1. Interpretation
1.1 Definitions:
Applicable Laws
all applicable laws, statutes, regulations and codes from time to time in force.
Business Day
a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Charges
the charges payable by the Customer for the supply of the Services in accordance with clause 5.
Commencement Date
has the meaning set out in clause 2.1.
Conditions
these terms and conditions as amended from time to time in accordance with clause 13.5.
Contract
the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.
Control
shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of Control shall be construed accordingly.
Country
The applicable country in which the Services are being performed (ie, either England and Wales or Scotland).
Customer
the person or firm who purchases Services from the Supplier.
Customer Default
has the meaning set out in clause 4.2.
Data Protection Legislation
the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications)
Equipment
means that equipment set out in the Order Form.
Intellectual Property Rights
patents, rights to inventions, copyright and related rights, trademarks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case, whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order
the Customer’s order for Services as set out in the Supplier’s Order Form.
Order Form
the Order Form attached to these Conditions and signed by both parties.
Premises
means the Customer’s premises set out in the Order Form.
Services
the services, supplied by the Supplier to the Customer as set out in the Specification.
Specification
the description or specification of the Services provided in writing by the Supplier to the Customer and as set out in the Order Form.
Supplier
As specified on the Order Form, one of either (j) Associated Waste Management Limited, registered in England and Wales with company No. 04092555 or (ii) Scotwaste Recycling Limited, registered in England and Wales with company No 02551069, iii) [New Earth Solutions (West) Limited, registered in England and Wales with company No. 06968057, iv) Scotwaste Recycling Limited registered in Scotland, Company No. SC583479 .
Waste
means the waste as set out in the Order Form.
1.2 Interpretation:
1.2.1 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
1.2.2 Any phrase introduced by the terms including, include, in particular, or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
1.2.3 A reference to writing or written includes fax and email.
2. Basis of contract
2.1 The Order shall only be deemed to be accepted when the Supplier signs the Order Form at which point and on which date the Contract shall come into existence (Commencement Date) for an initial period of 12 months from the Commencement Date (Initial Period) and thereafter until terminated in accordance with clause 11.
2.2 Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.3 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.4 Any quotation given by the Supplier shall not constitute an offer and is only valid for a period of 20 Business Days from its date of issue.
3. Supply of Services
3.1 The Supplier shall supply the Services to the Customer in accordance with the Specification in all material respects.
3.2 The Supplier shall use all reasonable endeavours to meet any performance dates specified in the Order Form, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 The Supplier shall have the right to make any changes to the Services which are necessary to comply with any Applicable Laws or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
3.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
3.5 The Supplier shall use reasonable endeavours to observe all health and safety and security requirements that apply at the Customer’s premises and that have been previously communicated to it (per clause 4.1.8), provided that it shall not be liable under this agreement if, as a result of such observation, it is in breach of any of its obligations under this agreement
4. Customer’s obligations
4.1 The Customer shall:
4.1.1 ensure that the terms of the Order and any information it provides in the Specification are complete and accurate;
4.1.2 co-operate with the Supplier in all matters relating to the Services;
4.1.3 provide the Supplier, its employees, agents, consultants and subcontractors, with access, in a timely manner, to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier;
4.1.4 provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is accurate and complete in all material respects;
4.1.5 prepare the Customer’s Premises for the supply of the Services;
4.1.6 obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start;
4.1.7 comply with any additional obligations as set out in the Order Form.
4.2 inform the Supplier of all health and safety and security requirements that apply at [any of] the Customer’s premises. If the Customer wishes to make a change to those requirements which will materially affect the provision of the Services, it must promptly inform and agree with Supplier.If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
4.2.1 the Supplier shall without limiting its other rights or remedies 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 to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
4.2.2 the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 4.2; and
4.2.3 the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
5. Visits Schedule
5.1 The Supplier reserves the right to change the visit days to meet operational requirements which were possible will be notified to the Customer in advance.
5.2 If through operational difficulties the Supplier is not able to visit the Premises on the scheduled day the Supplier reserves the right to re-schedule the visit to the earliest possible opportunity without liability to the Customer.
6. Responsibility for Equipment
6.1 Any Equipment supplied by the Supplier shall at all times remain the property of the Supplier.
6.2 The Customer shall be responsible for:
6.2.1 The siting of the Equipment within the Premises and for any loss or damage caused to the Equipment whilst it is at the Premises and is not in the care or control of the Supplier;
6.2.2 Ensuring that the Equipment is not over or improperly loaded;
6.2.3 Ensuring that the Equipment always remains within the Premises and is not under any circumstances placed on a public highway;
6.2.4 Maintaining a suitable and safe means of access to and egress from the Equipment at the Premises for the Supplier’s vehicles and employees or agents; and
6.2.5 Effecting adequate insurance cover for the Equipment for its full replacement value against the risk of loss or damage.
7. Safety
7.1 The Customer shall be wholly responsible for the safety of all persons (including the employees and agents of the Supplier) entering the Premises where the Equipment is sited.
7.2 The Customer shall bear all risks in connection with siting, loading and use of the Equipment.
7.3 The Supplier undertakes to comply with such reasonable safe working procedures at the Premises supplied in writing to the Supplier and acknowledged in writing by an authorised officer of the Supplier.
8. Waste
8.1 The Customer undertakes that the Waste placed in the Equipment for collection by the Supplier shall accord with the description in the Specification and will not be subject to the control of Pollution (Special Waste) Regulations 1980 or other Special Control Regulations and will not contain explosive, highly inflammable, toxic or polluting material.
8.2 The Customer undertakes to conform with the duties laid down in the Collection and Disposal of Waste Regulations 1988, the Control of Pollution Act 1974, the Environmental Protection Act 1990 and the Environment Act 1995 or any statutory modification or re-enactments thereof and all other statutory and regulatory requirements relating to the disposal of the Waste.
8.3 This Contract provides for the collection of containerised Waste only and the Supplier has no contractual obligation to remove from the Premises any Waste which has not been placed within the Equipment. To assist the Customer in maintaining clean and tidy Premises and avoiding any environmental problems associated with loose Waste the Supplier will be prepared to assess the removal of occasional loose Waste subject to the Customer paying an additional price therefore as specified and invoiced by the Supplier.
9. Charges and payment
9.1 The Charges for the Services shall be set out in the Order Form.
9.2 The Supplier reserves the right to increase the Charges at any time during the Contract to reflect any increase in costs to the Supplier which is due to any factor beyond the Supplier's control or upon notice of which will be given to the Customer at the earliest possible opportunity.
9.3 The Supplier shall invoice the Customer on completion of the Services, or in arrears, in advance, or by direct debit as notified by the Supplier.
9.4 The Customer shall pay each invoice submitted by the Supplier:
9.4.1 within 30 days of the date of the invoice; and
9.4.2 in full and in cleared funds to a bank account nominated in writing by the Supplier or by cheque and time for payment shall be of the essence of the Contract.
9.5 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value-added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier 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.
9.6 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 3% per cent per annum above Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
9.7 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
10. Limitation of liability: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
10.1 Nothing in the Contract shall limit or exclude the Supplier’s liability for:
10.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
10.1.2 fraud; or
10.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
10.2 Subject to clause 10.1, the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
10.2.1 loss of profits;
10.2.2 loss of sales or business;
10.2.3 loss of agreements or contracts;
10.2.4 loss of anticipated savings;
10.2.5 loss of use or corruption of software, data or information;
10.2.6 loss or damage to goodwill; and
10.2.7 any indirect or consequential loss.
10.3 Subject to clause 8.1, the Supplier’s total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to 150% of the total Charges paid under the Contract.
10.4 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
10.5 This clause 10 shall survive termination of the Contract.
11. Termination
11.1 Without limiting its other rights or remedies, the Customer may terminate the Contract by giving to the Supplier 2 months’ written notice to terminate, such notice expiring on or after the Initial Period
11.2 Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
11.2.1 the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;
11.2.2 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceases to carry on business or if the step or action is taken in another jurisdiction, in connection with an analogous procedure in the relevant jurisdiction;
11.2.3 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
11.2.4 the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
11.3 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:
11.3.1 the Customer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment; or
11.3.2 there is a change of control of the Customer.
11.4 Without limiting its other rights or remedies, the Supplier may suspend provision of the Services under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 11.2.2 to clause 11.2.4 or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
12. Data Protection
12.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 12 is in addition to and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation 12.2
13. Consequences of termination
On termination of the Contract for any reason:
13.1.1 the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt. In the event the Customer terminates this Contract during the Initial period it shall pay liquidated damages (which the parties agree is a genuine pre-estimate of loss) in the sum of the amount that would have been payable under this Contract by the Customer during the period from termination to the end of the Initial Period;
13.1.2 the Customer shall return all of the Equipment. If the Customer fails to do so, then the Supplier may enter the Customer’s premises at any time and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safekeeping and will not use them for any purpose not connected with this Contract;
13.1.3 the Customer shall be responsible for any costs incurred by the Supplier in repairing or replacing any damaged equipment;
13.1.4 the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, 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; and
13.1.5 clauses which expressly or by implication survive termination shall continue in full force and effect.
14. General
14.1 Force majeure. Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
14.2 Assignment and other dealings.
14.2.1 The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
14.2.2 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.
14.3 Confidentiality.
14.3.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 14.3.2.
14.3.2 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 14.3; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
14.3.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
14.4 Entire agreement.
14.4.1 This 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.
14.4.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
14.5 Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
14.6 Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:
14.6.1 waive that or any other right or remedy; or
14.6.2 prevent or restrict the further exercise of that or any other right or remedy.
14.7 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
14.8 Notices.
14.8.1 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 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 or other next working day delivery service, commercial courier, fax or email.
14.8.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 14.8.1; if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am 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 or email, one Business Day after transmission.
14.8.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
14.9 Third parties. No one other than a party to the Contract shall have any right to enforce any of its terms.
14.10 Governing law. The Contract 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 England and Wales.
14.11 Jurisdiction. Each party irrevocably agrees that the courts of Country shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
