Terms &
Conditions
Please read the Terms and
Conditions before you sign our Commercial Waste
Agreement.
1 Definitions and Interpretations
1.1 In this Agreement the following words and expressions shall
have the following meanings:-
"Agreement" means the Form of Agreement for the
Collection of Waste signed by the Parties together with these Terms
and Conditions;
"Agreement Period" means the period set out in
clause 2;
"Charges" means the charges described in clause
10 and where applicable includes the separate and/or combined
charges for the hire and provision of a Container or the collection
of Material Waste;
"Container" means the container or containers
provided or hired by the Council to the Customer forming part of
the Services under this Agreement or additions provided by the
Council from time to time;
"Council" means the body called the London
Borough of Newham referred to on the Form of Agreement;
"Customer" means the legal person to whom the
Council provides Services under this Agreement and referred to on
the Form of Agreement;
"Customer Container" means a container not
provided by the Council under this Agreement and referred to in
clause 8;
"Form of Agreement" means the Form of Agreement
signed by the Parties containing details and particulars of this
Agreement and the Services
"Hazardous Waste" means the hazardous waste
referred to in clause 5;
"Initial Period" means the period commencing on
the Start Date and ending on the 31st March next following or such
other shorter date stipulated in the Form or Agreement or as
otherwise notified by the Council in writing;
"Location of Transfer" means the collection
address referred to in the Form of Agreement;
"Renewal Period" means the period referred to
in clause 2
"Services" means the services set out in clause
3 and in the Form of Agreement;
"Start Date" means the last date that all of
the following conditions have been fulfilled; i) payment of the
Charges in full; ii) the Parties signing this Agreement and iii)
the parties signing the Waste Transfer Note (WTN);
"Waste Material" means the Customer's waste
material complying with the description contained within the Waste
Transfer Note (WTN)and the terms of this Agreement;
"Waste Transfer Note" means the waste transfer
note referred to in clause 4 and signed by the Parties from time to
time;
2 Period of the Agreement
2.1 This Agreement shall commence on the Start Date and shall
remain in operation for the Initial Period and unless stated
otherwise in the Form of Agreement shall be renewed automatically
thereafter for successive one year terms (the 'Renewal Period')
(the Initial Period and where appropriate the Renewal Period shall
mean the 'Agreement Period') unless terminated earlier as provided
within the Agreement.
3 Services Provision
3.1 The Council agrees to provide to the Customer the waste
collection service and where applicable the use of the Container
(the 'Services') at the Location of Transfer in accordance with
this Agreement making collections on the days, at the frequency,
places and for the amounts specified in this Agreement.
3.2 The Services shall be limited to the number and volume of
Containers stated in the Agreement and for which payment has been
made.
3.3 The provision of the Services may be varied by the Council
during Bank Holidays, other holidays, during emergency or to meet
other operational requirements including inclement weather or in
other circumstances outside the control of the Council .The Council
do not undertake to provide an alternative collection that week.
Where possible the Council will endeavour to notify the Customer in
advance. Any such variation will be without liability to the
Council however the Council will endeavour to make arrangements for
any uncollected Waste Material/Container to be collected. The
Customer agrees to assist the Council in it attempts to make
alternative arrangements for the collection of the Waste
Material/Container and the Customer acknowledges that circumstances
may dictate that an alternative method of storage of Waste
Material/Container may need to be undertaken by the Customer in the
interim at their own risk and cost such as by the use of sealed
bags. The Customer shall be liable to pay for the missed
collection. However the alternative or subsequent collection of the
uncollected Waste Material/Container will be made without charge to
the Customer.
3.4 The Council reserves the right to make operational changes
as it deems necessary during the Agreement Period to ensure that
the Services are provided to all customers in an efficient and
cost-effective manner. The Customer will be notified of such
operational changes, if not in advance, as soon as possible. In
such circumstances the Customer shall be at liberty to determine
this Agreement early upon giving to the Council 14 days notice in
writing.
3.5 No later than the Start Date and thereafter throughout the
Agreement Period the Customer shall have obtained and thereafter
maintain a Waste Transfer Note (WTN) for the purposes of all Waste
Material collected under this Agreement.
3.6 Subject to the Customer obtaining and maintaining a WTN
throughout the Agreement Period as stated in Condition 3.5 the
Services shall commence on the Start Date and continue thereafter
subject to and in accordance with the terms of this Agreement.
3.7 Should the Council fail to provide the Services on any day
scheduled for the collection of the waste the Customer shall be
under a duty to notify the Council within one working day of the
said failure to collect. Notice by the Customer shall be
communicated to the Council by the soonest most practicable means.
The Customer shall be liable to pay for the missed collection.
However the alternative or subsequent collection of the uncollected
Waste Material/Container will be made without charge to the
Customer.
4 Duty of Care and Waste Transfer Note
(WTN)
4.1 The Environmental Protection Act 1990 places a Duty of Care on
the producer of waste. The law requires that Waste Producers take
all reasonable steps to ensure that waste is managed in an
authorised manner. The Waste Producer must ensure the waste is
properly contained and does not escape from their control and is
only transferred to an authorised person with a written description
of the waste on a WTN.
4.2 The Customer warrants that the WTN contains an accurate and
adequate description of the nature and characteristics of the Waste
Material and that the Council is advised at all times of the
composition of the Waste Material prior to collection. The Customer
must complete, sign and return the Duty of Care WTN before
collections can commence. The WTN signed by the Council will be
issued on receipt of payment and will be valid only for the period
paid for in advance.
4.3 The written description of the Waste Material in the WTN
must contain sufficient information to enable safe and legal
handling, recovery or disposal. It must also contain reference to
the appropriate six-digit code in the European Waste Catalogue. The
WTN must also show the quantity of the Waste Material and how it is
contained.
4.4 Waste Material for collection through this Agreement shall
not include any liquids, or any material which is toxic, corrosive,
flammable, explosive or hazardous.
4.5 Where there are regular collections of the Waste Material
and the description remains unchanged WTN's can be valid for up to
one year.
4.6 The signed copy of the WTN must be retained by the Customer
for two years after the date of the last collection specified in
the WTN and must be shown, on request to an authorised person.
5 Hazardous Waste
5.1 The Waste Material collected through this Agreement must not
contain hazardous waste (' Hazardous Waste') as defined below.
5.2 Hazardous Waste must be managed in accordance with the
Hazardous Waste Regulations introduced in 2005. The inclusion of
Hazardous Waste with the Waste Material collected through this
Agreement is prohibited and illegal.
5.3 Wastes that contain hazardous properties harmful to human
health or the environment are identified in the European Waste
Catalogue available on the Environment Agency Web site.
Examples of waste considered hazardous include:
Asbestos
Lead acid batteries
Cathode Ray Tube TV's and Computer Monitors
Fridges and Freezers
Fluorescent light tubes
Chemical wastes
Pesticides
Oily sludge's
6 Animal By-Products
6.1 The Waste
Material collected through this Agreement must not contain raw or
unprocessed animal wastes including meat fish or eggs.
7 Storage and Collection
7.1 Containers and bags shall be sited in a safe and secure
position for convenient collection as agreed with the Council. The
Container lid must be closed after use and bags securely tied
closed. In addition to the prohibition of Animal by-products and
Hazardous Waste and other forms of waste referred to in Conditions
3, 4 and 5 the Customer must not dispose of waste that constitutes
or is likely to constitute a health and safety risk to any persons
emptying or collecting or disposing of the waste or emptying the
Container.
7.2 All Containers provided by the Council to the Customer under
this Agreement shall remain the property of the Council and may
only be used in accordance with the terms of this Agreement. The
Customer shall bear all the risks involved in the siting, storage
and use of the Containers and Waste Material and will therefore
accept responsibility for all loss, damage or defacement of the
Containers. The Customer shall take all reasonable care of the
Containers keeping them in a clean and good condition entirely at
the cost of the Customer including the cost of cleansing, repair or
replacement as may be required. The Customer will not be
responsible for normal wear and tear unless it is a Customer
Container. The Customer shall immediately inform the Council of any
defect affecting the Container
7.3 The Customer must not overload Containers either in terms of
volume or weight nor load the Containers in a manner, which makes
emptying unsafe. The Services will not be undertaken if in the
reasonable opinion of the Council the Container and/or Material
Waste has been left in any way described in this Condition.
7.4 The Customer shall ensure that the Waste Material intended
for collection by the Council is deposited in the Containers and/or
bags as agreed with the Council and is not deposited, stored or
kept outside other than in such Containers and/or bags.
7.5 The Customer shall provide safe and unobstructed access to
the Waste Material/Containers on the day of collection. If access
to the Waste Material/Container continues to be obstructed the
Council reserves the right to charge for any additional collection
cost or to terminate the Agreement.
7.6 The Council shall not be held liable for any damage to
access ways, road surfaces, parking areas, footways kerbs etc
belonging to the Customer or third parties resulting from the
weight or size of the waste collection vehicles. Details of the
size and weight of the vehicle used can be obtained from the
Council upon written request.
7.7 This Agreement does not give authority to deposit any waste
on the public highway in advance of collection. The Services shall
not apply to the collection of Waste Material/Containers placed on
the public highway except where a separate written approval has
been obtained by the Customer from the Council. Any approval given
will be subject to strict limitations on the time, day and manner
of the deposit.
7.8 The Customer warrants that it has absolute title to the
Waste Material and has a right to deposit the Waste Material in the
Container or make it available for collection and disposal.
7.9 The Customer acknowledges that the Council shall acquire
full title to the Waste Material when it is loaded into the
Council's collection vehicle.
7.10 Except for a Customer Container the Customer shall not
without the Council's prior written permission place any name or
sign, marking, advertising or other device and shall not remove,
cover or deface the name, sign, marking, advertising or other
device placed by the Council on the Containers.
7.11 The Customer hereby gives the irrevocable right and licence
to enter the Location of Transfer or wherever premises the
Containers are kept at any time with or without vehicles and with
or without notice for the purposes of assessing and/or removing the
Container.
8 Containers Owned By The Customer
8.1 Customer Containers provided by the Customer shall be properly
and regularly maintained in a good condition and cleansed by the
Customer at its own expense to ensure that the Customer Container
is clean and safe for collection and emptying by the Council.
8.2 All such Customer Containers shall be regularly inspected by
a competent person to ensure that they can be safely handled by
Council collection staff and safely emptied by the lifting
equipment employed by the Council.
8.3 For the avoidance of doubt notwithstanding the provision by
the Customer of a Customer Container the Customer shall otherwise
comply with all the terms and conditions of this Agreement
9 Compliance with the Legislation and
Guidance
9.1 The Council and the Customer shall comply with all legislation
and officialy recognised guidance and codes of practice relating to
the Services including the Environmental Protection Act 1990 and
the Control of Pollution Act 1974.
10 Charges
10.1 Collection charges
including any variations (the 'Charges') for the Services shall be
determined by the Council from time to time. The Charges are likely
to be set on annual basis from the 1st April each year. The Council
reserves the right to determine Charges at any time.
10.2 The Charges payable shall be those calculated in accordance
with the rates set by the Council and the frequency of the Services
throughout the Agreement Period. The Charges are exclusive of any
applicable Value Added Tax which the Customer shall also be liable
to pay to the Council.
10.3 The Council reserves the right to vary the Charges payable
by the Customer during the Agreement Period (for example changes to
overheads such as fuel, value added tax and landfill tax) and
notice will be given to the Customer as soon as possible prior to
the implementation of any variation to the Charges. In such
circumstances the Customer shall be at liberty to determine this
Agreement early upon giving to the Council 14 days notice in
writing. The Customer shall pay any additional Charges arising from
a variation under this Condition within 14 days of receiving an
invoice from the Council demanding payment
10.4 The Customer shall pay the Charges in full for the entire
Agreement Period in advance of the First Date of Collection and
thereafter in advance of each successive Renewal Period.
Alternatively the Customer may discharge the requirement to pay the
Charges in full by setting up with a Bank, in advance of the First
Date of Collection, a Direct Debit Mandate in favour of the Council
obliging the Customer through its Bank to make payments to the
Council by Direct Debit (on such terms to be agreed by the Council)
for the Agreement Period and each Renewal Period.
10.5 If payment of the Charges is not received whether formally
demanded or not the Council may terminate the Services with
immediate effect and the Council shall have the right to recover
all outstanding and unpaid monies due and owing to the Council
arising from this Agreement by whatever lawful means available.
10.6 Rebates shall not be made where the number of Containers
made available for collection is less than the number stated in
this Agreement.
10.7 Any changes to the type size and amount of Containers or
the frequency of the collection in Services shall require written
agreement between the parties and may result in an increase in
charges.
10.8 Requests for variation in the level of Services shall be
submitted in writing ten working days in advance.
10.9 Any agreed changes shall not affect the validity of this
Agreement and this Agreement shall be amended accordingly
11 Termination
11.1 If the Customer shall
fail to comply with this Agreement, the Council may, in writing, on
giving 7 days notice, terminate the Agreement.
11.2 The Agreement may be terminated at any time by either party
giving to the other written notice of not less than one month to
that effect.
11.3 Upon termination of the Agreement, the Customer may apply
in writing for the refund of any unexpired portion of the Charges
for the remainder of the Agreement Period on a pro rata basis.
Refunds will be subject to a cancellation charge to cover
administrative costs as determined by the Council from time to time
and subject to the cost to repair any damage to the Container
and/or to clean a Container required in order to bring the
Container back into a condition suitable for re-hire excepting fair
wear and tear to the Container.
11.4 Termination of this Agreement by effluxion of time or
otherwise shall be without prejudice to any claim one party may
have against the other arising from this Agreement either before or
after its termination.
11.5 Upon termination of this Agreement by effluxion of time or
otherwise the Customer shall forthwith make the Containers
immediately available for collection by the Council and shall
forthwith pay all sums due under this Agreement.
12 Indemnity and Liability
12.1 The Customer shall be wholly responsible for the Containers
and the safety of all persons (including waste collection workers)
entering the Location of Transfer or wherever the Customer keeps,
stores or sites the Waste Material/Container and the Customer shall
be liable and agrees to indemnify the Council against any such
liability, losses and claims whatsoever for injury or death to
persons or loss or damage to property arising therefrom except
where death or injury to a person or damage to property is caused
by the negligence of the Council.
12.2 The Customer shall indemnify the Council against all claims
arising through any neglect, act or breach by the Customer in
connection with this Agreement.
12.3 The Customer shall indemnify the Council against any damage
its collection vehicle may cause to the road/drive, car park
surface, or any other property (whether public or private areas)
where the collection vehicle is required to enter to perform the
Services including all apparatus or services located beneath the
route taken by the collection vehicle subject to the Council's
driver operating with normal care and attention.
12.4 The Council will not be liable to the Customer or deemed to
be in breach of the Agreement by reason of any delay in performing
or failing to perform any of the Council's obligations in relation
to the Services, if the delay or failure was due to any cause
beyond the Council's reasonable control resulting from: act of God,
explosion, flood, tempest, fire or accident; war or threat of war,
sabotage, insurrection, civil disturbance or requisition; acts,
restrictions, regulations, laws, prohibitions or measures of any
kind on the part of any government; strikes , lockouts or other
industrial actions or trade disputes (whether involving Council
employees or third party employees); difficulties in obtaining
labour fuel, parts or machinery or failure or breakdown of
machinery.
12.5 The Customer is therefore advised to undertake whatever
risk assessment it considers necessary arising from the above
responsibilities/liabilities described in this Condition 12 (and
throughout this Agreement) and to advice the Council in writing of
any risks identified and the suggested action to deal with such
risks. The Customer should also consider whether its insurance for
such risks is adequate. Should the Customer take out insurance for
any such risks the Customer shall ensure that the Council's
interest is noted on the policy and that the policy is available
for inspection by the Council upon request.
13 Assignment
13.1 The Customer shall not transfer, assign or sublet the whole or
any part of this Agreement (and for the avoidance of doubt
including a Container) without the written consent of the Council
and any such transfer, assignment or sub-letting (without he
consent of the Council) shall operate to terminate this Agreement
automatically.
13.2 The Council reserves the right to transfer, assign or
sublet the whole of benefits and burdens of this Agreement upon
giving one month prior notice in writing to the Customer.
14 Confidentiality and Data Protection
14.1 Unless having been placed under an obligation to do so by a
court or other body or agency of competent authority or
jurisdiction (including the Information Commissioner, Government
Agency, the Council, WTN inspector and External Auditor) the
Parties agree to keep confidential this Agreement.
14.2 Notice is hereby given to the Customer that pursuant to the
Data Protection Act 1998 the Council may use the Customers data
appearing in this Agreement for the purpose of the provision of its
commercial waste collection service and to confirm and update the
Council's records held for this purpose.
15 Severability
15.1 If any provision of the Agreement is held to be invalid,
illegal or unenforceable for any reason by any court of competent
jurisdiction such provision shall be severed and the remainder of
the provisions of the Agreement shall continue in full force and
effect as if the Agreement had been executed with the invalid,
illegal or unenforceable provision eliminated.
16 Waiver
16.1 Failure by a Party at any time to enforce the provisions of
the Agreement to require performance by the other Party of any
provisions of the Agreement shall not be construed as a waiver of
any such provision and shall not affect the validity of the
Agreement or any part thereof or the right of a Party to enforce
any provision in accordance with the Agreement.
17 Notices
17.1 Except as otherwise expressly provided by the Agreement no
notice or other communication from one Party to the other shall
have any validity under the Agreement unless made in writing by or
on behalf of the Party concerned.
17.2 Any written notice or other communication which is to be
given to a Party, shall be delivered by prepaid first class post or
by hand or sent by fax or electronic transmission to the relevant
Party's address and/or fax/email address (as applicable) as set out
above or as that Party shall notify to the other Party.
17.3 Properly addressed postal notices shall be deemed to have
been served 2 working days after the date of posting; notices
delivered by hand shall be deemed to be served at the time of
delivery and notices sent by fax or email shall be deemed to be
delivered at the time of sending provided that a confirmation
report of successful transmission is obtained.
18 Whole Contract And Variations
18.1 This Agreement constitutes the whole agreement between the
Customer and the Council in respect of the provision of the
Services and the Customer acknowledges that in entering into this
Agreement no reliance has been placed upon any representation, act,
omission except as set out in this Agreement.
18.2 Any variation to this Agreement shall be of no effect
unless expressed in writing and signed by an Authorised Officer of
the Council and the Customer
18.3 The Customer acknowledges that it can place no reliance on
any representation, act or omission of the Council unless confirmed
in writing by an Authorised Officer of the Council.
19 Third Party Rights
19.1 For the avoidance of doubt nothing in this Agreement shall
confer on any third party any benefit or the right to enforce any
term of this Agreement and the parties hereby agree to exclude the
provisions of the Contract (Rights of Third Parties) Act 1999.
20 Law and Jurisdiction
20.1 This
Agreement shall be governed by and construed in accordance with the
laws of England and to the exclusive jurisdiction of the English
Courts.
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Conditions