order for the Services howsoever made;
“Safety and Security Declaration” means a formal statement or document submitted to customs authorities providing information about the safety and security aspects of a goods shipment and is a mandatory requirement in many countries as part of international trade regulations to enhance security measures and prevent the movement of goods that may pose a threat to safety or security;
“Standing Authority Form” the Derry Bros form which must be completed by the Customer before any Services can be provided and which authorises Derry Bros to act in the capacity of either a direct representative or an indirect representative of the Customer in accordance with Articles 18 and 19 of Regulation (EU) No. 952/2013;
“Services” the services to be provided by Derry Bros under the Contract pursuant to the Condition as set out in the Order;
“Transit” means the procedure regulations and processes that allow the movement of goods from one point to another through a country or a customs territory, while minimizing the customs duties and other restrictions, the primary purpose of which is to facilitate the smooth flow of goods across borders, especially when those goods need to traverse multiple countries before reaching their final destination;
“VAT” means value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the sale of the Services.
1.2 A reference to:
1.2.1 the Conditions includes any schedules, appendices and annexes (if any);
1.2.2 a ‘party’ includes that party’s personal representatives, successors and permitted assigns;
1.2.3 a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;
1.2.4 a gender includes each other gender;
1.2.5 words in the singular include the plural and vice versa;
1.2.6 any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
1.2.7 any clause, schedule or other headings in these Conditions are included for convenience only and shall have no effect on the interpretation of these Conditions;
1.2.8 a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time except to the extent that any such amendment, extension or re-enactment would increase or alter the liability of a party under these Conditions;
1.2.9 Applicable Law or legislation are to that Applicable Law or legislation as amended, extended re-enacted or consolidated from time to time.

2. BASIS OF CONTRACT AND APPLICATION OF THE CONDITIONS
2.1 These Conditions apply to and form part of the Contract between Derry Bros and the Customer to the exclusion of any other terms of purchase or supply or that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing, unless or to the extent that any other terms are agreed in writing by Derry Bros.
2.2 No terms or conditions endorsed on, delivered with, or contained in the Customer’s purchase conditions, order, confirmation of order, specification or other document shall form part of the Contract except to the extent that Derry Bros otherwise agrees in writing.
2.3 No variation of these Conditions or to an Order or to the Contract, shall be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of each of the Customer and Derry Bros respectively.
2.4 Each Order by a Customer constitutes an offer by the Customer to purchase the Services subject to the Contract in accordance with these Conditions.
2.5 Derry Bros may accept or reject an Order at its discretion. An Order shall not be accepted, and no binding obligation to supply any Services shall arise, until the earlier of:
2.5.1 Derry Bros written acceptance of an Order (whether or not such written acceptance seeks to impose new conditions); and
2.5.2 Derry Bros delivering or performing the Services or notifying the Customer that they are ready to be delivered or performed (as the case may be) or doing any act consistent with fulfilling the Order,
at which point and on which date the Contract shall come into existence.
2.6 Rejection by Derry Bros of an Order, including any communication that may accompany such rejection, shall not constitute a counter-offer capable of acceptance by the Customer.
2.7 Derry Bros may issue quotations to the Customer from time to time. Quotations are invitations to treat only. They are not an offer to supply Services and are incapable of being accepted by the Customer.
2.8 Marketing and other promotional material relating to the Services are illustrative only and do not form part of the Contract.

3. PRICE
3.1 The price for the Services shall be calculated in accordance with Derry Bros scale of charges in force from time to time (the Price).
3.2 The Price is exclusive of VAT (or equivalent sales tax) and the Customer shall pay any applicable VAT (or equivalent sales tax) to Derry Bros on receipt of a valid VAT invoice.
3.3 Derry Bros shall be entitled to be reimbursed by the Customer for all out-of-pocket expenses (including travelling but not parking fines or road traffic offence fines) incurred in the proper provision of the Services, subject to the production of such receipts or other evidence as the Customer may reasonably require and will include any such expenses on invoices rendered.
3.4 Derry Bros may increase the Prices at any time by giving the Customer not less than 15 Business Days’ notice in writing provided that the increase does not exceed twenty-five (25%) of the Prices in effect immediately prior to the increase.
3.5 Notwithstanding clause 3.3, Derry Bros may increase the Prices with immediate effect by written notice to the Customer where there is an increase in the direct cost to Derry Bros of supplying the relevant Services which exceeds five percent (5%)and which is due to any factor beyond the control of Derry Bros.
3.6 If in the course of supplying the Services, Derry Bros is required to pay taxes and/or any other third-party fees, costs or expenses on behalf of the Customer, the Customer agrees it shall pay such amount to Derry Bros in advance to it being required to make such payment.
3.7 Derry Bros may charge an additional currency conversion charge of £50 where payment is received in a currency that differs to the currency invoiced.

4. PAYMENT
4.1 Derry Bros shall invoice the Customer for the Services, partially or in full, at any time following acceptance of an Order.
4.2 Subject to any agreement to the contrary, the Customer shall pay all invoices:
4.2.1 in full in cleared funds without deduction or set-off on the date of receipt of each invoice; and
4.2.2 to the bank account nominated by Derry Bros.
4.3 Time of payment is of the essence. Where sums due under these Conditions are not paid in full by the due date:-
4.3.1 Derry Bros may, without limiting its other rights, charge interest on such sums at four percent (4%) a year above the base rate of Bank of Ireland from time to time in force or in accordance with the Late Payment of Commercial Debt (Interest) Act 1998, and
4.3.2 Interest shall accrue on a daily basis and apply from the due date for payment until actual payment in full, whether before or after judgment.
4.3.3 Derry Bros reserve the right to be paid on an indemnity basis any costs it incurs in recovering any money due under the Contract (and the costs of recovering such costs) including administrative costs and any costs incurred with lawyers or debt collection agencies. Administrative costs may include the cost of employing the staff concerned and the overheads attributable to them for the time spent. In calculating administrative costs Derry Bros will give credit for any compensation due under the Late Payment of Commercial Debts (Interest) Act 1998. If for any reason the Late Payment of Commercial Debts (Interest) Act 1998 does not apply interest shall be payable on overdue amounts at 8% over the Bank of Ireland base rate from time to time
4.4 The Customer shall raise any query on an invoice within five (5) Business Days of the receipt of the invoice. After the expiry of this period the Customer shall not be entitled to raise any query of a particular invoice and it is mutually accepted by the Customer and Derry Bros that the invoice is agreed.
4.5 If there is any disagreement between the Customer and Derry Bros as to the date of the receipt by the Customer of the invoice, the receipt shall in all cases be considered to be received by the Customer on the date of sending marked on the face of the invoice.
4.6 Where appropriate Derry Bros may issue a monthly statement to Customers and such statement must be reconciled by the Customer on a monthly basis with any requests for copy invoices to be made to Derry Bros within five (5) Business Days of receipt of the monthly statement.

5. CREDIT CHECKS, ACCOUNT OPENING ETC.
5.1 At the request of Derry Bros, the Customer shall offer adequate securities for its commitments connected or related to the provision of Services by Derry Bros and if no such securities are offered or those offered are deemed inadequate by Derry Bros, it shall have the right to suspend or terminate any, or any further performance of Services or immediately terminate the Contract without incurring any liability of any kind to the Customer for doing so.
5.2 Derry Bros may undertake credit checks, set and vary credit limits and payment terms from time to time and withhold all further supplies of Services without liability to the Customer if the Customer exceeds such credit limit or payment terms.
5.3 Any Customer wishing to enter into a credit agreement or cash account agreement with the Supplier is required to complete and sign the Supplier’s credit application form and/or cash account opening form.
5.4 Any individual signing the credit application form /cash account agreement on behalf of a Customer which is an incorporated entity, personally warrants they have authority to do so and that the Customer agrees to be bound by the terms and conditions of the credit application/cash account agreement.
5.5 At its discretion Derry Bros may require the Customer to provide a personal guarantee and indemnity from a guarantor (Guarantor) which:
5.5.1 irrevocably guarantees to Derry Bros that the Guarantor will duly observe and perform all of the obligations of the Customer contained in the Contract; and
5.5.2 further covenants with Derry Bros that if the Customer shall:
5.5.2.1 fail to pay to Derry Bros any sum or sums due under the Contract; or
5.5.2.2 fail to observe or perform any of its obligations under the Contract (and whether or not any action has been taken to enforce the obligations of the Customer or any judgement has been obtained against the Customer, or there have been any dealings or transactions between the Customer and Derry Bros and whether or not the Customer has been dissolved or liquidated or there has been a change in the control or ownership of the Customer or any other circumstances have occurred which might otherwise constitute a legal or equitable discharge of a guarantor),
and the Guarantor shall pay on demand to Derry Bros all such amounts as have not been paid but should have been paid by the Customer or which Derry Bros could have claimed against the Customer in consequence of any such non-observance or non-performance by the Customer, and all sums which Derry Bros has lost or will lose by reason of such non- observance or non-performance by the Customer (including, but not limited to the sums Derry Bros would have received from the Customer but did not or will not receive from the Customer because the Contract has been terminated).
5.6 Derry Bros utilises the ‘Autocharge’ plan (Autocharge), which is a secure card storage solution that enables it to store and reuse Customer card details for a fixed or variable amount that does not occur on a scheduled or regularly occurring transaction date, known as Unscheduled Credential on File (UCOF).
5.7 The Customer as a cardholder provides consent via the initial Cardholder Initiated Transaction (CIT) for Derry Bros to initiate one or more future transactions which are not initiated by the cardholder, known as Merchant Initiated Transactions (MIT).
5.8 The Customer’s card data is stored securely by Derry Bros merchant services provider on their servers. This enables Derry Bros to offer the Customer a more seamless and secure service and means the Derry Bros staff don’t have visibility of the Customer’s card numbers.
5.9 When instructed to provide Services by the Customer, Derry Bros may use Autocharge to apply a new charge to the Customer’s card and this will be immediately communicated to the Customer via email and SMS each time a charge is made.
5.10 Derry Bros will retain a record of the Customer’s agreement for the duration of this plan so that it can be provided to the issuer upon request and will notify the Customer in the event of any change to this agreement. If the Customer cancels the Autocharge plan, both parties will be notified by Email and/or SMS.
5.11 For CIT’s:-
5.11.1 Derry Bros will send the Customer a payment request message (via email and/or SMS) for the required amount. The first payment can only be made once the Customer checks the Autocharge box.
5.11.2 Upon completion of the first Autocharge payment the Customer will receive a receipt confirming the amount which has been charged, the purpose of the payment and mandatory reference data.
5.11.3 The Autocharge receipt contains the link to a page which enables the Customer to update or revoke their ongoing authority for future payments. The Customer can withdraw their authority at any time using this link, which will send a notification email to the Merchant to let them know that the Customer has withdrawn consent and an email to the Customer confirming its withdrawal.
5.12 For MIT’s:-
5.12.1 When the Customer contacts Derry Bros to request additional Services, it will access the Customer’s Autocharge record and apply a new charge to their card.
5.12.2 The Customer will receive an email or SMS receipt to inform them that this new charge has been applied.
5.12.3 The payment receipt email or SMS will contain a link to view details of each transaction and give the Customer the option to update their card details and if required, to revoke their authorisation for future payment.
5.13 Should the Customer wish to query a charge or ask Derry Bros to remove their authority to charge the Customer’s card, the Customer can contact the Derry Bros accounts department on +44 (0) 2887784949 or accounts@derrybroscc.com

6. CUSTOMER OBLIGATIONS
6.1 To enable Derry Bros to supply Services to the Customer, the Customer undertakes to, at all times and in all respects undertakes:-
6.1.1 to complete and return to Derry Bros the Standing Authority Form, which must be signed by a director of the Customer if it is an incorporated entity;
6.1.2 to provide the Customer Materials and all other information, documents, materials, data or other items necessary for the provision of the Services, to Derry Bros in order for it to perform the Services in a timely manner and that:-
6.1.2.1 the Customer is responsible for the accuracy and timeliness of all information provided to Derry Bros, even when the information originates from a third party;
6.1.2.2 the Customer will supply all information and send all communication to Derry Bros by email to a dedicated email address or portal/platform provided by it; and
6.1.2.3 Derry Bros will rely on the Customer Materials as accurate and correct in all respects in the course of providing the Services.
6.1.3 to perform and comply with its obligations in accordance with the terms of this Agreement;
6.1.4 to pay the Price for the Services in accordance with the provisions of clause 3;
6.1.5 upon request of Derry Bros, to pay any sums required in advance, if applicable using the Autocharge system as referred to in clause 5;
6.1.6 to co-operate with Derry Bros in all matters arising under the Contract or otherwise relating to the performance of the Services, including following instructions issued by Derry Bros;
6.1.7 to pay all taxes, interest, penalties, and other fees as may be assessed under Applicable Law by the authorities in Northern Ireland or any other relevant jurisdiction for non-compliance, omissions, errors and audits;
6.1.8 to inform Derry Bros in a timely manner of any reduction of the Customer’s credit rating during the term of the Contract;
6.1.9 to inform Derry Bros in a timely manner of any matters (including any health, safety or security requirements) which may affect the provision of the Services;
6.1.10 to obtain and maintain all necessary licences, permits and consents, approvals or authorisations required under Applicable Law to enable Derry Bros to perform the Services for the Customer;
6.1.11 to submit any goods shipment that is under the supervision of customs authorities and delivered to or on behalf of the Customer with approval of the customs authorities (under inm procedure) to the customs authority of the destination intact, within specified deadline and in compliance with measures adopted by the relevant customs authorities; and
6.1.12 comply with Applicable Law.

7. PERFORMANCE OF THE SERVICES
7.1 Derry Bros will act as the Customer’s agent in providing the Services, on a direct or indirect basis and in order to facilitate the Customer’s declarations for import and export and according to such appointment Derry Bros has the power to appoint sub-agents and sub-contractors.
7.2 Derry Bros shall take reasonable steps to provide the Services in accordance with the instructions of the Customer, save that should Derry Bros reasonably consider that it is in the interest of the Customer to depart from those instructions, it shall have authority to do so and shall:-
7.3 be fully indemnified by the Customer for so doing;
7.4 have the right to perform such actions and work deemed necessary by it; and
7.5 shall have the right to charge the Customer any related fees, costs and expenses incurred in doing so.
7.6 The Services shall be deemed performed on completion of the performance of the Services as specified in the Order.
7.7 Derry Bros may perform the Services in instalments. Any delay or defect in an instalment shall not entitle the Customer to cancel any other instalment.
7.8 Derry Bros shall endeavour to perform the Services in accordance with any commencement or end dates specified for performance, however such dates shall be estimates only and time of performance shall not be of the essence. Any Services which do not have specified commencement or end dates shall be performed by Derry Bros within a reasonable period of time.
7.9 Derry Bros shall not be liable for any delay or failure in the performance of the Services caused by any act or omission by the Customer or failure by the Customer to perform any relevant obligation under the Contract (Customer Default), including but not limited to:
7.9.1 the Customer’s failure to supply the Customer Materials in a timely manner;
7.9.2 the Customer’s failure to provide Derry Bros with adequate instructions for the performance of the Services; or
7.9.3 Force Majeure.
7.10 Without limiting or affecting any other right or remedy available to it Derry Bros:-
7.10.1 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 it’s performance of any of its obligations under the Contract;
7.10.2 shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from its failure or delay to perform any of its obligations;
and
the Customer shall reimburse Derry Bros on written demand for any costs or losses sustained or incurred by it arising directly or indirectly from the Customer Default at the rate for Consultancy Services as identified its standard charges, which shall be charged in fifteen-minute increments.
7.11 Derry Bros shall not act as a record-keeping agent for the Customer and shall only keep such records that it is required to maintain by law pertaining to the business of the Customer.

8. WARRANTY
8.1 The Customer warrants that:
8.1.1 it has the right, power and authority to enter into the Contract and grant to Derry Bros the rights (if any) contemplated;
8.1.2 the Customer Materials and all other information, documents, materials, data or other items provided by the Customer do not infringe the Intellectual Property Rights of any third party;
8.1.3 it has the right, power and authority to retain, appoint and instruct Derry Bros to provide the Services for the relevant goods;
8.1.4 it is the importer, exporter, logistics provider, customs broker or owner of the goods for which it has retained Derry Bros to provide Services in relation to; and
8.1.5 the goods for which the Customer engages Derry Bros to provide Services in relation to are not counterfeit, stolen or prohibited goods.
8.2 Derry Bros warrants that the Services shall be performed:-
8.2.1 with reasonable care and skill within the meaning of section 13 of the Supply of Goods and Services Act 1982 (SGSA 1982); and
8.2.2 in accordance with generally accepted standards of the customs brokerage industry.
8.3 Subject to the provisions of clause 8.4, Derry Bros shall, at its option, remedy, re-perform or refund the Price of any Services that do not comply with clause 8.2.
8.4 Derry Bros shall not be liable for any failure of the Services to comply with the provisions of clause 8.2 where the same arises directly or indirectly and whether in whole or in part as a result of:
8.4.1 a breach by the Customer of any of its obligations under the Conditions;
8.4.2 an event of Force Majeure;
8.4.3 any specification or requirement of the Customer (Specification); or
8.4.4 use of the Customer Materials.
8.5 Except as set out in this clause 8:
8.5.1 Derry Bros gives no warranty and makes no representations in relation to the Services;
8.5.2 Derry Bros shall have no liability for any non-compliance with the warranty in clause 8.2 and
8.5.3 the conditions implied by SGSA 1982 ss 12–16 (inclusive) are expressly excluded.
8.6 The Customer acknowledges that Derry Bros is not and cannot be aware of the extent of any potential loss or damage to the Customer resulting from any failure of the Services to conform to the Specification or any failure by the it to discharge its obligations under this Agreement.
8.7 The provisions of this clause 8 set out the Customer’s sole and exclusive remedies (howsoever arising, whether in contract, tort, negligence or otherwise) for any breach of clause 8.2 or for any other error or defect in the performance of the Services.

9. ANTI-BRIBERY
9.1 For the purposes of this clause 9, the expressions adequate procedures and associated with shall be construed in accordance with BA 2010 and guidance published under it.
9.2 The Customer shall ensure that it and each person referred to in clauses 9.2.1 to 9.2.3 (inclusive) does not, by any act or omission, place Derry Bros in breach of any Bribery Laws. The Customer shall comply with all applicable Bribery Laws in connection with the performance of the Services and this Agreement, ensure that it has in place adequate procedures to prevent any breach of this clause 9 and ensure that:
9.2.1 all of the Customer’s personnel and all direct and indirect sub-contractors, suppliers, agents and other intermediaries of the Customer;
9.2.2 all others associated with the Customer; and
9.2.3 each person employed by or acting for or on behalf of any of those persons referred to in clauses 9.2.1 and/or 9.2.2,
involved in performance of obligations under the Conditions so comply.
9.3 Without limitation to clause 9.2, the Customer shall not make or receive any bribe (which term shall be construed in accordance with BA 2010) or other improper payment or advantage, or allow any such bribe or improper payment or advantage to be made or received on its behalf, either in the United Kingdom or elsewhere, and will implement and maintain adequate procedures to ensure that such bribes or improper payments or advantages are not made or received directly or indirectly on its behalf.
9.4 The Customer shall immediately notify Derry Bros as soon as it becomes aware of a breach or possible breach of any of the requirements in this clause 9.
9.5 Any breach of this clause 9 by the Customer shall be deemed a material breach of the Contract and shall entitle Derry Bros to terminate the Contract in accordance with clause 18.1.1.

10. ANTI-SLAVERY
10.1 The Customer undertakes, warrants and represents that:
10.1.1 neither the Customer nor any of its officers, employees, agents or sub-contractors has:
10.1.1.1 committed an offence under the Modern Slavery Act 2015 (MSA 2015) (an MSA Offence); or
10.1.1.2 been notified that it is subject to an investigation relating to an alleged MSA Offence or prosecution under MSA 2015; or
10.1.1.3 is aware of any circumstances within its supply chain that could give rise to an investigation relating to an alleged MSA Offence or prosecution under MSA 2015;
10.1.2 it shall comply with MSA 2015
10.1.3 it shall notify Derry Bros immediately in writing if it becomes aware or has reason to believe that it, or any of its officers, employees, agents or subcontractors have breached or potentially breached any of the Customer’s obligations under clause 10. Such notice to set out full details of the circumstances concerning the breach or potential breach of the Customer’s obligations.
10.2 Any breach of clause 10.1 by the Customer shall be deemed a material breach of the Contract and shall entitle Derry Bros to terminate the Contract in accordance with clause 18.1.1.

11. INDEMNITY AND INSURANCE
11.1 The Customer shall indemnify and keep indemnified Derry Bros for any and all losses, damages, liabilities, penalties, fines, costs, duties, taxes, levies and expenses of any nature whatsoever (including legal and professional fees) incurred by Derry Bros as a result of or in connection with the Customer’s breach of any of the Customer’s obligations under the Contract and as a result of or in connection with any action, cause of action demand or claim arising from:-
11.1.1 any instance in which Derry Bros has acted as an Indirect Representative for the Customer, as per the terms of the Standing Authority Form;
11.1.2 any claim that the provision of the Services infringes the Intellectual Property Rights of any third party;
11.1.3 the Customer Materials, including any inaccuracies, mistakes or omissions in the Customer Materials or any information and documentation provided to Derry Bros by the Customer to enable it to perform the Services;
11.1.4 the Customer, its employees, agent’s, subcontractors or representative’s conduct including any failure to take any action reasonably requested by Derry Bros;
11.1.5 any claim made against Derry Bros 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 Customer, its employees, agents, subcontractors or representatives;
11.1.6 any claim made against Derry Bros 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.
11.2 This clause shall survive termination of the Contract.

12. LIMITATION OF LIABILITY
12.1 The extent of Derry Bros liability under or in connection with the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 12.
12.2 Subject to clause 12.6, the liability of Derry Bros shall not exceed in respect of any one claim or series of related claims, the Price paid for the particular Service provided; and
12.3 Subject to clause 12.6, Derry Bros shall not be liable for any consequential, indirect or special loss.
12.4 Subject to clause12.6, Derry Bros shall not be liable for any of the following (whether direct or indirect):
12.4.1 loss of profit;
12.4.2 loss of revenue;
12.4.3 loss or corruption of data;
12.4.4 loss or corruption of software or systems;
12.4.5 loss or damage to equipment;
12.4.6 loss of use;
12.4.7 loss of production;
12.4.8 loss of contract;
12.4.9 loss of commercial opportunity;
12.4.10 loss of savings, discount or rebate (whether actual or anticipated);
12.4.11 harm to reputation or loss of goodwill; and/or
12.4.12 wasted expenditure;
12.4.13 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 Customer;
12.4.14 action taken or fines or penalties assessed by any international customs or governmental agency because of the failure by the Customer to comply with the law or the requirements or regulations of any international customs or governmental agency or with a notification issued to the Customer by any such agency.
12.5 Except as expressly stated in these Conditions, and subject to clause 12.6, all warranties and conditions whether express or implied by statute, common law or otherwise are excluded to the full extent permitted by law.
12.6 Notwithstanding any other provision of the Contract, nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability in any way in respect of the following:
12.6.1 death or personal injury caused by negligence;
12.6.2 fraud or fraudulent misrepresentation;
12.6.3 any other losses which cannot be excluded or limited by applicable law;
12.7 Derry Bros shall not be liable for any claim unless written particulars of it (giving full details of the matter in respect of which the claim is made, the nature of the breach and the amount claimed) shall have been given to it promptly after the Customer becomes aware of the matters or circumstances giving rise to the claim and in any event no later than twelve (12) months after the Service to which the claim relates has been carried out by Derry Bros.
12.8 Subject to paragraph 12.9, where notice has been given in respect of any claim in accordance with paragraph 12.7, that claim shall be deemed to have been irrevocably withdrawn and lapsed unless:
12.8.1 proceedings in respect of such claim have been issued and served on Derry Bros not later than the expiry of the period of six (6) months after the date of that notice; or
12.8.2 the claim is satisfied, settled or withdrawn before that date.
12.9 If any claim arises by reason of a liability that is future, contingent and/or unquantifiable:
12.9.1 Derry Bros shall not be under any obligation to make any payment for such claim until such time as that liability becomes an actual liability, or is capable of being quantified, before the expiry of the time period set out in paragraph 13.7, in respect of any claim made under the provisions of the Contract; and
12.9.2 Derry Bros shall not be liable for any such contingent and/or unquantifiable claim unless proceedings have been both issued and validly served on it within three (3) months from the date on which the liability becomes an actual liability or has become capable of being quantified.
12.10 Nothing in this clause 12 shall limit the Customer’s payment obligations under the Contract.

13. INTELLECTUAL PROPERTY RIGHTS
13.1 In consideration of the Price payable under the Contract (the receipt and sufficiency of which Derry Bros hereby acknowledges) and the parties’ mutual obligations under this Contract Derry Bros grants to the Customer a non-exclusive licence to use for the purposes of the Contract the Intellectual Property Rights in the Services and all other materials created by Derry Bros pursuant to this Agreement.
13.2 Except as expressly agreed above, no Intellectual Property Rights of either party are transferred or licensed as a result of this Contract.
13.3 Subject to the foregoing, Derry Bros shall be entitled to use in any way it deems fit any skills, techniques or know-how acquired or developed or used in connection with the Contract provided always that such skills, techniques or know-how do not infringe the other party’s Intellectual Property Rights now or in the future or disclose or breach the confidentiality of the Customer’s Confidential Information.

14. CONFIDENTIALITY AND ANNOUNCEMENTS
14.1 The Customer shall keep confidential all Confidential Information of Derry Bros and of its Affiliates and shall only use the same as required to perform the Contract. The provisions of this clause shall not apply to:
14.1.1 any information which was in the public domain at the date of the Contract;
14.1.2 any information which comes into the public domain subsequently other than as a consequence of any breach of the Contract or any related agreement;
14.1.3 any information which is independently developed by the Customer without using information supplied by Derry Bros or by any Affiliate of Derry Bros; or
14.1.4 any disclosure required by law or a regulatory authority or otherwise by the provisions of the Contract.
except that the provisions of clauses 14.1.1 to 14.1.3 shall not apply to information to which clause 14.4 relates.
14.2 The Customer shall not make any public announcement or disclose any information regarding the Contract, except to the extent required by law or regulatory authority.
14.3 To the extent any Confidential Information is Protected Data such Confidential Information may be disclosed or used only to the extent such disclosure or use is in compliance with and does not conflict with any of the provisions of clause 14.1.
14.4 This clause shall remain in force in perpetuity.

15. DATA PROTECTION
15.1 In this clause, the following definitions apply
“Adequacy Regulation” means any valid adequacy regulation as referred to in Article 45 of the UK GDPR;
“Controller” has the meaning given in applicable Data Protection Laws from time to time;
“Data Protection Laws” means, as binding on either party or the Services:
(a) the GDPR;
(b) the Data Protection Act 2018;
(c) any laws which implement any such laws; and
(d) any laws that replace, extend, re-enact, consolidate or amend any of the foregoing;
“Data Subject” has the meaning given in applicable Data Protection Laws from time to time;
“GDPR” means the General Data Protection Regulation, Regulation (EU) 2016/679 as it forms part of domestic law in the United Kingdom by virtue of section 3 of the European Union (Withdrawal) Act 2018 (including as further amended or modified by the laws of the United Kingdom or a part of the United Kingdom from time to time);
“International Organisation” has the meaning given in applicable Data Protection Laws from time to time;
“Lawful Safeguards” means such legally enforceable mechanism(s) for Transfers of Personal Data as may be permitted under Data Protection Laws from time to time;
“Onward Transfer” means a Transfer from one International Organisation to another International Organisation;
“Personal Data” has the meaning given in applicable Data Protection Laws from time to time;
“Personal Data Breach” has the meaning given in applicable Data Protection Laws from time to time;
“processing” has the meaning given in applicable Data Protection Laws from time to time (and related expressions, including process, processed and processes shall be construed accordingly);
“Processor” has the meaning given in applicable Data Protection Laws from time to time;
“Protected Data” means Personal Data received from or on behalf of the Customer in connection with the performance of Derry Bros’s obligations under this Agreement;
“Sub-Processor” means any Processor engaged by Derry Bros (or by any other Sub-Processor) for carrying out any processing activities in respect of the Protected Data on behalf of the Customer; and
“Transfer” has the same meaning as the word ‘transfer’ in Article 44 of the GDPR, and related expressions such as Transfers and Transferring shall be construed accordingly.
15.2 Each party to the Contract shall comply with all applicable requirements of Data Protection Laws and with its respective obligations, and may exercise its respective rights and remedies, set out in this clause. This clause 15 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Laws.
15.3 The parties agree that the Customer is a Controller and that Derry Bros is a Processor for the purposes of processing Protected Data pursuant to the Contract.
15.4 Without prejudice to clause 15.2, the Customer shall at all times comply with all Data Protection Laws in connection with the processing of Protected Data and shall ensure all instructions given by it to Derry Bros in respect of Protected Data (including the terms of the Contract) shall at all times be in accordance with Data Protection Laws. Nothing in the Contract relieves the Customer of any responsibilities or liabilities under any Data Protection Laws.
15.5 Without prejudice to clause 15.2, Derry Bros shall process Protected Data in compliance with the obligations placed on it under Data Protection Laws and the terms of the Contract except to the extent Derry Bros is otherwise required by Applicable Law (and shall inform the Customer of that legal requirement before processing, unless Applicable Law prevents it doing so on important grounds of public interest).
15.6 The Customer shall indemnify and keep indemnified Derry Bros against all losses, claims, damages, liabilities, fines, sanctions, interest, penalties, costs, charges, expenses, compensation paid to Data Subjects, demands and legal and other professional costs (calculated on a full indemnity basis and in each case whether or not arising from any investigation by, or imposed by, a Data Protection Supervisory Authority) arising out of or in connection with any breach by the Customer of its obligations under this clause 15.
15.7 For the purpose of; Derry Bros supplying Services to the Customer, to meet contractual obligations in the Contract and for legitimate business interests, the Customer hereby authorises Derry Bros to
15.7.1 Share Protected Data with any Affiliate;
15.7.2 Transfer Protected Data to any International Organisation, provided all Transfers of Protected Data by Derry Bros to an International Organisation (including any Onward Transfer) shall:
15.7.2.1 to the extent required under Data Protection Laws, be effected by way of Lawful Safeguards and in accordance with clause 15.8 and the Contract; and
15.7.2.2 be made pursuant to a written contract that includes equivalent obligations on each Sub-Processor in respect of Transfers of Protected Data to International Organisation as apply to Derry Bros under the provisions of this clause;
and the provisions of this Agreement shall constitute the Customer’s instructions with respect to Transfers of Protected Data for the purposes of this Agreement.
15.8 The Lawful Safeguards employed by Derry Bros in connection with the Contract shall be as follows:
15.8.1 any relevant Adequacy Regulation;
15.8.2 in the absence of an appropriate Adequacy Regulation, any one or more of the following, as appropriate:
15.8.2.1 the relevant standard contractual clauses for international transfers as approved under Article 46 UK GDPR; and/or
15.8.2.2 an alternative Lawful Safeguard agreed in writing between the parties (consent of either party not to be unreasonably, withheld, conditioned or delayed).
15.9 If Derry Bros believes that any instruction received by it from the Customer is likely to infringe the Data Protection Laws, it shall notify the Customer immediately of this potential infringement. Derry Bros shall then be entitled to cease to provide the relevant Services until the Customer has provided Derry Bros with amended instructions which are in compliance with applicable Data Protection Laws.
15.10 Derry Bros shall, in accordance with Data Protection Laws, make available to the Customer such information that is in its possession or control as is necessary to demonstrate its compliance with the obligations placed on it under the Contract and to demonstrate compliance with the obligations on each party imposed by Article 28 of the GDPR (and under any equivalent Data Protection Laws equivalent to that Article 28).
15.11 Derry Bros shall notify the Customer without undue delay and in writing on becoming aware of any Personal Data Breach in respect of any Protected Data
15.12 This clause 15 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Laws.
15.13 .

16. FORCE MAJEURE
16.1 Neither party shall have any liability under or be deemed to be in breach of the Contract for any delays or failures in performance of the Contract which result from Force Majeure. The party subject to the Force Majeure event shall promptly notify the other party in writing when such an event causes a delay or failure in performance and when it ceases to do so.
16.2 If the Force Majeure event continues for a continuous period of more than fourteen (14) days, the party not affected may terminate the Contract by written notice to the other party.

17. APPOINTMENT OF ATTORNEY
17.1 The Customer appoints Derry Bros to be its true and lawful attorney with full power, authority and legal right in the name and on behalf of the Customer:-
17.1.1 to do and perform any and all acts, matters and things and to have the absolute discretion to approve the form and content of and to execute, deliver, seal and sign any and all deeds, contracts, consents, letters or other documents, whether as deeds or otherwise, and to grant any authorisations or consents which may be required by the Customer which Derry Bros may in its sole and absolute discretion consider necessary or desirable in connection with the provision of Services to the Customer and the Contract with the Customer and in particular to amend, sign, execute and deliver on the Customer’s behalf the following documents and any amendments to them:
17.1.1.1 the Import Declarations;
17.1.1.2 the Export Declarations;
17.1.1.3 the Transit Declarations;
17.1.1.4 the Safety and Security Declarations; and
17.1.1.5 letters and correspondence to various international customs authorities and regulatory bodies;
17.1.2 to generally negotiate, amend, sign, seal, execute and deliver on the Customer’s behalf any and all documents, deeds, instruments, contracts, letters, authorisations, consents, announcements and other documents and to do and perform any and all acts, matters and things which may be necessary, required or desirable in connection with or to facilitate the provision of Services under the Contract.
17.2 Derry Bros shall have the power to delegate to an agent (including, but not limited to, the officers and directors of the agent) the exercise of any power the Customer has given under this power of attorney clause. For the avoidance of doubt, the agent shall not have the power to make a delegation itself.
17.3 Derry Bros shall have the power to appoint and remove a substitute (who shall not have the power of substitution) who shall have the power to act on the Customer’s behalf as if the substitute had been originally appointed as attorney by this power of attorney and shall have the power to revoke any such appointment at any time without giving any reason.
17.4 The Customer undertakes to ratify and confirm whatever Derry Bros shall lawfully do, purport to do or cause to be done by virtue of this power of attorney and to indemnify and hold harmless Derry Bros and their successors against all actions, demands, proceedings, claims, costs, expenses, obligations, liabilities and losses of any description arising from the exercise or the purported exercise in good faith of any of the powers hereby granted to it under this power of attorney, including in relation to Transit declarations.
17.5 This power of attorney shall be:
17.5.1 irrevocable from the date of this power of attorney until the termination of the Contract when it shall automatically expire; and
17.5.2 conclusive and binding on the Customer and the Customer’s successors.
17.6 No person or corporation having dealings with Derry Bros under the power of attorney granted by this clause shall have any obligation to make any enquiries as to whether or not this power of attorney has been revoked.
17.7 Any exercise by the Customer from time to time of any of the powers hereby conferred on Derry Bros shall not of itself be deemed to be a revocation and all acts under this power of attorney shall be valid and binding on the Customer until express notice of its revocation is received by such before mentioned person or body corporate.

18. TERMINATION
18.1 Derry Bros may terminate the Contract or any other contract which it has with the Customer at any time by giving notice in writing to the Customer if:
18.1.1 the Customer commits a material breach of Contract and such breach is not remediable;
18.1.2 the Customer commits a material breach of the Contract which is capable of being remedied and such breach is not remedied within fourteen (14) days of receiving written notice of such breach;
18.1.3 the Customer has failed to pay any amount due under the Contract on the due date and such amount remains unpaid within five (5) Business Days after Derry Bros has given notification that the payment is overdue; or
18.1.4 any consent, licence or authorisation held by the Customer is revoked or modified such that the Customer is no longer able to comply with its obligations under the Contract or receive any benefit to which it is entitled.
18.2 Derry Bros may terminate the Contract at any time by giving notice in writing to the Customer if the Customer:
18.2.1 stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;
18.2.2 is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if Derry Bros reasonably believes that to be the case;
18.2.3 becomes the subject of a company voluntary arrangement under the Insolvency Act 1986;
18.2.4 becomes subject to a moratorium under Part A1 of the Insolvency Act 1986;
18.2.5 becomes subject to a restructuring plan under Part 26A of the Companies Act 2006;
18.2.6 becomes subject to a scheme of arrangement under Part 26 of the Companies Act 2006;
18.2.7 has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;
18.2.8 has a resolution passed for its winding up;
18.2.9 has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it;
18.2.10 suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;
18.2.11 is subject to any procedure for the taking control of its goods that is not withdrawn or discharged within five (5) Business Days of that procedure being commenced;
18.2.12 has a freezing order made against it;
18.2.13 is subject to any recovery or attempted recovery of items supplied to it by a supplier retaining title to those items;
18.2.14 is subject to any events or circumstances analogous to those in clauses 18.2.1 to 18.2.13 in any jurisdiction;
18.3 Derry Bros may terminate the Contract any time by giving not less than four (4) weeks’ notice in writing to the Customer if the Customer undergoes a change of Control or if it is realistically anticipated that it shall undergo a change of Control within two months.
18.4 If the Customer becomes aware that any event has occurred, or circumstances exist, which may entitle Derry Bros to terminate the Contract under this clause 18, it shall immediately notify Derry Bros in writing.
18.5 Termination or expiry of the Contract shall not affect any accrued rights and liabilities of Derry Bros at any time up to the date of termination.
18.6 On termination of the Contract for any reason:
18.6.1 the Customer shall immediately pay all outstanding unpaid invoices of Derry Bros;
18.6.2 Derry Bros shall promptly invoice the Customer for all Services performed and supplied but not yet invoiced and payment for such invoices shall be due immediately on receipt by the Customer;
18.6.3 without prejudice to any additional obligations that may exist, the Customer shall, within five (5) Business Days, return any materials of Derry Bros then in its possession or control; if it fails to do so, Derry Bros may enter any premises owned by or under the control of the Customer and take possession of them; and
18.6.4 the accrued rights and liabilities of the parties (including any rights in relation to breaches of Contract) shall not be affected.
18.7 The following clauses of the Contract shall survive termination, howsoever caused:
18.7.1 clause 12 (limitation of liability);
18.7.2 clause 15 (data protection);
18.7.3 clause 18 (termination);
18.7.4 clause 14 (confidentiality and announcements);
18.7.5 clause 21.6 (notices);
18.7.6 clause 21.9 (third party rights);
18.7.7 clause 21.12 (governing law and jurisdiction); and
together with any other provision of the Contract which expressly or by implication is intended to survive termination.

19. FORCE MAJEURE
Neither party shall have any liability under or be deemed to be in breach of the Contract for any delays or failures in performance of the Contract which result from Force Majeure. The party subject to the Force Majeure event shall promptly notify the other party in writing when such the event causes a delay or failure in performance and when it ceases to do so. If the Force Majeure event continues for a continuous period of more than seven (7) Business Days, either party may terminate the Contract by written notice to the other party

20. GENERAL
20.1 Assignment and subcontracting: Derry Bros may at any time assign, transfer, charge, subcontract or deal in any other manner with any or all of its rights or obligations under the Contract. The Customer may not assign, transfer, charge, subcontract or deal in any other manner with any or all of its rights or obligations under the Contract without Derry Bros prior written consent.
20.2 Set Off: Derry Bros shall be entitled to set-off under the Contract any liability which it has or any sums which it owes to the Customer under the Contract or under any other contract which Derry Bros has with the Customer. The Customer shall pay all sums that it owes to Derry Bros under the Contract without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
20.3 Conflicts within Contract: If there is a conflict between the terms contained in the Conditions and the terms of the Order, schedules, appendices or annexes to the Contract, the terms of the Conditions shall prevail to the extent of the conflict.
20.4 Equitable relief: The Customer recognises that any breach or threatened breach of the Contract may cause Derry Bros irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages available to Derry Bros, the Customer acknowledges and agrees that Derry Bros is entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.
20.5 Costs and expenses: The Customer shall pay its own costs and expenses incurred in connection with the negotiation, preparation, signature and performance of the Contract (and any documents referred to in it). The Customer shall at the request of Derry Bros and a the Customer’s own costs, do all acts and execute all documents which are necessary to give full effect to the Contract.
20.6 Notices:
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause and shall be delivered personally, or sent by pre-paid first class post, recorded delivery, commercial courier or fax.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 14.2(a); if sent by pre-paid first class post or recorded delivery, at 9.00am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, or if sent by fax, 24 hours after transmission.
(c) The provisions in this clause shall not apply to the service of any proceedings or other documents in any legal action.
20.7 Severance: If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part provision shall, to the extent required, be deemed to be deleted and the validity and enforceability of the other provisions of the Contract shall not be affected. If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
20.8 Waiver: A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that of any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
20.9 Third Party Rights: Except as expressly provided for in this clause, a person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract. An Affiliate of Derry Bros shall be entitled to enforce any of the provisions of the Contract.
20.10 Entire Agreement: The parties agree that the Contract and any documents entered into pursuant to it constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter. Each party acknowledges that it has not entered into the Contract or any documents entered into pursuant to it in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Contract or any documents entered into pursuant to it. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Contract. Nothing in these Conditions purports to limit or exclude any liability for fraud
20.11 Variation: These Conditions shall prevail over any terms or conditions of purchase of the Customer set out in correspondence, acknowledgements, advice notes or any other document to the entire exclusion of the latter and shall not be varied or waived except in writing signed by a senior manager of Derry Bros.
20.12 Governing Law and Jurisdiction: These Conditions shall be governed by the laws of Northern Ireland and the Courts of Northern Ireland shall have exclusive jurisdiction to determine any dispute or difference between the parties touching or concerning these Conditions unless Derry Bros invokes the Courts of any other jurisdiction.