TERMS AND CONDITIONS OF TRADING
1. INTERPRETATION In these conditions:
1.1. COMPANY means Sapphire Energy Recovery Limited (Company registration number: 4027738) whose registered address is at Portland House, Bickenhill Lane, Solihull, Birmingham, B37 7BQ;
1.2. CONDITIONS means the standard terms and conditions of trading set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in Writing between the Customer and the Company;
1.3. CONTRACT means the contract for waste management and associated environmental services;
1.4. CUSTOMER means the person entering into the Contract to purchase the service;
1.5. SERVICE means the waste management and associated environmental services to be performed by the Company pursuant to the Contract;
1.6. SPECIFICATION means the analysis of the representative sample of Waste(s) supplied by the Customer to the Company and included as part of the attached schedule;
1.7. WASTE means any waste (including any consignment of the Waste), which the Company is to collect, and / or dispose of in accordance with these Conditions as part of the Service;
1.8. WRITING includes telex, cable, facsimile, email and comparable means of communication.
2. BASIS OF THE CONTRACT
2.1. The Company shall perform and the Customer shall purchase the Service in accordance with any quotation of the Company or its designated agent which is accepted by the Customer, or any order of the Customer which is accepted by the Company provided that any quotation marked or expressed to be ‘subject to sample’ shall constitute an invitation to treat only and shall not constitute an offer open to acceptance by the Customer.
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.
2.3. The Company’s employees or agents are not authorised to make any representations or give any advice or recommendations concerning any 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.
3. ORDERS AND SPECIFICATIONS
3.1. The Customer shall be responsible to the Company for ensuring the accuracy of the terms of any order (including any description of any waste) submitted by the Customer and for giving the Company any necessary information relating to the Waste within a sufficient time to enable the Company to perform the Contract in accordance with its terms.
3.2. The Customer warrants to the Company that any Waste shall correspond with Specification and, without prejudice to Condition 3.3 the Customer shall indemnify and keep indemnified the Company against all loss (excluding loss of profits), damages, costs and expenses awarded against or incurred by the Company (including, without limitation vehicle demurrage) in connection with any such failure to correspond. The Company warrants to the Customer that all necessary actions to mitigate the above losses will be carried out.
3.3. If the Company becomes aware that any Waste fails to correspond with Specification whether before or after collection, the Company reserves the right to reject the Waste and arrange for disposal at the Customer’s cost.
3.4. The Company also reserves the right to cancel the Contract without notice if any Waste delivery does not correspond with the Specification. This does not preclude the possibility of the parties agreeing new delivery terms.
3.5. Either party may cancel the Contract by giving the other party 3 months’ written notice.
4.1. The price of the Service shall be the Company’s quoted price. The price is based upon the loading of any Waste taking a maximum of 2 hours. If the loading of the Waste takes in excess of 2 hours and such delay is not due to any factor under the control of the Company, the Company reserves the right to increase the price to reflect such delay for that delivery. All prices quoted and fixed for one year, after which time they may be altered by the Company on giving 3 months’ notice in writing to the Customer.
4.2. The price is exclusive of any applicable value added tax.
5. CUSTOMERS 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 all applicable laws.
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 “hazardous waste” as defined under the Hazardous Waste Regulations 2005 and the Customer shall be responsible for compliance with all relevant requirements arising from such classification.
6. TERMS OF PAYMENT
6.1. The Customer shall pay the price (without any deduction or set off whatsoever) within 30 days of the date of the Company’s invoice and the Company shall invoice the Customer at the end of every month.
6.2. 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: 6.2.1. suspend all of 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; and / or 6.2.2. charge the Customer interest (both before and after any judgment) on the amount unpaid, at the rate of 4 per cent per annum above Barclays Bank base rate from time to time accruing daily, until payment is made in full.
7.1. Performance of the Service including collection of any Waste shall be made at the Customer’s premises.
7.2. Monthly collection schedules will be agreed in advance between the Company and the Customer. The schedule will include time slots agreed between the Company and the Customer. The schedule may be amended by agreement between the Company and the Customer.
7.3. 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.
7.4. If the Company fails to perform the service (or any consignments) 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 excess, if any, of the cost to the Customer (in the cheapest available market) of the Service.
7.5. The Company’s nominated hauliers shall adhere to the Customer’s site procedures at all times whilst effecting waste collections.
8. WARRANTIES AND LIABILITIES THE CUSTOMER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF CLAUSE 8.
8.1. Subject to the conditions set out below, the Company warrants that the Service shall be carried out with reasonable care and skill.
8.2. 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 to the fullest extent permitted by law provided that nothing in these Conditions shall exclude or limit the liability of either party for fraud.
8.3. Except in respect of death or personal injury caused by the Company’s negligence, the Company shall not be liable to the Customer 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 negligence of the Company, its employees or agents or otherwise) which arise out of or in connection with the Service.
8.4. A copy of the Company’s policies of insurance is 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 the direct loss or damage to the Customer arising from risks covered by such policies or insurance shall not exceed £5,000,000 except as expressly provided in these Conditions. The entire liability of the Company under or in connection with the Contract in respect of direct 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 price.
8.5. 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:
8.5.1. act of God, explosion, flood, tempest, fire or accident;
8.5.2. war or threat of war, sabotage, insurrection, civil disturbance or requisition;
8.5.3. acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
8.5.4. import or export regulations or embargoes;
8.5.5. strikes, lock-outs or other industrial or trade disputes (whether involving employees of the Company or of a third party);
8.5.6. difficulties in obtaining raw materials, labour, fuel, parts or machinery;
8.5.7. power failure or breakdown of machinery.
8.6. if the Company is prevented from performance of its obligations for a continuous period in excess of three months, then either party may terminate the contract forthwith on service of a written notice on the other party in which case the Company shall be entitled to be paid for all work prior to the date of termination.
9.1. The Customer agrees to indemnify and keep indemnified the Company from and against all costs, claims, demands, liabilities, expenses, damages or losses (excluding loss of profits) arising out of or in connection with the Customer’s negligence, default or breach of these Conditions. The Customer shall have 90 days to rectify any breach or default.
9.2. The Customer shall be indemnified against any claims from the Company in relation to the quality of the Company’s product, providing that the Waste complies with the Specification.
10. INSOLVENCY OF CUSTOMER
10.1. This clause applies if:
10.1.1. the Customer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation, otherwise than for the purpose of amalgamation or reconstruction; or
10.1.2. an encumbrancer takes possession, or a receiver is appointed, of the Customer’s undertaking or any of its property or assets; or
10.1.3. the Customer ceases or threatens to cease to carry on business; or
10.1.4. the Customer reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.
10.2. If this clause applies then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to cancel the Contract or suspend any further collections under the Contract without any liability to the Customer, and if the Service has been performed but the price has not been paid, the price shall become immediately due and payable notwithstanding any previous agreement to the contrary.
11. RESTRICTIONS THE CUSTOMER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OFTHIS CLAUSE
11 11.1. 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.
12.1. The Company may perform any of its obligations or exercise any of its rights here under 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.
12.2. 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, not to be unreasonably withheld.
12.3. 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.
12.4. No waiver by the Customer of any breach of contract by the Company shall be considered as a waiver of any subsequent breach of the same or any other provision.
12.5. 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.
12.6. These 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 the Company.
12.7. The Contract shall be governed by the laws of England and the Customer agrees to submit to the exclusive jurisdiction of the English courts.
SAPPHIRE ENERGY RECOVERY LIMITED 19 April 2017