Part B: General Commercial Waste Terms & Conditions
1. Definitions and interpretation
1.1 In this Agreement the following terms shall mean:
COMMENCEMENT DATE: means the date on which this contract is signed by an authorised representative for each party;
DELIVERY DATE: is the date of the first provision of Services by Kenny Waste Management;
DUTY OF CARE: the duty of care imposed by Part II of the Environmental Protection Act 1990 (as may be amended) (“EPA”);
INITIAL TERM: unless specified in Part A is 2 years from the Delivery Date;
PART A: the front page attached to this Part B;
SERVICE(S): the collection of Waste from the Site on the frequency set out in Part A and in accordance with any special instructions set out in Part A;
SITE: the Customer’s premises as detailed in Part A;
WASTE: waste other than special waste (as defined in the EPA).
1.2 This Agreement constitutes the entire agreement between the parties in respect of the Service, supersedes any previous arrangements relating to the same and prevails over any terms supplied by the Customer or implied by law, trade custom, practice or course of dealing.
1.3 This Part B shall prevail over Part A but only to the extent of any conflict
2.1 Subject to clauses 2.2 and 9, this Agreement shall commence and be binding on the parties with effect from the Commencement Date and continue for the duration of the Initial Term. Without prejudice to clause 9, on the last day of the Initial Term and each anniversary of the same (the “Renewal Date”) this Agreement shall be automatically extended for a further period of one (1) year on the same terms (each a “Subsequent Term”) unless the Customer has given Kenny Waste Management at least three (3) but not more than six (6) months’ written notice prior to the Renewal Date that it wishes to terminate the Agreement. Such notice must be sent by Royal Mail first class Recorded Delivery or equivalent in accordance with Clause 10.5. Failure to provide appropriate written notice to terminate this Agreement will be considered a material breach of this.
2.2 Kenny Waste Management reserves the right to terminate this Agreement before the Delivery Date by giving notice in writing to the Customer.
3.1 Kenny Waste Management shall, in consideration of the Fees payable pursuant to Clause 4 and subject to these terms and conditions, provide the Service for the duration of this Agreement.
3.2 Time shall not be of the essence for the provision of the Service by Kenny Waste Management.
4. Fees and Payment
4.1 Subject to the remainder of this Clause 4, the fee charged by Kenny Waste Management and payable by the Customer shall be the amount set out in Part A (“the Fees”).
4.2 VAT and Landfill Tax and any other duties taxes or levies relevant to or resulting from the provision by Kenny Waste Management of the Service will be added to the Fees and paid by the Customer at the rate prescribed from time to time.
4.3 On the first anniversary of the Delivery Date and each subsequent anniversary the Fees (as may have been varied pursuant to this Clause 4) shall be adjusted upwards by the percentage variation (if any) by which the most recently published All Items Index of the Official General Index of Retail Prices has increased over the Index published for the previous year.
4.4 The Fees may also be upwardly adjusted to take fairly into account any increase in Kenny Waste Management’s transport, operating, disposal or other costs incurred in providing the Services, technical changes, any new legislation or regulation or the implementation of or change in existing law legislation or regulation coming into effect after the date of this Agreement which results in an increase in Kenny Waste Management’s costs.
4.5 The Customer will pay Kenny Waste Management’s invoices within 30 days from the end of the month to which the invoice was issued (“Due Date”) without deduction or set off.
4.6 If the Customer fails to pay any amount by the Due Date then without prejudice to Clause 9;
a) that amount shall bear interest at 5% per annum above Kenny Waste Management’s bankers base rate at that time calculated on a daily basis from the Due Date until the full amount has been paid in cleared funds and Kenny Waste Management shall be entitled to suspend provision of the Service until such time; and
b) Kenny Waste Management shall be entitled to charge the Customer:
i) 40% of the Fees due in respect of all rentals, Duty of Care, collection and delivery charges and Services affected by the non payment; and
ii) £50 for non payment of a direct debit; and
iii) £10 for each reminder letter, fax, phone call and statement;
in each case by way of liquidated damages for the Customer’s breach of this Agreement which the parties agree represents a genuine pre-estimate of Kenny Waste Management’s loss arising from the breach.
5. Changes to the Services
5.1 Kenny Waste Management reserves the right to make changes to the times and dates of the provision of the Services in order to meet Kenny Waste Management operational requirements, and in order for Kenny Waste Management to develop and improve the Services. Where possible the Customer will be given notice thereof.
5.2 If Kenny Waste Management is unable to provide Services on a scheduled day, Kenny Waste Management reserves the right to re-schedule Services to the earliest possible opportunity without prior notice to the Customer.
5.3 If the Customer requires changes to the frequency or timing of collections or other changes to the Services it may put a request in writing. Kenny Waste Management shall use reasonable endeavours (but shall not be obligated) to comply with any such requests.
5.4 The maximum period is 14 days for “non account” customers and 28 days for “account customers”. It is the responsibility of the hirer to request the collection within the time. Failure to do so will result in unannounced collection and/or rental charges being incurred of £3.50 per day for Roll-On/Offs and £1.50 per day for all skips unless agreed in section 2 of the service agreement.
5.5 Any collections in excess of those specified in Part A or additional services agreed to be provided by Kenny Waste Management will be charged for (at Kenny Waste Management’s rates from time to time in force) in addition to the Fees.
5.6 In the event that the Customer requires fewer collections than are specified in Part A, the Customer shall not be entitled to any reduction of Fees.
6. Operational Issues
6.1 The Customer shall provide Kenny Waste Management with all such assistance as Kenny Waste Management reasonably requires including without limit by providing suitable unhindered access to the Site to enable Kenny Waste Management to perform Kenny Waste Management’s obligations under this Agreement. It is the Customer’s responsibility to provide all necessary keys and codes to access the site to Kenny Waste Management before the Delivery Date. If keys or codes are changed, they must be provided to Kenny Waste Management as soon as practicable. Kenny Waste Management reserves the right to suspend Services for a failure to comply with this Clause. Kenny Waste Management shall have no liability to the Customer for any failure to perform the Services if and to the extent that such failure is as a result of the Customer’s failure to comply with this clause, or third parties restricting access to the Site, including when the Customer fails to pre-notify Kenny Waste Management of a site closure due to a public holiday, bank holiday or for any other reason whatsoever.
6.2 Location of bins/containers and access routes for Kenny Waste Management shall be agreed before the Delivery Date and shall not be changed without Kenny Waste Management’s prior consent.
6.3 Any equipment supplied or left at the Site by Kenny Waste Management shall remain the property of Kenny Waste Management and the Customer shall at its sole cost keep any such equipment safe and maintained strictly in line with the manufacturer’s recommendations. Kenny Waste Management may charge the Customer for any damage (other than wear and tear or caused by Kenny Waste Management’s negligence or wilful default) to its equipment. The Customer shall not permit use or movement of any such equipment without Kenny Waste Management’s prior written consent. Kenny Waste Management reserves the right to remove any of its equipment from the Site at any time without notice.
6.4 Vehicles taking Waste from the Site shall be weighed on Kenny Waste Management’s (or a third party’s) weighbridges and the weight of the Waste recorded.
6.5 The Customer shall reimburse Kenny Waste Management for of its Wasted Costs in relation to scheduled Services not performed by Kenny Waste Management due to the Customer failing to provide access in accordance with Clause 6.1 “Wasted Costs” shall include management costs, attendance costs, loss of profit; staff time and any other cost, expense or loss which Kenny Waste Management can demonstrate results from the Customer’s failure to provide access.
6.6 The time allowed for loading/unloading is 15 minutes. If the vehicle is kept waiting for longer than this Kenny Waste Management reserves the right to charge waiting time.
6.7 It is the responsibility of the hirer to ensure that skips placed on the highway or public places have the permission of the local highway authority and are adequately lit and coned off in accordance with the Highways Act 1980. Kenny Waste Management can organise permits at an additional cost to the hirer.
7.1 The Customer shall ensure that all Waste complies with the EWC Code(s) detailed in Part A, the description accorded to it in any Transfer Note relating to it and in the written Waste Particulars to be provided by the Customer to Kenny Waste Management.
7.2 Title to Waste shall pass to Kenny Waste Management when it is (with authority) loaded onto a Kenny Waste Management vehicle. Kenny Waste Management shall not be obliged to accept, and title shall not pass in respect of, any Waste or material not complying with Clause 7.1 or which it is unwilling or legally unable to accept. In the event that Kenny Waste Management elects at its sole discretion to accept such Waste of material, then the Customer shall indemnity Kenny Waste Management from and against all costs, claims, demands and liabilities arising from (without limitations) any treatment, making safe or satisfactory disposal of the Waste or material undertaken by Kenny Waste Management.
7.3 The Customer shall clearly identify in the Waste Particulars any actual or potential hazard to health or to the environment presented by the Waste and shall supply all such information and documentation as Kenny Waste Management demands to comply with the law, indemnifying Kenny Waste Management against the consequences of any failure to do so.
7.4 The Customer warrants that it will comply with and shall procure that all persons handling Waste at the Site shall comply with the Duty of Care and all other applicable law/regulation. The Customer shall indemnify Kenny Waste Management from and against all costs, claims, demands and liabilities arising from any failure to do so.
8. Liability and Indemnity
8.1 The Customer shall indemnify Kenny Waste Management in respect of any liability, loss (including consequential loss) claim or proceedings in respect of death or personal injury or damage to any property arising from the operation of the Site or the loading/covering/containment of vehicles/Waste unless and only to the extent that this is due to Kenny Waste Management’s negligence.
8.2 Kenny Waste Management shall compensate damage caused to the Site by its negligence (subject to satisfactory evidence of damage fault and quantum) except where damage results from the following instructions given by the Customer or its personnel.
8.3 The Customer shall keep Kenny Waste Management indemnified against any losses, costs, expense, claims, damages, proceedings and liabilities suffered or incurred by Kenny Waste Management as a result of any breach of this Agreement by the Customer.
8.4 Kenny Waste Management shall in no circumstances be liable for any loss of profits or anticipated savings; loss of or damage to reputation or goodwill; loss of opportunity; wasted management or other staff time; losses or liabilities under or in relation to any other contract; in each case whether direct, indirect, special and/or consequential loss or damage; or for any other indirect, special and/or consequential loss or damage.
8.5 Except in the case of death or personal injury caused by negligence in respect of which Kenny Waste Management’s liability shall be unlimited, Kenny Waste Management’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the aggregate amount paid by the Customer under this Agreement in the 12 months prior to the event giving rise to the claim.
9 Termination and default
9.1 Kenny Waste Management may terminate this Agreement at any time without liability to the Customer on giving the Customer at least (1) months prior notice in writing.
9.2 The Customer may terminate this Agreement in accordance with Clause 2.1 only.
9.3 Kenny Waste Management may terminate this Agreement forthwith without liability to the Customer if:
a)The Customer breaches any obligation under this Agreement (including without limitation any purported termination which is not in accordance with Clause 2.1) and in the case of breaches capable of remedy fails to comply with the terms of any written notice giving particulars of the breach and requiring it to be remedied within the time period specified in the notice.
b) The Customer makes any composition or arrangement with creditors, goes into liquidation (other than a member’s voluntary liquidation) or has any distress of execution levied against it.
c) A winding up order is made against the Customer; a provisional liquidator is appointed to the Customer; the Customer passes a resolution for winding up; an administration order is made against the Customer or a receiver, receiver manager or administrative receiver is appointed over the whole or any part of the Customer’s undertaking or assets; or the Customer ceases or threatens to cease trading.
d) Any sum payable by the Customer to Kenny Waste Management remains unpaid on the fourteenth day following a notice in writing given by Kenny Waste Management to the Customer specifying that a sum is due and payable but remains unpaid.
In the event of a termination of this contract by Kenny Waste Management pursuant to Clause.
9.3, then without prejudice to any right of either party which may have accrued, including Kenny Waste Management’s right to be paid liquidated damages by the Customer, calculated to be 40% of the Fees due in respect of all remaining rentals, Duty of Care, collection and delivery charges and Services that would have been payable up until the end of the Initial Term or the Subsequent Term as appropriate, all rights and obligations of both parties shall cease.
10.1 No variation of this Agreement shall be effective unless in writing and signed on behalf of both parties.
10.2 Both parties shall be released from their respective obligations in the event that a party is prevented from carrying out its obligations by a cause beyond its reasonable control including where Kenny Waste Management’s waste disposal licence is revoked or amended preventing Kenny Waste Management fulfilling this Agreement.
10.3 The failure by Kenny Waste Management to enforce any of the terms or conditions of this Agreement shall not be a waiver of them.
10.4 The Customer shall not assign or sub-contract any of its right or duties under this Agreement without Kenny Waste Management’s written consent. Kenny Waste Management may assign or sub-contract this Agreement (or part of it) without the Customer’s consent.
10.5 Notices shall be in writing and sent to the address of the recipient set out in Part A (or such other address as a party may notify to the other) by hand, Royal Mail first class Recorded Delivery pre-paid letter or equivalent, or facsimile. Notices shall be deemed to have been served, if by hand when delivered, if by Royal Mail first class Recorded Delivery post or equivalent 48 hours after posting and if by facsimile when despatched (provided supported by a transmission confirmation sheet).
10.6 This Agreement and its terms shall at all time be kept confidential by the parties (subject to any legal requirement on either party) and all information disclosed or obtained from the other in whatever form shall be regarded as confidential and shall not be disclosed to any third party whatsoever.
10.7 This Agreement shall be governed by and interpreted according to English Law.