Sewage
Terms and conditions
of service
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1.1. In these terms and conditions:
“Agreement” means these terms and conditions any
Specific Terms agreed by the Parties’ authorised representatives and any
amendments thereto agreed in the manner set out in these terms and conditions.
“CWD” means Cheap Waste Disposal, for and on behalf
of Titan Sky Ltd;
“Charge” means any charge for Services and any
additional charges levied hereunder set out in the Table of Charges below in
Schedule 1, unless set at a different rate by CWD in writing, including but not
limited to abortive charges, storage charges, additional transport charges,
disposal charges, interest, late fees and debt recovery costs;
“Client” means a person, partnership or company or
other type of trading organisation to which the Services are supplied subject
to these conditions;
“Insolvent” means the Client becoming unable to pay
its debts within the meaning of section 123 of the Insolvency Act 1986, the
levying or the threat of execution or distress on any of your property, the
appointment of a receiver or administrative receiver over all or any part of
your property, a proposal for a voluntary arrangement or compromise between the
Client and its creditors whether pursuant to the Insolvency Act 1986 or
otherwise, the passing of a resolution for voluntary winding up or summoning a meeting
to pass such a resolution other than for the purpose of a bona fide
amalgamation or reconstruction, the presentation of a petition for the Client’s
winding-up or for an administration order in relation to the Client, the Client
suffers any analogous step or proceedings under foreign law or the Client
ceases or threatens to cease to carry on its business.
“Legislation” means the Hazardous Waste Regulations
2005, Waste (England and Wales) Regulations 2011, Control of Pollution Act
1974, The Environmental Protection Act 1990, the Duty of Care Code of Practice
and any other legal requirements for handling Waste and any amendments to the
said legislation or any legislation replacing the said legislation;
“Order” shall mean a written order submitted to CWD
by the Client including where relevant: full site address, any restrictions on
access to the site, Waste, tank or other storage medium, Waste Description
(including p/c code if relevant), amount of Waste, time and date of required
performance and cost in accordance with any Quote or Prices issued by CWD;
“Prices” shall mean the prices set out in price lists
for site services and other services agreed in advance with Clients from time
to time or ad hoc prices agreed between the parties in writing.
“Quote” means an offer to treat issued by CWD
containing an estimate of prices and proposed terms of performance for work
specified by the Client;
“Service” means the collection of Waste from the
Client or service other than waste collection performed in accordance herewith,
the Specific Terms of the Agreement and the Legislation;
“Specific Terms” means the terms included in the
Order, corresponding to the latest Quote issued by CWD or, in the absence of a
Quote, the terms previously agreed by the parties;
“Waste” means any unwanted, redundant or surplus
chattels, materials, chemicals, residue, packaging or other waste held by a
Client or no longer required by a Client or which a Client wishes to dispose
of, complying at all times with the Waste Description;
“Waste Description” means an accurate description of
all of the Waste to be transferred and actually transferred including but not
limited to Waste consistency and composition, the Waste Classification Code,
whether it is hazardous, the type of business or premises where the Waste was
produced, a chemical and physical analysis, any special problems related to the
Waste. Where a sample is provided, the Client warrants that all Waste provided
shall comply with the Waste Description of the sample;
1.2. Any reference in these Terms and Conditions to any
provision of a statute, statutory provision or other enactment shall be
construed as a reference to that provision as amended, re-enacted or extended
at the relevant time, provided that as between the parties, no such amendment
or modification shall apply for the purposes of these Conditions to the extent
that it would impose any new or extended obligation, liability or restriction
on, or otherwise adversely affect the rights of any party.
1.3. The headings in these Conditions are for convenience
only and shall not affect their interpretation
2. Contract
2.1. Orders shall be submitted in writing.
2.2. An Agreement shall arise upon CWD’s acceptance of the
Order by issuing a job number, subject to the remaining clauses hereof.
2.3. Orders shall be subject to CWD’s Quote or, in the
absence of a Quote, the Prices, to the exclusion of any amounts stated by the
Client in the Order unless agreed otherwise in writing.
2.4. In the event of any discrepancy to the detriment of CWD
between the Order and these terms and conditions, these terms and conditions
shall prevail.
2.5. Time shall not be of the essence as regards the
performance of the Order and all dates and times are subject to unilateral
amendment by CWD.
2.6. Unless expressly agreed otherwise, the amount of Waste
collected shall be the amount stated in the Waste Transfer Note generated by CWD
in accordance herewith.
2.7. Unless agreed otherwise, CWD’s Prices relate to the
capacity of CWD’s tank attending the site rather than the amount of Waste
removed.
2.8. If the Client fails to complete and sign a Waste
transfer note evidencing the transfer of Waste to CWD, CWD is authorised to
complete and sign the Waste transfer note on the Client’s behalf.
2.9 Any person who signs the Waste transfer note on the
Client’s behalf shall be deemed to have the Client’s actual authority to sign
the same.
2.10. Subject to CWD’s statutory duties under the
Legislation, CWD shall have absolute discretion as regards the means of
transport and storage of the Waste and its transfer to a subsequent licensed
waste holder or tip of its choice.
2.11. The signed Waste transfer note shall constitute final
acceptance and indisputable evidence that the Service and Order have been
performed in full.
3. Additional Charges
3.1 If, in CWD’s opinion, the Service to be performed
differs materially to that specified in the Order, for example if the Waste
does not comply with the Waste Description or sample, CWD may at its sole
discretion:
3.1.1 refuse to collect the Waste and levy an abortive
Charge on the Client;
3.1.2 collect the Waste and impose additional Charges to
cover any additional Costs of dealing with, removing, transporting, storing
and/or disposing of the Waste, including without limitation, the additional
costs of travel and disposal of the Waste at a suitable, licensed tip.
3.2. If the Service is cancelled less than 3 days before the
agreed date of performance or CWD is unable to perform the Service for any
reason attributable to the Client or any other reason beyond CWD’s control,
including but not limited to the inability to gain access to the Waste or place
of performance of the Service or unavailability of the Client’s personnel, CWD
may levy an abortive Charge on the Client.
3.3. CWD may impose a waiting time Charge per hour or part
thereof if any of its vehicles is required to wait at the Waste site in excess
of 15 minutes beyond the normal timescale for collection.
3.4. If, for any reason beyond CWD’s control or any event of
Force Majeure, CWD is unable to transfer the Waste to a suitable tip or other
licensed Waste holder on the day it is removed, CWD reserves the right to levy
a storage Charge per day for storage of the Waste until such time as the Waste
can be transferred to a suitable tip or other licensed Waste holder.
3.5. The additional Charges referred to in this clause 3 and
set out in the Table of Charges represent an accurate estimate of the costs CWD
would incur as a result of being unable to collect the Waste at the agreed time
or being required to store the Waste.
4. Payment
4.1. Unless cash payment terms or other payment terms are
agreed in writing with CWD, all accounts shall become due for payment within 30
days of the invoice date, which is the day after the collection.
4.2. All amounts due are subject to VAT at the statutory
rate applicable from time to time.
4.3. Payment by credit card/debit card shall be subject to a
5% surcharge.
4.4. Credit facilities may be withdrawn at any time at CWD’s
sole discretion, in which case all amounts and Charges due shall become
immediately due and payable.
4.5. Notwithstanding CWD’s agreement to grant credit, CWD
reserves the right to refuse to perform the Service if the arrangements for
payment or the Client’s credit rating are not satisfactory to CWD.
5. Set-off and withholding
5.1. The Client may not set-off any amounts payable or
deemed payable from CWD for whatever reason against any amounts due to CWD
hereunder, unless CWD expressly agrees to such set-off in writing.
5.2. CWD may off-set any amount due or deemed due to CWD
against any amount due to the Client.
5.3. The Client may not withhold payment of any amounts due
to CWD hereunder for any reason other than for failure on the part of CWD to
comply with the agreement, in which case the Client may only withhold the
amount reasonably disputed.
6. Insolvency and remedies for non-payment
In the event of a failure to pay any amount due to CWD by
the deadline for payment, Insolvency or a material change in the Client’s
constitution or a material breach of this Agreement, CWD reserves the right to
do any or all of the following, without prejudice to any other remedy at its
disposal:
6.1 withdraw any credit terms agreed with the Client,
rendering any outstanding Charges immediately due and payable.
6.2 register the debt with one or more credit reference
agencies, without liability on our part, which may affect the Client’s credit
rating and adversely affect its business.
6.3. impose late fees and interest on any overdue amount in
accordance with the Late Payment of Commercial Debts (Interest) Act 1998 as
amended, save that the remedies set out therein shall also apply to consumers.
6.4. appoint a debt recovery agency to recover any amount
due to CWD and Charge the Client the costs of such recovery amounting to 10% of
the amount due, which the Client hereby acknowledges to be reasonable,
including for the purposes of the Late Payment of Commercial Debts (Interest)
Act 1998, as amended.
6.5. levy the Charges set out in the Table of Charges for
any dishonoured cheque or defaulted instalment payment to cover administration
and bank fees;
6.6. terminate the Agreement.
7. Compliance
7.1. The Parties undertake to comply with the Legislation in
performance of the Agreement.
7.2. Any purported instance of non-compliance with the
Legislation shall not give rise to any remedies in contract or tort on the part
of the Client, in particular it will not give rise to any right to withhold,
reduce or refuse any payment due to
7.34. CWD may use handheld PDA devices to the details of any
Waste transfer into an electronic Waste transfer note, obtain the Client’s
signature thereon subject to clause 2.8 hereof and send an electronic Waste
transfer note by e-mail to the Client. The Client hereby agrees for Waste
transfer notes to be generated in this manner.
7.45. The Client’s signature (subject to clause 2.8 above)
of the Waste transfer note on the PDA device or hard copy of the Waste transfer
note (if any) shall constitute final and binding confirmation that Waste of the
type and amount stated therein has been transferred to CWD and that the Service
has been duly performed in accordance with the Agreement and Legislation.
8. Warranties
8.1. The Client warrants that:
8.1.1. it holds legal title to the Waste or else is a waste
broker for the actual Waste holder;
8.1.2. it understands and has complied with its duties as a
waste holder under the Legislation, in particular, without limitation, it has
applied the Waste hierarchy in accordance with the Legislation;
8.1.3. the Waste Description and any other information
contained within the Order relating to the performance of the Service by CWD
including, where applicable, data sheets, directions, design drawings and
plans, have been provided to CWD and are complete and accurate;
8.1.4. it shall provide CWD safe and unfettered access to
any Waste or place of performance of the Service at the latest upon CWD’s
arrival to the site;
8.1.4.2. between 6 am and 6pm unless otherwise agreed in
writing;
8.1.4.3. by HGV or other vehicle agreed in writing;
8.1.4.4. within 30 metres of a hard-standing area, unless
otherwise agreed in writing;
8.1.5. it has received clearance from an agreed disposal
site for receiving any harmful, hazardous or chemical Waste intended for
collection by CWD
8.1.6. all tanks containing Waste have been correctly and
fully vented prior to submitting an Order and prior to CWD’s performance of the
Service;
8.1.7. in the case of jetting works, all pipes, culverts and
other installations to be jetted are of sufficient strength and state of repair
to withstand high-pressure jetting;
8.1.8. it holds sufficient insurance to cover any risks it
undertakes or incurs hereunder;
9. Exclusion and limitation of liability
Other than as set forth in these terms and conditions:
9.1. CWD accepts no liability for damage caused to the
Client’s property, driveways, surfaces, drainage or other similar services over
which access is required as part of the supply of the Service;
9.2. CWD shall not be liable or responsible for any matter
beyond CWD’s reasonable commercial control;
9.3. CWD shall not be liable for any consequences of its
refusal to collect Waste that does not comply with the Waste Description.
9.4. CWD shall not be liable for any loss of production,
loss of profits, loss of business or any indirect or consequential damage
incurred by the Client, subject to clause 9.5, including without limitation,
any loss due to a delay in the performance of CWD’s services.
9.5. Subject to the foregoing, CWD’s liability:
9.5.1. for any default in the performance of the Services
shall be limited to the invoice value of the Services;
9.5.2 for any other loss shall be limited to £1,000,000.
9.5.3 Nothing in these Terms and Conditions shall be construed
so as to exclude or limit the liability of CWD for death or personal injury as
a result of the negligence of CWD or that of its employees or agents.
10. Indemnity
The Client shall hold harmless and indemnify CWD, its
directors, officers and employees in respect of any liabilities, costs,
expenses, damages and losses (including but not limited to any direct, indirect
or consequential losses, loss of profit, loss of reputation and all interest,
penalties, debt recovery costs as specified in clause 6 and legal costs,
calculated on a full indemnity basis, including in cases allocated to the small
claims track) suffered or incurred by CWD, arising from or in connection with
any breach of the Legislation, tort, wilful misconduct, negligent performance
of or failure to perform this Agreement by the Client, including but not
limited to:
10.1. claims brought or against CWD by third parties related
to contamination caused by the Claimant’s inaccurate description of the Waste
or inaccurate documentation;
10.2 debt recovery and/or litigation costs and expenses
incurred by CWD in connection with the non-payment of amounts due to CWD under
the Agreement.
11. Force majeure
CWD shall not be liable to the Client or be deemed to be in
breach of the Agreement by reason of any delay in performing or failure to
perform any of the Services in relation to an Order placed by the Client if the
delay or failure was due to any cause beyond CWD’s reasonable commercial
control, including without limitation: strikes, lock-outs or other industrial
disputes (whether involving the workforce of CWD or any other party), failure
of a utility service or transport network, act of God, war, riot, terrorist
act, civil commotion, malicious damage, compliance with any law or governmental
order, rule, regulation or direction, accident, breakdown of plant or
machinery, fire, flood, storm, adverse or severe weather conditions, severe
traffic congestion, closure of the relevant disposal site or default of
suppliers or subcontractors.
12. Duration and termination
12.1. The Agreement shall commence on the date the Order is
accepted and shall continue until terminated by either party in accordance with
these Conditions.
12.2. CWD may terminate the Agreement at any time without
notice if the Client:
12.2.1 commits a breach of any of its contractual
obligations;
12.2.2. commits a breach of the Legislation;
12.2.3. becomes Insolvent;
12.2.4. provides an inaccurate Waste Description.
12.3 The Client may terminate the agreement up to 3 days
before the Service is due to be performed. Any later termination shall entitle CWD
to charge an Abortive Fee for the Service.
12.4. Upon termination of the Agreement under this clause,
any Charge or other amount due hereunder shall immediately become due and
payable.
13. Amendments
Any amendments to the Agreement shall be made expressly in
writing with the consent of both Parties’ authorised representatives.
14. Waiver
No acquiescence, forbearance, delay or indulgence by CWD in
enforcing any of the terms of this Agreement or the granting of time by CWD to
the Client shall prejudice, affect or restrict the rights and powers of CWD
hereunder.
15. Severability
If any provision in these terms and conditions is held by
any competent court or other authority to be invalid or unenforceable in whole
or in part, the validity of the other provisions of these terms and conditions
and the remainder of the provision in question shall remain in force and effect
and the invalid or unenforceable provision or part of a provision shall be
replaced by a valid and enforceable provision or part of a provision reflecting
as closely as possible the wording and commercial intention of the invalid or
unenforceable provision.
16. Entire agreement
16.1. Subject to clause 2.3, these terms and conditions and
the Specific Terms agreed by the Parties constitute the whole Agreement between
the parties and supersede all previous written or oral arrangements between the
Parties relating to its subject matter.
16.2. Each party acknowledges that, in entering into this
Agreement, it has not relied on, and shall have no right or remedy in respect
of, any statement, representation, assurance or warranty (whether made
negligently or innocently) other than as expressly set out in these terms and
conditions.
17. Governing law
The Agreement shall be governed by and construed in
accordance with the laws of England and Wales.
18. Dispute resolution
The Parties shall attempt to resolve any dispute arising out
of or relating to this Agreement through negotiations between senior executives
of the Parties or their appointed representatives.
19. Jurisdiction and adjudication
19.1. Subject to clause 19.2, the Bedford County Court shall
have exclusive jurisdiction to consider any and all disputes arising out of or
in connection with this Agreement.
19.2.1. CWD may submit any dispute between the Parties which
cannot be resolved amicably for adjudication in accordance with s. 108 of that
Act and the Adjudication Scheme referred to therein;
19.2.2. the adjudication procedure shall be conducted in
accordance within the realms of the legislatives rules;
19.2.3. if the amount in question does not exceed £50,000,
the parties consent to the application
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