Business waste collection service terms and conditions

The client's attention is particularly drawn to Clause 10: Limitation of liability.

The following terms and conditions are for Horsham District Council's chargeable business waste collection service.

1. Commencement and term

1.1 This Agreement shall commence on the date when it has been signed by all the parties and shall continue for 12 months unless terminated in accordance with clause 9.

2. The Services

2.1 The Council shall:

1. provide the Client with free ‘on loan’ refuse containers (“the Equipment”) for the Client to use for as long as the Agreement continues;
2. collect the business waste and/or recycling from the Premises in accordance with the agreed collection dates as set out in the Collection Details section of this Agreement; and
3. provide the Client with a Waste Transfer Note (together “the Services”).

2.2 The Council reserves the right to amend the Services if necessary to comply with applicable law or regulatory requirements, or if the amendment will not materially affect the nature or quality of the Services and the Council shall notify the Client in any such event.

2.3 The Council warrants that the Services will be provided using reasonable care and skill.

3. The Equipment

3.1 All Equipment supplied by the Council to the Client shall remain the property of the Council.

3.2 The Client shall keep the Equipment securely at the Premises unless another address for storage of the Equipment is agreed in advance in writing by the Council.

3.3 The Client shall not, without the Council’s previous consent in writing, remove or permit the Equipment to be removed from the Premises or from any other storage address approved by the Council unless such removal is at the request of the Council.

3.4 If the Equipment is damaged or destroyed by the Client or a third party, the Client shall be responsible for the cost of repair or replacement by the Council, plus any delivery charge.  The Council shall replace any Equipment damaged or destroyed by the Council at no cost to the Client.

3.5 On termination of this Agreement the Client shall ensure that the Equipment is in good condition (fair wear and tear excepted) and available immediately for collection by the Council on the date of termination of this Agreement.

3.6 The Client, during the term of the Agreement shall be responsible for maintaining the Equipment in a clean condition to a standard deemed acceptable to the Council.

3.7 The Client shall not deposit or permit to be deposited in the equipment any toxic waste, polluting oils, medicines, drugs or any hazardous waste within the terms of the Hazardous Waste (England and Wales) Regulations 2005 (as amended)

3.8 The Client shall not use or permit the Equipment to be used for the burning of any material.

3.9 The Client shall be permitted to place waste food and other putrescent material in the Equipment and the Client shall arrange for the Equipment to be emptied not less frequently than once per week if it is used for the deposit of such waste and to arrange for the Equipment to be cleaned if necessary.

3.10 The Client shall ensure that any Equipment supplied by the Council is not overloaded and the waste is secured safely within the Equipment.

4. Collection

4.1 The Council and the Council’s authorised personnel and sub-contractors shall have access to the Equipment for the purposes of fulfilling its obligations under this Agreement and the Client shall ensure that the Equipment is made available to the Council no later than 0530 hours on a day during which a scheduled collection by the Council is due to take place.

4.2 The Council reserves the right to refuse collection in the following circumstances:

1. where the Equipment is not easily or safely accessible;
2. where waste not included on the Waste Transfer Note has been deposited in the equipment.

4.3 Any missed collections must be reported to the Council within 48 hours of the relevant collection date.

5. Charges and payment

5.1 The monthly Charges for the Services shall be calculated according to the average weight (rounded down to the nearest kilogram) of the loads collected during a calendar month using the pricing structure set out as follows:

1. if the average weight of the loads collected during a calendar month is less than or equal to the weight limit for Tier 1, the Tier 1 charges shall apply;
2. if the average weight of the loads collected during a calendar month exceeds the weight limit for Tier 1, any excess weight shall be charged for at the Tier 2 rate;
3. if a weight from a completed lift is not registered, a default weight will be applied;
4. if the average weight of the loads collected during a calendar month exceeds the weight limit for Tier 2, any excess weight shall be charged for at the Excess Weight rate below

5.2 The Client’s charges may vary from month to month according to the average calculated weight and applicable Tier for that period.

5.3 Where the Client makes payment in advance, the Council shall invoice the Client on the basis of the Tier 1 charges.  If the average weight of the loads collected during a calendar month exceeds the weight limit for Tier 1 and, if applicable, the weight limits for Tier 2, then every three calendar months the Council shall invoice the Client for any outstanding Charges payable in respect of those loads where the average weight exceeded the weight limit for Tier 1 and, if applicable, the weight limits for Tier 2.

5.4 The Council reserves the right to increase the Charges on an annual basis with effect from 1st April of each year.   The Council shall notify the Client of any such increase in the Charges in advance.

5.5 All Clients will be subject to a standard credit check. This will be completed by the Council using an approved credit checking software.   The Client will be expected to have a credit limit on this report that covers 3 months’ worth of the Services provided by the Council. If this requirement cannot be satisfied, the Client will be required to pay a deposit equivalent to 6 weeks’ of Charges (“the Deposit”) via debit or credit card before the Equipment is delivered.

5.6 The Deposit will be refunded to the Client at upon termination of this Agreement or used to recover any outstanding Charges should the Client fail to make payment in accordance with clause 5.

5.7 Unless agreed otherwise in writing by the parties, the Council shall invoice the Client monthly in arrears.

5.8 The Client shall pay each invoice submitted by the Council:

1. within 28 days of the date of the invoice or in accordance with any Direct Debit payments or credit terms agreed by the Council and confirmed in writing to the Client; and
2. in full and cleared funds to a bank account nominated in writing by the Council and
3. time for payment shall be of the essence of the Agreement.

5.9 All amounts payable by the Client under the Agreement are exclusive of amounts in respect of value added tax chargeable from time to time (“VAT”).  Where any taxable supply for VAT purposes is made under the Agreement by the Council to the Client, the Client shall, on receipt of a valid VAT invoice from the Council, pay the Council such additional amounts in respect of VAT as are chargeable on the supply of Services at the same time as payment is due for the supply of Services.

5.10 If the Client fails to make payment due to the Council under the Agreement by the due date, then, without limiting the Council’s remedies under clause 9, the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgement.  Interest under this clause 5.9 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when the base rate is below 0%.

5.11 All amounts due under the Agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

6. Data Protection: How your data will be used

6.1 Our preferred method of contact is via email. When you first sign up to the service an email address will be requested. This will be used to notify you of any changes in the service as well as updates on the service and will be the method we send over the Waste Transfer Note to you. If there is a situation where no email address is provided a letter will be sent in the post. In line with data protection regulations you data will only be used for business waste purposes. In case of termination of your service your details will be kept for a maximum period of 6 years before it is deleted. It is the responsibility of the Client to keep Horsham District Council business waste service up to date with contact details.

7. Freedom of information

7.1 The Client acknowledges that the Council is obliged to comply with the provisions of Section 100 of the Local Government Act 1972, the Freedom of Information Act 2000 and the Environmental Information Regulations 2004 (together the “Information Acts“), meaning that any person has the right to request information relating to the provisions of this Agreement.

7.2 The parties acknowledge that, except for any information, which is exempt from disclosure in accordance with the provisions of the Information Acts, the text of this Agreement is not confidential information.

7.3 The Council shall be responsible for determining in its absolute discretion whether any part of this Agreement is exempt from disclosure in accordance with the provisions of the Information Acts.

8. Duty of care: Waste Transfer Note

8.1 The Client shall complete and return the Duty of Care: Waste Transfer Note annually as required by the Waste (England and Wales) Regulations 2011. Guidance can be found in the Waste Duty of Care Code of Practice issued by DEFRA (March 2016)

8.2 The Council will provide the Client with the Waste Transfer Note as part of the service, this will be sent out annually on 1st April or the date on which the service commences and then on the anniversary of the commencement date.

8.3 The Client shall return the Waste Transfer Note within 28 days of the commencement of the service.

8.4 The Client shall comply with clause 8 to ensure that the Waste Transfer Note contains the correct information.

8.5 Failure to return the Waste Transfer Note within the 28 day period referred to in 8.3 will result in the Services being temporarily suspended

9. Termination

9.1 Without affecting any other right or remedy available to it, either party may terminate the Agreement by giving the other party 4 weeks’ written notice.

9.2 Without affecting any other right or remedy available to it, either party may terminate the Agreement by giving written notice to the other party if:

1. the other party commits a material breach of any term of the Agreement and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified to do so in writing;
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 ceasing to carry on business;
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
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 fulfill its obligations under the Agreement has been placed in jeopardy.

9.3 Without affecting any other right or remedy available to it, the Council may terminate this Agreement immediately by giving written notice to the Client if:

1. the Client fails to return the Waste Transfer Note to the Council;
2. the Client fails to pay any amount due under the Agreement on the due date for payment; or
3. there is a change of control of the Client.

9.4 Without affecting any other right or remedy available to it, the Council may terminate this Agreement immediately by giving written notice to the Client and recover all losses if the Client:

1. offers, gives or agrees to anyone any inducement or reward in respect of this or any other Council contract (even if the Client does not know what has been done); or
2. commits an offence under the Bribery Act 2010 or Section 117(2) of the Local Government Act 1972; or
3. commits any fraud in connection with this Agreement or any other Council contract whether alone or in conjunction with Council members, contractors or employees.

9.5 On termination of the Agreement:

1. the Client shall immediately pay to the Council all of the Council’s outstanding unpaid invoices and interest, and in respect of Services supplied but for which no invoice has been submitted, the Council shall submit an invoice, which shall be payable by the Client immediately on receipt;
2. the Client shall return the Equipment.  If the Client fails to do so, then the Council may enter the Premises and take possession of the Equipment.  Until the Equipment has been returned, the Client shall be solely responsible for its safe keeping and will not use them for any purpose not connected with this Agreement;
3. the Council shall promptly return any key to the Client and/or destroy any access codes in its possession.

9.6 Termination of the Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination.

9.7 Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination of the Agreement shall remain in full force and effect.

10. Limitations of liability

10.1 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.

10.2 Nothing in this Agreement limits any liability which cannot legally be limited, including liability for:

1. death or personal injury caused by negligence;
2. fraud or fraudulent misrepresentation; and
3. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).

10.3 Subject to clause 10.2, the Council’s total liability to the Client for all other losses arising under or in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed the Charges paid by the Client to Council in respect of the Services in the 12 month period prior to the event or events leading to the Client’s loss.

10.4 Subject to clause 10.2, the Council shall not be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with this Agreement.

10.5 The Client shall hold and keep the Council fully indemnified from and against all actions, costs, claims, demands and liabilities whatsoever in respect of injury, including fatal injury or damage to any person or property due to or arising from the act, neglect or default of the Customer.

10.6 Neither party shall have any liability under or be deemed to be in breach of this Agreement for any delay in performance, or any failure to perform, any of its obligations under this Agreement (and the time for performance shall be extended accordingly) if and to the extent that such delay or failure is due to circumstances beyond its reasonable control including, but not limited to, flood, fire, earthquake, riots, adverse weather,  industrial disputes not involving employees of such party, or epidemic or pandemic.

11. Legislation

11.1 The Client shall comply with all relevant current legislation, codes, policies and other enactments relevant to the provision of the Services by the Council.

12. Notices

12.1 Any notice given to a party under or in connection with the Agreement shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery services at it registered office (if a company) or its principal place of business (in any other case); or sent by email to the address specified.

12.2 Any notice shall be deemed to have been received:

1. if delivered by hand, on signature of a delivery receipt;
2. if delivered by pre-paid first class post or other next working day delivery services, at 9.00am on the second business day after posting or at the time recorded by the delivery service;
3. if sent by email, at the time of transmission, or if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 12.2.3, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.

12.3 For the purposes of this Agreement, the address of the Council is: Horsham District Council, Parkside, Chart Way, Horsham, RH12 1RL

For the attention of: Commercial Manager

Tel: 01403 739391

12.4 This clause 12 does not apply to the service of any proceedings or other documents in any legal action, or where applicable, any other method of dispute.

13. Entire Agreement

13.1 This Agreement constitutes the entire agreement and understanding between the parties.  Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on, and shall have no right or remedy in respect of, any statement, representation, warranty or undertaking (whether negligently or innocently made) other than as expressly set out in this Agreement.

14. Variation

14.1 The Council reserves the right to amend the terms of this Agreement at any time by notifying the Client in writing.  The Client will be deemed to have accepted any variation to the terms of this Agreement unless they inform the Council otherwise.

15. Waiver

15.1 A waiver of any right or remedy under the Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.  A failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall not constitute a waiver of that or any other right or remedy, not shall it prevent or restrict any further exercise of that or any other right or remedy.  No single or partial exercise of any right or remedy provided under the Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.

16. Severance

16.1 If any provision or part-provision of the Agreement 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 a modification is not possible, the relevant provision or part-provision shall be deemed deleted.  Any modification or deletion of a provision or part-provision under this clause 16.1 shall not affect the validity and enforceability of the rest of the Agreement.

17. Third party rights

17.1 Unless it expressly states otherwise, the Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.

18. Governing law

This Agreement, 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.

19. Jurisdiction

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.