1
Definitions and interpretation
1.1
In these Conditions the following definitions apply:
Applicable Law
means all applicable laws, legislation, statutory instruments, regulations and governmental guidance having binding force whether local or national or international in any relevant jurisdiction;
Business Day
means a day other than a Saturday, Sunday or bank or public holiday when banks generally are open for non-automated business;
Conditions
means the Supplier’s terms and conditions of supply set out in this document;
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
means the agreement between the Supplier and the Customer for the supply and purchase of Services incorporating these Conditions and including all their respective schedules, attachments, annexures and statements of work;
Control
has the meaning given to it in section 1124 of the Corporation Tax Act 2010 OR means the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the management of the company and Controls, Controlled and under common Control shall be construed accordingly;
Controller
shall have the meaning given to it in applicable Data Protection Laws from time to time;
Customer
means the named party in the Contract which has agreed to purchase the Services from the Supplier;
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 Protection Supervisory Authority
means any regulator, authority or body responsible for administering Data Protection Laws;
Data Subject
shall have the meaning given to it in applicable Data Protection Laws from time to time;
Force Majeure
means an event or sequence of events beyond a party’s reasonable control after exercise of reasonable care to put in place robust back-up and disaster recovery arrangements 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 the Supplier’s or its suppliers’ workforce, but excluding the Customer’s inability to pay or circumstances resulting in the Customer’s inability to pay;
GDPR
means the General Data Protection Regulation, Regulation (EU) 2016/679;
International Organisation
shall have the meaning given to it in applicable Data Protection Laws from time to time;
Location
means the address or addresses for performance of the Services as set out in the Order;
Personal Data
shall have the meaning given to it in applicable Data Protection Laws from time to time;
Personal Data Breach
shall have the meaning given to it in applicable Data Protection Laws from time to time;
Price
has the meaning set out in clause 3.1;
Services
means the Services to be performed by the Supplier for the Customer in accordance with the Contract to comprise of removal of waste from the Location and disposal of that waste;
Specification
means the description or Documentation provided for the Services set out or referred to in the Contract;
Sub-Processor
means any agent, sub-contractor or other third party (excluding its employees) engaged by the Supplier for carrying out any processing activities on behalf of the Customer in respect of the Protected Data;
Supplier
Means Senior Waste Removals Limited;
Supplier Personnel
means all employees, officers, staff, other workers, agents and consultants of the Supplier and any of their sub-contractors who are engaged in the performance of the Services from time to time;
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
In these Conditions, unless the context requires otherwise:
1.2.1
a reference to the Contract includes these Conditions and their respective schedules, appendices and annexes (if any);
1.2.2
any clause, schedule or other headings in these Conditions is included for convenience only and shall have no effect on the interpretation of the Conditions;
1.2.3
a reference to a ‘party’ includes that party’s personal representatives, successors and permitted assigns;
1.2.4
a reference to 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;
1.2.5
a reference to a ‘company’ includes any company, corporation or other body corporate, wherever and however incorporated or established;
1.2.6
a reference to a gender includes each other gender;
1.2.7
words in the singular include the plural and vice versa;
1.2.8
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;
1.2.9
a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form;
1.2.10
a reference to legislation is a reference to that legislation as in force at the date of the Contract OR 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 the Contract;
1.2.11
a reference to legislation includes all subordinate legislation made as at the date of the Contract OR from time to time under that legislation; and
1.2.12
a reference to any English action, remedy, method of judicial proceeding, court, official, legal document, legal status, legal doctrine, legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to the English equivalent in that jurisdiction.
2
Application of these conditions
2.1
These Conditions apply to and form part of the Contract between the Supplier and the Customer. They supersede any previously issued terms and conditions of purchase or supply.
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 the Supplier 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 Supplier and the Customer respectively.
2.4
Each Order by the Customer to the Supplier shall be an offer to purchase Services subject to the Contract including these Conditions.
2.5
If the Supplier is unable to accept an Order, it shall notify the Customer as soon as reasonably practicable.
2.6
The offer constituted by an Order shall remain in effect and be capable of being accepted by the Supplier for 14 Business Days from the date on which the Customer submitted the Order, after which time it shall automatically lapse and be withdrawn.
2.7
The Supplier 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:
2.7.1
the Supplier’s written acceptance of the Order; or
2.7.2
the Supplier performing the Services or notifying the Customer that they are ready to be performed (as the case may be).
2.8
Rejection by the Supplier of an Order, including any communication that may accompany such rejection, shall not constitute a counter-offer capable of acceptance by the Customer.
2.9
The Supplier 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.
2.10
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:-
3.1.1
be as advised by the Supplier upon attendance at the Location providing that the quantity of waste to be removed is immediately evident upon attendance;
3.1.2
be as advised by the Supplier once the extent of the waste to be removed is clear;
3.1.3
be determined by the loading time and weight of the waste to be removed. Should performance of the Services exceed the original estimated loading times or the waste exceed the original estimated weight at the time the Price is advised then the Customer will be charged accordingly at £50 per additional hour and 0.22 pence per additional kilo.
3.2
The Prices are exclusive of:
3.2.1
Insurance, and all other related charges or taxes or describe relevant elements of the services which are not included in the standard price which shall be charged in addition at the Supplier’s standard rates, and
3.2.2
VAT (or equivalent sales tax).
3.3
The Customer shall pay any applicable VAT to the Supplier on receipt of a valid VAT invoice.
3.4
The Supplier may increase the Prices with immediate effect by verbal notice to the Customer where there is an increase in the direct cost to the Supplier of supplying the relevant Services and which is due to any factor beyond the control of the Supplier.
4
Payment
4.1
The Supplier shall invoice the Customer for the Services in full upon completion of provision of the Services included in the Order.
4.2
The Customer shall pay a deposit of £ 25 plus VAT prior to the Supplier attending at the Location if the location is within 10 miles of the Supplier and £40 plus VAT if over 10 miles away. The balance of all invoices shall be paid in full by the Customer to the Supplier’s Personnel upon completion of the Services and prior to the Supplier’s Personnel leaving the Location:
4.2.1
to the bank account nominated by the Supplier or to the Supplier’s Personnel direct.
4.3
Time of payment is of the essence. The Supplier’s Personnel will be unable to leave the Location until payment has been made and confirmed.
5
Cancellation
5.1.
The deposit paid by the Customer shall be forfeited should:
5.1.1
the Customer cancel the Order
5.1.2
the Supplier be unable to provide the Services upon attending the Location for whatever reason.
6
Performance
6.1
The Services shall be performed by the Supplier at the Location on the date/(s) agreed with the Customer.
6.2
The Services shall be deemed performed on completion of the performance of the Services as specified by the Customer.
6.3
The Supplier may perform the Services in instalments. Any delay or defect in an instalment shall not entitle the Customer to cancel any other instalment.
6.4
Time of performance of the Services is not of the essence. The Supplier shall use its reasonable endeavours to meet estimated dates for performance, but any such dates are indicative only.
6.5
When the Supplier attends at the Location to provide the Services:
6.5.1
the waste to be removed should be outside and ready for collection.
6.5.2
should the Customer be unable to comply with paragraph 6.5.1 then the Supplier may enter the Location however this will be at the Customer’s risk and the Supplier shall not be responsible or liable for any damages.
6.5.3
the Supplier will only work in a safe environment. If any of the Supplier’s Personnel become aware of or suspect there to be any asbestos, hazardous waste or toxic substances at the Location which may place them or the general public at risk they will follow HSE guidelines and be unable to complete the performance of the Services.
6.6
The Supplier shall not be liable for any delay in or failure of performance caused by:
6.6.1
the Customer’s failure to make the Location available;
6.6.2
the Customer’s failure to prepare the Location in accordance with the Supplier’s instructions OR as required for the performance of the Services;
6.6.3
the Customer’s failure to provide the Supplier with adequate instructions for performance or otherwise relating to the Services;
6.6.4
Force Majeure.
6.7
Any waste removed from the Location by the Supplier prior to cessation of the Services, for the reasons referred to in clause 6, shall be chargeable to the Customer.
7
Warranty
7.1
The Supplier warrants that, at the time of performance, the Services shall:
7.1.1
conform in all material respects to their description;
7.1.2
be supplied with reasonable care and skill within the meaning of the Supply of Goods and Services Act 1982, Part II s 13; and
7.2
The Customer warrants that it has provided the Supplier with all relevant, full and accurate information as to the Customer’s business and needs.
7.3
As the Customer’s sole and exclusive remedy, the Supplier shall, at its option, remedy, re-perform or refund the Services that do not comply with clause 7.1, provided that:
7.3.1
the Customer serves a written notice on the Supplier not later than five Business Days from performance in the case of defects discoverable by a physical inspection; and
7.3.2
such notice specifies that some or all of the Services do not comply with clause 7.1 and identifies in sufficient detail the nature and extent of the defects; and
7.3.3
the Customer gives the Supplier a reasonable opportunity to examine the claim of the defective Services.
7.4
The provisions of these Conditions shall apply to any Services that are remedied or re-performed with effect from performance of the remedied or re-performed Services.
7.5
Except as set out in this clause 7:
7.5.1
the Supplier gives no warranties and makes no representations in relation to the Services; and
7.5.2
shall have no liability for their failure to comply with the warranty in clause 7.1,
and all warranties and conditions (including the conditions implied by ss 12–16 of the Supply of Goods and Services Act 1982), whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.
8
Indemnity and insurance
8.1
The Customer shall indemnify, and keep indemnified, the Supplier from and against any losses, damages, liability, costs (including legal fees) and expenses incurred by the Supplier as a result of or in connection with the Customer’s breach of any of the Customer’s obligations under the Contract.
8.2
The Customer shall have in place contracts of insurance with reputable insurers incorporated in the United Kingdom or another country by agreement in writing with the Supplier to cover its obligations under these Conditions. On request, the Customer shall supply, so far as is reasonable, evidence of the maintenance of the insurance and all of its terms from time to time applicable. The Customer shall on request assign to the Supplier the benefit of such insurance.
9
Limitation of liability
9.1
The extent of the parties’ 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 9.
9.2
Subject to clauses 9.5 and 9.6, the Supplier’s total liability shall not exceed the sum of £[insert].
9.3
Subject to clauses 9.5 and 9.6, the Supplier shall not be liable for consequential, indirect or special losses.
9.4
Subject to clauses 9.5 and 9.6, the Supplier shall not be liable for any of the following (whether direct or indirect):
9.4.1
loss of profit;
9.4.2
loss or corruption of data;
9.4.3
loss of use;
9.4.4
loss of production;
9.4.5
loss of contract;
9.4.6
loss of opportunity;
9.4.7
loss of savings, discount or rebate (whether actual or anticipated);
9.4.8
harm to reputation or loss of goodwill;
9.4.9
loss due to disposal of waste which the Supplier’s Personnel have been instructed by the Customer to remove from the Location.
9.5
The limitations of liability set out in clauses 9.2 to 9.4 shall not apply in respect of any indemnities given by either party OR the Customer under the Contract.
9.6
Notwithstanding any other provision of the Contract, the liability of the parties shall not be limited in any way in respect of the following:
9.6.1
death or personal injury caused by negligence;
9.6.2
fraud or fraudulent misrepresentation;
9.6.3
any other losses which cannot be excluded or limited by Applicable Law;
9.6.4
any losses caused by wilful misconduct.
10
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 days, either party may terminate the Contract by written notice to the other party.
11
Termination
11.1
The Supplier 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:
11.1.1
the Customer commits a material breach of Contract and such breach is not remediable;
11.1.2
the Customer commits a material breach of the Contract which is capable of being remedied and such breach is not remedied within 14 days of receiving written notice of such breach;
11.1.3
the Customer has failed to pay any amount due under the Contract on the due date; or
11.1.4
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.
11.2
The Supplier may terminate the Contract at any time by giving notice in writing to the Customer if the Customer:
11.2.1
stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;
11.2.2
is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if the Supplier reasonably believes that to be the case;
11.2.3
becomes the subject of a company voluntary arrangement under the Insolvency Act 1986;
11.2.4
becomes subject to a moratorium under Part A1 of the Insolvency Act 1986;
11.2.5
becomes subject to a restructuring plan under Part 26A of the Companies Act 2006;
11.2.6
becomes subject to a scheme of arrangement under Part 26 of the Companies Act 2006;
11.2.7
has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;
11.2.8
has a resolution passed for its winding up;
11.2.9
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;
11.2.10
suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;
11.2.11
is subject to any events or circumstances analogous to those in clauses 11.2.1 to 11.2.10 in any jurisdiction;
11.2.15
takes any steps in anticipation of, or has no realistic prospect of avoiding, any of the events or procedures described in clauses 11.2.1 to 11.2.11 including giving notice for the convening of any meeting of creditors, issuing an application at court or filing any notice at court, receiving any demand for repayment of lending facilities, or passing any board resolution authorising any steps to be taken to enter into an insolvency process.
11.3
If the Customer becomes aware that any event has occurred, or circumstances exist, which may entitle the Supplier to terminate the Contract under this clause 11, it shall immediately notify the Supplier in writing.
11.4
Termination or expiry of the Contract shall not affect any accrued rights and liabilities of the Supplier at any time up to the date of termination.
12
Notices
12.1
Any notice or other communication given by a party under these Conditions shall:
12.1.1
be in writing and in English;
12.1.2
be signed by, or on behalf of, the party giving it except for notices sent by email; and
12.1.3
be sent to the relevant party at the address set out in the Contract
12.2
Notices may be given, and are deemed received:
12.2.1
by hand: on receipt of a signature at the time of delivery;
12.2.2
by email : on receipt of a delivery email from the correct address.
12.3
Any change to the contact details of a party as set out in the Contract shall be notified to the other party in accordance with clause 12.1 and shall be effective:
12.3.1
on the date specified in the notice as being the date of such change; or
12.3.2
if no date is so specified, 2 Business Days after the notice is deemed to be received.
12.4
All references to time are to the local time at the place of deemed receipt.
12.5
This clause does not apply to notices given in legal proceedings or arbitration.
13
Cumulative remedies
The rights and remedies provided in the Contract for the Supplier only are cumulative and not exclusive of any rights and remedies provided by law.
14
Time
Unless stated otherwise, time is of the essence of any date or period specified in the Contract in relation to the Customer’s obligations only.
15
Further assurance
The Customer shall at the request of the Supplier, and at the Customer’s own cost, do all acts and execute all documents which are necessary to give full effect to the Contract.
16
Entire agreement
16.1
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.
16.2
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.
16.3
Nothing in these Conditions purports to limit or exclude any liability for fraud.
17
Variation
No variation of the Contract shall be valid or effective unless it is in writing, refers to the Contract and these Conditions and is duly signed or executed by, or on behalf of, each party.
18
Assignment
18.1
The Customer may not assign, subcontract or encumber any right or obligation under the Contract, in whole or in part, without the Supplier’s prior written consent, such consent not to be unreasonably withheld or delayed OR which it may withhold or delay at its absolute discretion.
19
Equitable relief
The Customer recognises that any breach or threatened breach of the Contract may cause the Supplier irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages available to the Supplier, the Customer acknowledges and agrees that the Supplier is entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.
20
Severance
20.1
If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Contract shall not be affected.
20.2
If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with the minimum such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.
21
Waiver
21.1
No failure, delay or omission by the Supplier in exercising any right, power or remedy provided by law or under the Contract shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
21.2
No single or partial exercise of any right, power or remedy provided by law or under the Contract by the Supplier shall prevent any future exercise of it or the exercise of any other right, power or remedy by the Supplier.
22
Compliance with law
The Customer shall comply with Applicable Law and shall maintain such licences, authorisations and all other approvals, permits and authorities as are required from time to time to perform its obligations under or in connection with the Contract.
23
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 and of the Schedule shall prevail to the extent of the conflict.
24
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).
25
Third party rights
25.1
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.
26
Governing law
The Contract and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.
27
Jurisdiction
The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation (including non-contractual disputes or claims).
The Schedule
Customer specific provisions
Date:
Customer: [insert full registered company name and trading name (if any) and registered number, place of registration, VAT number, registered or supervisory body]
Name:
Address: [registered office address]
Contact:
Supplier
Name: [insert full registered company name and trading name (if any) and registered number, place of registration]
Address: [registered office address]
Contact:
Location:
Services
| Reference | Services | Description | Price |
Performance dates/periods
The terms and conditions which apply to and govern this Order are the Conditions. The parties agree that all other terms and conditions are expressly excluded.
The Customer has read and accepts the Order and Contract subject to the Conditions above.