Terms & Conditions

CUNNINGHAMS OF WESTPORT

39 DEERPARK EAST

NEWPORT ROAD

WESTPORT

COUNTY MAYO

IRELAND

 

TELEPHONE: +353 87 226 7970 Email: hello@cunninghamsofwestport.ie

Visit our Website at: https//cunninghamsofwestport.ie 

CONDITIONS OF CARRIAGE

By the conditions set out below, Cunninghams of Westport are:

  1. Not to be liable for certain losses or damages and
  2. If they are liable, the amount and extent of such liability is limited to the amounts and to the extent stated herein.

 

In entering into any contract with Cuninghams of Westport, the customer acknowledges these conditions and accepts that the limitations and exclusions contained therein are fair, reasonable and acceptable and that he/she has been given the opportunity to arrange insurance cover is required. The conditions shall be read and construed in accordance with the law in Southern Ireland and any dispute or difference, which may arise between any of the parties hereto, shall be determined by the courts of Southern Ireland. The conditions are to be applicable as and from the first day of January 1986.

 

SECTION ONE

DEFINITIONS

  1. COW- shall mean Cuninghams of Westport, its employees, servants, agents associated companies and subcontractors.
  2. CUSTOMER – shall mean the party, person, firm or company who engages the services of COW.
  3. CONSIGNMENT- shall mean the goods in bulk or contained in one parcel or package or item as the case may be, or any number of separate parcels, packages or items sent at one time in one load for the customer from one address and to one address. 
  4. CONSIGNEE- shall mean the person or company or firm to whom the goods are addressed, or any person claiming to represent that person, company or company title of the consignee, a brief description of the consignment and the name or signature or mark of the consignee, whether or not the said name or signature or mark is legible.
  5. DANGEROUS GOODS- shall mean any goods specified as dangerous or hazardous within the scope of current and relevant legislation, are of a kindred nature in the opinion of the directors of COW. 
  6. CONTRACT-shall mean the contract of service between the customer and COW.


SECTION TWO

THE CONTRACT

  1. COW is not a common carrier and will enter into contract only on these conditions.
  2. These conditions supersede any and all prior conditions between COW and its customers whether written verbal or otherwise implied sop that all other conditions are thereby excluded unless specially arranged prior to transit and reduced to writing and signed by a director or the secretary of COW. No other person shall have the right to alter these to any extent whatsoever.
  3. Without prejudice to its rights and giving any warranty or incurring any liability or obligation whatsoever, COW reserves the right to open and inspect any consignment in order to establish its acceptability for transit under these conditions.
  4. Any request by any customer for COW to provide any service including advice re. information shall constitute an offer, whereas collection by COW of any consignment shall constitute an acceptance by COW to provide carriage under these conditions. Accordingly, the contract shall not have been entered into and no liability incurred by COW until the consignment to which the contract relates shall in the possession of COW.
  5. COW shall have the right to carry the consignment by any route or procedure and by successive carriers and according to its own handling, storage and transport arrangements.
  6. The customer enters, and warrants that he may enter the contract on behalf of himself and as agent for the owner or owners of the consignment. Accordingly, both parties shall be bound by these conditions.

 

SECTION THREE

TRANSIT

 

  1. Transit shall commence when the consignment is received and accepted by COW.
  2. Transit shall end (unless previously determined) when the consignment had been tendered at the usual place of delivery at the consignee’s given address within the customary cartage hours of the district or when deposited for the consignee or his agent at any previously agreed place, provided that:

(1) If no safe and adequate access or unloading facilities exist therein, transit shall be deemed to have ended at the expiry of one clear day after notice in writing or by telephone of the arrival of the consignment at the delivering carrier’s premises has been issued to the consignee. COW shall have the sole authority to decide if safe and adequate access and facilities so exist. If the customer, his agent, the consignee or any party acting in any authority, other than that invested in COW requires the vehicle concerned to be place otherwise than at the discretion of COW, it shall be at the sole risk of the customer and the customer shall keep COW indemnified against any claim or demand for any loss or other damage, however caused, subject, in all cases tot he right of COW to refuse to so place the vehicle should they consider it inadvisable.

(2) When, for any other reason whatever, a consignment cannot be delivered or when a consignment is held by a carrier “to await instructions” or “to be held until called for” or upon any like instructions and such instructions are not given or the consignment is not called for and removed within a reasonable period, as suits COW, then transit will be deemed to have ended.

 

SECTION FOUR

PARTIES AND SUBCONTRACTING

 

  1. Where the customer is not the owner of some or all of the goods in any consignment, he shall be deemed to be the agent of the owner or owners of the goods for all purposes.
  2. COW may employ the services of any other party for the purpose of fulfilling the contract. Any such party so subcontracted shall have the power to further subcontract on like terms.
  3. COW enters into the contract on behalf of itself, its employees, servants agents and subcontractors, all of whom shall be entitled to the benefit of these conditions and shall be under no liability whatsoever to the customer in respect of the consignment in addition to or separately from that of COW under these conditions.
  4. The customer shall save as harmless and keep COW indemnified against all claims or demands whatsoever made in excess of the liability of COW under these conditions in respect of any loss, damage or injury, however caused, whether or not by the negligence of COW, with their employees, servants, agents or subcontractors.

SECTION FIVE

LOADING AND OFFLOADING

 

  1. Where a collection or delivery of any consignment is being made on behalf of a customer, COW will not be under any obligation to the driver, which may be required for loading or offloading at any location and any such additional requirement, thus provided, shall be at the customers expense. 
  2. Any assistance given by or on behalf of COW in loading or offloading in order to effect a collection or delivery of any consignment, will be at the sole risk of the customer who will save as harmless and keep COW indemnified against any claim or demand which could could not have been made if such assistance had not been given.
  3. Consignments requiring special appliances or conditions for loading or offloading onto or from the vehicle are accepted on the further condition that the customer undertakes that such appliances are available at the time and at the point of such loading and offloading and, where COW are required to load or offload such consignments without prior agreements in writing with the customer, COW shall not be liable for any damage or other loss, howsoever caused, whether or not by the negligence of COW and the customer shall save as harmless and keep COW indemnified against any claim or demand which could not have been made if such assistance had not been given.

 

SECTION SIX

UNDELIVERED, UNCOLLECTED, OR UNCLAIMED GOODS

Where COW is unable to deliver a consignment as instructed, for whatever reason, or where transit is deemed to be ended by virtue of section 3(1) or 3(2), then COW may sell the goods and payment or tender of the proceeds after deductions of all proper charges and related expenses all outstanding charges in relation to the carriage and storage of the goods shall (without prejudice to any claim or right which the customer may have against COW otherwise arising under these conditions) discharge COW form all liability in respect of such goods, their carriage and storage, provided that:

  1. COW shall do what is reasonable in the circumstances to obtain the value of the consignment and
  2. The power of sale shall not be exercised where the name and address of the sender or of the consignee is known unless COW has done what is reasonable in the circumstances to give notice to the sender or, if the name of the sender is not known, to the consignee that the goods will be sold unless, within the time specified in such notice, being a reasonable time in the circumstances from the giving of such notice, the goods are taken away or instructions, acceptable to the directors of COW, are given for their disposal.

 

SECTION SEVEN

CHARGES

 

  • Charges incurred by the customer shall be payable by the customer without prejudice to the right of COW to claim against any other party for carriage and other charges.
  • COW will accept “carriage forward” consignments only by prior, written agreement. In such cases COW ill reserve the right to refuse delivery until all carriage and other charges have been paid in full and the customer shall remain liable to COW for such charges pending full payment including, without limitation, any and all direct and indirect costs or returning the consignment if this is required.
  • Terms of trading are for payment on or before the last day of the month following the date of invoice.
  • Claims or counterclaims against Cow or any other person or company shall not be made the reason for deferring or withholding payments of monies or otherwise due or liabilities incurred to COW. Such claims shall not be deducted from the COW account and will be paid only when the directors of COW have agreed the claim.
  • The absence of or a discrepancy on a signed “Proof of Delivery” (POD) note in respect of a consignment shall not be made the reason for deferring/withholding payment of any monies due or liabilities incurred to COW.
  • Except where the quotation states otherwise, all quotations based upon a weight charge shall apply to the gross weight.
  • Where the consignment exceeds 100 cubic feet in measurement per 1000 kilograms in weight, the rate shall be computed upon and apply to each measurement of 100 cubic feet or pro rata.
  • Additional charges or surcharges may apply in the following circumstances:
  1. Where the consignment (or the documentation thereof) is to be collected in part or in full, docks, wharves, container bases and other place which may be specified by COW from time to time.
  2. Where unreasonable delay is caused by any party other than COW during the process of collection or delivery of any consignment.
  3. Where the consignment exceeds 10 feet in any one dimension.
  4. In other circumstances as introduced from time to time and indicated upon our price lists.

 

SECTION SEVEN

CHARGES

 

  • Where temporary storage is required under any circumstances, the customer shall be liable to COW for such charges as are thus incurred at the rate (currently) of one pound per 100 kilograms (or part thereof) per day (not including weekends or public holidays or the first 48 hours from the date of commencement of such storage).
  • Should a customer have cause or occasion to query the correctness of any invoice or statement issued by COW, such query shall be communicated to COW account within 14 days of the date of issue of such invoice or statement, otherwise, the customer will be deemed to have agreed the account as stated.
  • COW reserves the right to alter its rates or levy a surcharge without prior notice.
  • All charges are liable to Value Added Tax (VAT).

 

SECTION EIGHT

EXCLUSIONS OF LIABILITY FOR LOSS, DAMAGE OR DELAY

 

Subject to these conditions, COW shall not be liable for any direct, indirect or consequential loss due to the total or partial damage, misdelivery, loss or delay of any consignment, whether during transit or otherwise, unless the customer shall prove that such total or partial damage, misdelivery, loss or delay has arisen as a direct result of wilful negligence on the part of COW and not a direct or indirect result of: Acts of God or Force Majeure, any consequences of war, invasion, act of foreign enemy, hostilities (whether war be declared or not), civil war, rebellion, insurrection, military or usurped power or confiscation, requisition, destruction of or damage top property by, or under the order of, any government or public or local authority; seizure under legal process; act of omission, e error or fraud by the customer or owner of the goods; any inherent liability to wastage in bulk, weight or quality, latent or inherent defect, vice or natural deterioration of the goods; insufficient or improper packing, sealing, labelling or addressing of the goods, riots, civil commotion, lockouts general or partial stoppage or restraint of labour from whatever cause; violence or intimidation or force of arms whether actual or threatened; failure of the consignee within reasonable time, or any other cause reasonably beyond the control of COW. Cow will not be liable in any event unless specifically agreed in writing prior to transit for any direct or consequential loss due to the total or partial damage, misdelivery, loss or delay of any tobacco; glass, antiques, jewellery, furs, precious metals or stones, cash, bullion, musical instruments, computer hardware or software, works of art, negotiable instruments or stamps.

 

SECTION NINE

LIMITATIONS OF LIABILITY FOR LOSS, DAMAGE OR DELAY

 

  1. Without prejudice to section eight hereof, the liability of COW in respect of any one consignment shall not under any circumstances exceed the value of the consignment or twenty thousand pounds, whichever is the lesser.
  2. Consignments whose value is in excess of this limitation should not be insured, separately, by the owners.
  3. COW shall not under any circumstances be liable for any indirect or consequential losses or damages howsoever arising whether or not COW had any knowledge that such damages might be incurred including, but not limited to, loss of income, profits, interest, utility or loss of any market.
  4. No liability whatsoever will be accepted by COW where a signed “Proof of Delivery” (POD) docket has been obtained from the consignees, or a person claiming to be or to represent the consignee. COW will not be responsible for the legibility of the signature or mark of the consignee, or of the person claiming to be or to represent the consignee, or for the accuracy or legibility of any other information written on or appended to the “Proof of Delivery” docket. The words “Not Checked2 or “Unexamined” or words to the same or similar effect shall not be deemed to leave COW liable for any shortage of damage subsequently discovered.
  5. In the event of claim, COW shall be entitled to require proof of the value of the whole consignment or any part thereof which is alleged to be lost, misdelivered, damaged or delayed and further entitled to require evidence that the consignment, immediately prior to transit, had been thoroughly examined and certified to be free of the claimed damage, fault, defect or shortage by a person, or persons, properly qualified to so proclaim.
  6. Unmarked or inadequately marked, unpacked, or unsealed or inadequately sealed consignments are carried entirely at the customer’s risk.
  7. All goods must be properly packed and all packages, bundles, cartons, or containers of any description must be sealed and adequate for the purpose of protecting the contents from accidental damage and pilfering. COW will not, under any circumstances, entertain any claims or shortages or damages relating to improperly packed ore inadequately packed goods.

 

SECTION TEN

GENERAL LIEN

 

COW shall have a general lien against the owner of the goods for any monies whatever due from the customer or such other owner to COW. If any such lien is not satisfied within a reasonable time, COW shall give fourteen days notice in writing (or three days in the case of perishable goods0 to the customer of its intention to exercise a power of sale over the goods. If, at the end of this period, monies are still due to COW they may, at their absolute discretion, sell the goods, or any part thereof, as agent for the owner and apply the proceeds towards the monies due and the expenses of the retention, insurance and sale of the goods and shall, upon accounting to the customer for the balance remaining, be discharged from all liability whatever in respect of the goods. 

 

SECTION ELEVEN

INDEMNITY TO C

 

The customer shall indemnify COW against:

  1. All claims, costs and expenses incurred in consequence of non-disclosure by the customer or owner of the goods or by any party representing himself as such, as to the dangerous or hazardous nature of the goods or of the condition of the goods prior to or during transit.
  2. All consequences suffered by COW of any error, omission, misrepresentation or fraud by the customer or owner of the goods or by any party representing himself as such or as agent for the customer or owner of the goods or of any improper packing, labelling, sealing, or addressing of the consignment either in whole or in part thereof.
  3. Claims or demands made by whoever made in excess of the liability of COW under these conditions.
  4. Any liability arising under Section Twelve (8) of the Finance Act or any statutory modification or re-enactments thereof in respect of a failure to export zero-rated goods or to comply with any condition in relation to zero-rated goods intended to be exported.
  5. Any loss to COW resulting from breach of the customer’s warranty in Section Two (F).

 

SECTION TWELVE

FRAGILE GOODS 

All consignments must be properly packed as appropriate to their levels of fragility, whilst COW will take reasonable care in handling all consignments and will endeavour to give special attention go goods clearly marked “Fragile”, no responsibility will be accepted for any breakage’s of goods of a fragile or brittle nature. The onus shall rest with the customer to ensure that all consignments are adequately packed to endure the unavoidable stresses and buffeting in the course of transportation by road freight.

 

SECTION THIRTEEN 

DANGEROUS GOODS

 

  1. COW will not, under any circumstances, accept dangerous or hazardous goods without prior, explicit agreement having been secured, in writing and signed by a director or the secretary of COW.
  2. If COW agree to accept dangerous or hazardous goods for carriage, such goods must be accompanied by a full declaration as to their nature and contents and all other documents as are required under relevant legislation and the goods must be safely and properly packed and otherwise conform with any statutory legislation and regulations for the time being in force for transport by road.
  3. The customer shall indemnify COW against all direct or indirect or consequential loss, damage or injury howsoever caused arising out of the carriage of such dangerous or hazardous goods whether or not they have been declared as dangerous or hazardous.

 

SECTION FOURTEEN

CONSIGNMENT NOTES

 

  1. COW shall, if required, sign a docket prepared by the customer to acknowledge receipt of the consignment, but no such docket shall be evidence as to the correctness of the declared or actual nature, condition, quality, quantity or weight of the consignment at the time it is received by COW.
  2. Unless otherwise agreed in writing with COW, each piece of the consignment shall be individually and correctly addressed and each consignment, as a whole shall be accompanied by a document, supplied and completed by the sender, specifying the origin, the destinations, the gross weight and volume of the consignment, the total number of pieces in the consignment and any other relevant details (including special instructions).
  3. Unless otherwise agreed in writing with COW, where accompanying documentation does not exist or, where such documentation exists but does not state or incorrectly states the gross weight or volume thereof and no subsequent adjustments to this estimate will be allowed.
  4. The use of any document, other than that issued by COW, as a Consignment Note or “Proof of Delivery” (POD) or for any other purpose whatever, shall not be a derogation of these conditions.
  5. Any document bearing the name or title of the destination, a brief description of the consignment and the signature or name or mark of the consignee shall be deemed to be a valid proof of delivery.

 

SECTION FIFTEEN 

UNREASONABLE DETENTION

 

The customer shall be liable for the costs of unreasonable detention of vehicles, containers, documentation etceteras, but the rights of COW against any other party shall remain unaffected. Time spent at any premises relating to the collection or delivery of the consignment, in excess of one quarter of an hour per ton or part thereof, shall be subject to a charge at the hourly rate in operation for that particular vehicle at that particular time.

 

SECTION SIXTEEN

COMPUTATION OF TIME

In the computation of time, where the period provided by these conditions is not less than three days and not more than seven days, the following days shall not be included: Saturday, Sunday and any recognised Public Holidays.

 

SECTION SEVENTEEN

TIME LIMIT FOR CLAIMS

 

  1. Whether a claim is for the loss or non-delivery of the whole of the consignment or loss from a package or from an improperly marked, improperly sealed or improperly packed consignment or for damage, deviation, misdelivery, delay or detention, no claim may be brought by the customer or owner or any other party unless it is received in writing, other than upon a consignment note or delivery docket, by COW accounts within seven working days from and including the commencement of transit.
  2. Without prejudice to the foregoing or any other condition herein, no claim may be brought by the customer or owner or any other party unless and until all of the charges from COW to the customer have been paid in full.