Acuity Environmental Services Terms and Conditions of Trading
1.1 In these conditions:
means an animal by-product as defined by Relevant Law
means the charges for the performance of the Service as more particularly set out in the Waste Management Agreement/ quotation
means the site or sites at which the Service is to be provided by the Company as set out in the Waste Management Agreement/ quotation
means the standard terms and conditions of trading set out in this document and any terms and conditions set out in the Waste Management Agreement/ quotation
means Acuity Environmental Services Limited (Company number 10322566) whose registered office is situated at No. 3, Manson Drive, Cradley Heath, West Midlands, B64 6SD.
means the date of commencement of the Contract as specified overleaf
means the contract for waste management and associated environmental services as recorded in the Waste Management Agreement/ quotation and any agreed variations or additions
means the person entering into the Contract to purchase the Service as set out in the Waste Management Agreement/ quotation
means any equipment specified in the Waste Management Agreement/ quotation or which is provided by the Company to the Customer for the purposes of the provision of the Service
means the waste excluded from the Service and specified overleaf
means hazardous waste as defined by Relevant Law
means inert waste as defined by Relevant Law
MINIMUM CONTRACT PERIOD
means the Minimum Contract Period specified in the Waste Management Agreement/ quotation or where none is stated one year
MINIMUM NOTICE PERIOD
means the minimum notice period specified in the Waste Management Agreement/ quotation or where none is stated three months
means the Waste to be disposed of by the Company pursuant to the Contract and forming the subject matter of the Service
means any statute, European Community Directive or the requirements of any government department, local authority or other public or competent authority, and guidelines contained in government waste management papers and codes of practice issued by the government for the waste disposal industry
means the waste management and associated environmental services to be performed by the Company pursuant to the Contract
means special waste as defined in the Special Waste Regulations 1996 or any other Relevant Law
means any representative sample of the Waste supplied by the Customer to the Company or, if no such sample has been supplied, the description of the Waste in the Contract
means Permitted Waste (including any consignment of the Permitted Waste) which the Company is to collect and dispose of in accordance with these Conditions as part of the Service but excluding any Excluded Waste
WASTE MANAGEMENT AGREEMENT
means any document headed Waste Management Agreement as signed by the Customer to which these terms and conditions are attached or in the absence of any such written document the terms set out in any quotation provided by the Company to the Customer
includes fax and email and “Written” shall be construed accordingly
2. BASIS OF THE CONTRACT
2.1 The Customer engages the Company to perform and the Company shall perform the Service.
2.2 These Conditions shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made by the Customer. They shall also govern in the absence of any written agreement between the Company and the Customer any subsequent orders placed by the Customer with the Company for the provision by the Company of goods and services.
2.3 The Company’s employees or agents are not authorised to make any representations or give any advice or recommendations concerning the Service unless confirmed by the Company in Writing. In entering into the Contract the Customer acknowledges that it does not rely on, and waives any claim for breach of any such representations advice or recommendations which are not so confirmed.
2.4 In the event of any conflict between those terms set out in the Waste Management Agreement/ quotation and these terms and conditions those set out in the Waste Management Agreement/ quotation shall prevail.
3. ORDERS AND SPECIFICATIONS
3.1 The Customer warrants to the Company that any Waste shall correspond with the Specification and that any waste shall not be Excluded Waste and, without prejudice to Condition 3.2, the Company shall indemnify and keep indemnified the Company against all loss, damages, costs and expenses awarded against or incurred by the Company (including, without limitation, vehicle demurrage) in connection with any such failure to correspond.
3.2 If the Company becomes aware that any waste fails to correspond with Specification or is Excluded Waste, whether before or after collection, the Company reserves the right to reject such waste and return the same to the Customer.
3.3 The Customer may not cancel the Contract except in accordance with the terms of the Contract and the Customer shall indemnify the Company in full against all loss (including loss of profit), costs (including the cost of all labour and materials used) damages, charges and expenses incurred by the Company as a result of cancellation.
4.1 The price of the Service shall be calculated in accordance with the Charges. The price is based upon the loading and unloading of any Waste taking a maximum of 1 hour at each of the point of collection and disposal of the Waste. If the loading or unloading of Waste takes in excess of 1 hour and such delay is not due to any factor under the control of the Company, without prejudice to the generality of Condition 4.2, the Company reserves the right to increase the price to reflect such delay.
4.2 The Company reserves the right, by giving notice to the Customer at any time to increase the price to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company including, without limitation, any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate information or instructions or any failure of any waste to correspond with Specification.
4.3 The price is exclusive of any applicable value added tax and any excise duty payable on hydrocarbon based waste, which the Customer shall be additionally liable to pay to the Company.
5. CUSTOMER’S RESPONSIBILITIES
5.1 The Customer warrants to the Company that all drummed and packaged Waste shall be in a sealed and safe condition for handling and transportation and that each container of Waste shall be clearly labelled in accordance with Relevant Law.
5.2 The Customer shall be responsible for determining whether the Waste is or includes a dangerous substance as defined under the Carriage of Dangerous Goods (Classification, Packaging and Labelling) and Use of Transportable Pressure Receptacles Act 1996 as amended and the Customer shall be responsible for compliance with all relevant requirements arising from such classification.
5.3 The Customer shall be responsible for determining whether the Waste is or includes Special Waste and the Customer shall be responsible for compliance with all relevant requirements arising from such classification.
5.4 The Customer shall at all times allow the Company, it employees or agents and its vehicles access to the Equipment to empty or replace it and on termination of the Contract remove it from the Customer’s site.
6.1 The Customer will conform to any statutory enactments and regulations any bye laws and regulations or other statutory authorities which apply to the Equipment.
6.2 The Equipment shall remain the property of the Company and the Company shall retain title of the Equipment at all times. The Customer shall have no right of lien over the Equipment.
6.3 The Equipment shall only be used at the Collection Site and shall only be used by the Customer.
6.3.1 The Customer will indemnify the Company against any loss, theft or damage to the Equipment whilst the Equipment is on the Customer’s premises and or the Customers designated site
6.4 The Customer shall not:-
6.4.1 overload or overfill the Equipment;
6.4.2 set fire to the contents of the Equipment;
6.4.3 add or attach to the Equipment any painting, sign writing, lettering or advertising;
6.5 The Customer agrees, represents and warrants to the Company that the Equipment is suitable to contain and transport the Waste in the quantities specified and that the Customer shall fully insure the Equipment whilst the Equipment is on either the Customer’s premises or Customers designated site..
7. TERMS OF PAYMENT
7.1 The Company shall invoice the Customer in respect of the Charges upon completion of the Service or where the Service is by way of regular collections of Waste upon the collection of each and every consignment of Waste in accordance with the Contract, unless the Customer wrongfully fails to allow the Company to perform the Service in which event the Company shall be entitled to invoice the Customer for its Charges at any time after the Company has notified the Customer that it is in a position to perform the Service.
7.2 The Customer shall pay each invoice (without any deduction or set off whatsoever) within 30 days of the end of the month of the Company’s invoice and the Company shall be entitled to recover the Charges, notwithstanding that performance of the Service may not have taken place. The time of payment shall be of the essence of the Contract.
7.3 If the Customer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to:
7.3.1 suspend all or any further services to the Customer made under that or any other contract with the Customer and in such event the Customer shall not be released from its obligations to the Company under that or any other contract or cancel the Contract or any other contract with the Customer and to claim damages from the Customer for breach of contract;
7.3.2 charge interest at the rate of 8% over the base rate of the Bank of England from the date payment fell due to the date of payment, pursuant to the Late Payment of Commercial Debts (Interest) Act 1998, as amended;’
7.3.3 charge compensation for each invoice late paid pursuant to the Late Payment of Commercial Debts Regulations 2002, as amended’
7.3.4 debt recovery costs for our debt recovery company, pursuant to the Late Payment of Commercial Debts Regulations 2013.
8.1 Performance of the Service, including collection of any Waste, shall be made at the Collection Site.
8.2 Any dates quoted for performance of the Service or any part thereof are approximate only and the Company shall not be liable for any delay in performance howsoever caused. Time for collection shall not be of the essence unless previously agreed by the Company in Writing.
8.3 Where the Service is to be performed in consignments, each consignment shall constitute a separate contract and failure by the Company to perform any one or more of the consignments in accordance with these Conditions or any claim by the Customer in respect of any one or more consignments shall not entitle the Customer to treat the Contract as a whole as repudiated.
8.4 If the Company fails to perform the Service (or any consignment) for any reason other than any cause beyond the Company’s reasonable control or the Customer’s fault, and the Company is accordingly liable to the Customer, the Company’s liability shall be limited to the additional cost above the Charges, if any, which the Customer would need to incur (in the cheapest available market) to obtain performance of the Service by a third party.
Page 2 of 2 Release date: 01/09/2015
9. WARRANTIES AND LIABILITIES
(THE CUSTOMER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF THIS CLAUSE)
9.1 Subject to the Conditions set out below, the Company warrants that the Service shall be carried out with reasonable care and skill.
9.2 Subject as expressly provided in these Conditions, and except where the Customer is a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded, provided that nothing in these Conditions shall exclude or limit the liability of either party for fraud.
9.3 Except in respect of death or personal injury caused by the Company’s negligence, the Company’s maximum liability to the Customer arising by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Company, its employees or agents or otherwise) which arise out of or in connection with the Service shall be limited as provided in 9.4 below.
9.4 Copies of the Company’s insurance policies are available for inspection at the Company’s registered office. The entire liability of the Company under or in connection with the Contract in respect of any loss or damage to the Customer arising from risks covered by such policies of insurance shall not exceed £2,000,000 except as expressly provided in these Conditions. The entire liability of the Company under or in connection with the Contract in respect of any loss or damage to the Customer arising from risks not covered by such policies of insurance shall not exceed a sum equal to three times the aggregate of Charges paid by the Customer to the Company in the six month period prior to the event giving rise to the liability.
9.5 The Company shall not be liable to the Customer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Company’s obligations in relation to the Service, if the delay or failure was due to any cause beyond the Company’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Company’s reasonable control:
9.5.1 Act of God, explosion, flood, tempest, fire or accident;
9.5.2 War or threat of war, sabotage, insurrection, civil disturbance or requisition;
9.5.3 Acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
9.5.4 Import or export regulations or embargoes;
9.5.5 Strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Company or of a third party);
9.5.6 Difficulties in obtaining raw materials, labour, fuel, parts or machinery;
9.5.7 Power failure or breakdown in machinery.
9.6 If the Company is prevented from performance of its obligations for a continuous period in excess of three months, the Company may terminate the Contract forthwith on service of a Written notice on the Customer in which case the Company shall be entitled to be paid for all work prior to the date of termination and for any unavoidable commitments entered into by the Company prior to the date of such termination.
10.1 The Contract shall come into force on the Commencement Date and shall continue until terminated by either party by notice in Writing of not less than the Minimum Notice Period. Such notice to be void unless served within the period of three months following an anniversary of the Commencement Date. In any event a notice shall not be served so as to expire within the Minimum Contract Period.
10.2 The Company shall be entitled forthwith to terminate the Contract by Written notice to the Customer if the Customer fails to make any payment in accordance with this Contract or if any distress or execution shall be levied upon any of the Customer’s goods or if the Customer offers to make any arrangement with its creditors or the Customer is unable to pay its debts as they fall due or any resolution or petition to wind up the Customer (other than for the purpose of amalgamation or reconstruction without insolvency) shall be passed or presented or if a receiver administrator or manager shall be appointed over the whole or any part of the Customer’s business or assets or if the Customer shall suffer any analogous proceedings under foreign law.
10.3 The Company shall further be entitled forthwith to terminate the Contract by written notice to the Customer in the event of a material breach by the Customer of any term of the Contract which goes to the root or is the essence of this Contract where such a breach is not capable of remedy.
10.4 If this Contract terminates, the Customer shall immediately pay to the Company the full amount of all sums then due. Where the Service has been performed, but the price has not been paid, the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
10.5 Any rights to terminate the Contract shall be without prejudice to the other rights of the parties.
10.6 On termination of the Contract for any reason neither party shall (subject to the accrued rights of either party in respect of any breaches of the Contract) have any further obligation under the Contract to the other.
11.1 The Customer agrees to indemnify and keep indemnified the Company from and against all costs, claims, demands, liabilities, expenses, damages or losses (including without limitation consequential losses and loss of profit, and all interest, penalties and legal and other professional costs and expenses) arising out of or in connection with the Customer’s negligence, default or breach of the Contract.
12. SET OFF
12.1 The Customer agrees that the Company is hereby permitted to set off against any sum due to the Customer any sum which the Company may owe to:
12.1.1 any subsidiary of the Customer; or
12.1.2 any parent of the Customer; or
12.1.3 any other company which has any common shareholder with the Customer (12.1.1 to 12.1.3 together “Connected Companies”)
12.2 The Customer warrants that it is authorised by each and every one of the Connected Companies to grant to the Company the right set out in 12.1 above.
12.3 In so far as any signatory to these terms is also an officer of any one or more of the Connected Companies he or she is deemed to have accepted these terms on behalf of the Customer and each of the Connected Companies of which he or she is an officer.
12.4 In so far as the Customer is a shareholder of any one or more of the Connected Companies then the Customer in its capacity as such a shareholder accepts these terms on behalf of such Connected Companies.
12.5 The Customer acknowledges the Company’s right to set off any sums which the Customer owes to the Company against any sum owed by the Company to the Customer.
13. RESTRICTIONS ON THE CUSTOMER
(ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF THIS CLAUSE 13)
13.1 The Customer will not for the duration of the Contract and for a period of six months following performance of the Service without the prior consent of the Company in Writing directly or indirectly solicit or offer employment or engagement to any senior employee or sub-contractor of the Company who at the time of such action or during a period of six months immediately preceding such action was directly involved in the provision of the Service.
14.1 In the event of any dispute or difference arising between the Company and the Customer in connection with the Contract at least one member of the board of directors of each of the parties shall, within 3 days of a written request from either party to the other addressed to the managing director, meet in good faith in an effort to resolve the dispute without recourse to legal proceedings.
14.2 If such dispute or difference is not resolved as a result of such meeting, either party may by written notice at such meeting or served within 7 days from its conclusion refer the matter to an independent mediator agreed upon between them or in default of agreement within 14 days of notice under this clause 14.2 to be selected at the instance of either party by the President for the time being of the Law Society whose costs including the cost of appointment shall be paid by the parties as determined by the mediator and who shall be appointed on terms of reference to be agreed between the parties, with the aim of resolving the dispute or difference through structured negotiations.
14.3 Failing resolution of such dispute or difference, either of the parties may submit such dispute or difference to the English Courts.
15.1 The Company may perform any of its obligations or exercise any of its rights hereunder by itself or through any other member of its group, provided that any act or omission of any such other member shall be deemed to be the act or omission of the Company.
15.2 The Customer shall not be entitled to assign the whole or any part of its rights and/or obligations under the Contract without the prior written consent of the Company.
15.3 Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant on this provision to the party giving the notice. A notice shall be deemed to have been received, in the case of a facsimile, upon transmission and, in the case of a letter, forty eight hours after posting. In proving service by letter, it shall be sufficient to show that the envelope containing the notice was properly addressed and stamped and duly posted. In proving service by facsimile transmission, it shall be necessary only to produce a report confirming uninterrupted transmission to the recipient.
15.4 No waiver by the Customer of any breach of the Contract by the Company shall be considered as a waiver of any subsequent breach of the same or any other provision.
15.5 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby unless such provision goes to the root of the Contract
15.6 The Conditions shall constitute the entire agreement in relation to the Service and no modification or waiver thereof shall be valid unless made in Writing expressly for the purpose and signed by an authorised officer of the Customer and of the Company.
15.7 The Contract shall be governed by the laws of England and the Customer agrees to submit to the exclusive jurisdiction of the English courts.
15.8 A person who is not a party to this Contract shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to rely upon or enforce any term of this Contract provided that this does not affect any right or remedy which exists or is available apart from the Act.