TEL is providing services to its customer and requires the assistance of the supplier in the delivery and completion of those services.
This contract sets out the Terms and Conditions on which TEL agrees to purchase the services from the supplier.
1.1. In these Conditions, the following definitions and rules of interpretation apply:
Charges: the charges payable by TEL for the supply of the Services in accordance with clause 5.
Commencement Date: has the meaning set out in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 11.1.
Contract: the contract between TEL and the Supplier for the supply of Services in accordance with these Conditions formed in accordance with clause 2.
Contract year: a 12 month period commencing with the Commencement Date or any anniversary of it.
Customer: the person, firm or corporation for whom the Services are ultimately provided by TEL and any references to Customer in the Contract shall include those acting on its behalf.
Force Majeure Event: has the meaning set out in clause 11.8.
Laws: the laws, regulations, guidance, codes of practice, decisions of any courts and common laws (including but not limited to those (if any) listed in the Specification) that are applicable to (i) the Services in the jurisdiction in which they are provided, (ii) the operations and activities of the Customer and/or the Supplier in the jurisdiction in which they are undertaken, and (iii) the activities of the person or business to whom the Materials are being delivered.
Material: the materials that the Supplier is providing the Services in respect of, details of which are set out in the Specification.
Order: TEL’s written purchase order confirming its acceptance of the Specification.
Restricted Businesses: businesses that TEL is utilising in order to provide services to the Customer.
Services: the services to be supplied by the Supplier to TEL as set out in the Specification.
Specification: the written description or specification of the Services provided by TEL to the Supplier.
Supplier: means the supplier of the Services to TEL named in the Order and the Specification.
TEL: Totus Environmental Limited registered in England and Wales (reg no 07708260) of 1 Adams Court Adams Hill Knutsford Cheshire WA16 6BA United Kingdom.
1.2. a reference to any Law is a reference to such Law as amended or re-enacted. A reference to a Law includes any subordinate law made under that Law as amended or re-enacted;
1.3. words in the singular shall include the plural and vice versa; and
1.4. a reference to writing or written includes faxes and e- mails.
2. BASIS OF CONTRACT
2.1. The Order constitutes TEL’s acceptance of the Specification and represents TEL’s purchase of the Services in accordance with these Conditions.
2.2. The date on which the Order is received by the Supplier in accordance with these Conditions shall be the date the Contract shall come into existence (Commencement Date).
2.3. The Contract (including the Specification, the Order and these Conditions) constitutes the entire agreement between the parties. The Supplier acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of TEL which is not set out in the Contract.
2.4. In the event of any inconsistency between the Conditions and the Specification, the Specification shall prevail.
2.5. These Conditions apply to the Contract to the exclusion of any other terms that the Supplier seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing, other than any terms specifically set out in the Specification and accepted by TEL in the Order.
3. SUPPLY OF SERVICES
3.1. The Supplier shall from the Commencement Date and for the duration of this Contract provide the Services to the Customer in accordance with the terms of the Contract.
3.2. In providing the Services the Supplier shall:
(a) supply the Services to TEL in accordance with the Specification;
(b) to the extent provided in the Specification and as required by applicable Laws obtain, maintain and provide to TEL before the date on which the Services are to start and on request from TEL copies of all necessary permits, licences, permissions, consents, exemptions, certificates, authorisations and other information which may be required further to any applicable Laws to enable the lawful provision of the Services;
(c) provide the Services in accordance withany applicable Laws;
(d) use personnel who are suitably skilled, qualified and experienced to perform the tasks assigned to them;
(e) meet any performance dates for the Services provided in the Order and/or the Specification and/or notified in writing to the Supplier by TEL;
(f) provide TEL with such information and materials as it reasonably requires;
(g) co-operate with TEL in all matters relating to the Services and any regulatory authorities concerned with the Services;
(h) notify TEL in advance of the provision of the Services of any particular requirement relating to any safety or environmental protection requirement concerning the provision of the Services;
(i) not be able to amend or vary the Services unless as set out in clause 11.1;
(j) maintain adequate insurance cover to meet all claims against the Supplier and liabilities of the Supplier that may arise under the Contract;
(k) not do or omit to do anything which may cause TEL and/or the Customer and/or the site to which the materials are being delivered to lose any permits, licences, permissions, consents, exemptions or certificates or authorisations that they rely on for the purposes of conducting their businesses;
(l) immediately work with TEL to facilitate the return of the Materials to the Customer if for any reason including but not limited to any Force Majeure Event, breach of TEL’s contract with the Customer and/or failure by the person to whom the Materials are being delivered and/or further to applicable Laws the Materials do not reach and/or are rejected by those to whom they are being delivered.
3.3. The Supplier warrants to TEL that the Services will be provided using best care, skill and diligence in accordance with best practice in the Supplier’s trade.
3.4. Ownership of, title to and risk in the Materials shall remain with the Customer until the Materials have been accepted in accordance with applicable Laws by those to whom they are being ultimately delivered. Following such acceptance ownership of, title to and risk in the Materials shall pass to those to whom the materials have been delivered. If those to whom the Materials are being delivered refuse to accept the Materials then for the avoidance of doubt ownership of, title to and risk in the Materials shall remain with the Customer until the Materials are returned to the Customer. At no point and in no circumstances shall title to, ownership of and risk in the Materials ever vest in TEL or the Supplier, unless an act or omission of the Supplier or a breach of this Contract by the Supplier means it is fair just and reasonable in the circumstances for ownership of, title to and risk in the Materials to pass to the Supplier. TEL gives no warranty whether express or implied in relation to title in the Materials and/or their condition, content, quality or their fitness for purpose.
3.5. The Supplier hereby covenants to pay TEL on written demand an amount equal to any costs, charges, expenses, losses, liabilities, fines, and penalties sustained or incurred by TEL arising directly or indirectly, whether consequential, economic, financial or otherwise and whether foreseeable or not, from any breach by the Supplier of this Contract, negligence of the Supplier or breach of applicable Laws. This clause shall survive termination of the Contract.
4. TEL'S OBLIGATIONS
4.1. TEL shall in performing its obligations pursuant to this Contract:
(a) comply with all applicable Laws;
(b) ensure in so far as it reasonably can that the terms of the Order and any information it provides to the Supplier are materially complete and accurate;
(c) provide the Supplier with such information and materials as the Supplier reasonably requires in order to provide the Services in accordance with any applicable Laws, and ensure that such information is materially complete and accurate;
(d) co-operate with the Supplier in all matters relating to the Services and any regulatory authorities concerned with the Services;
(e) provide and/or procure for the Supplier, its employees, agents, consultants, subcontractors and their vehicles and equipment, access to the Customer's premises, office accommodation and other facilities as reasonably required by the Supplier to provide the Services;
(f) notify the Supplier in advance of the provision of the Services of any particular requirement of TEL and/or the Customer or any other party benefiting from the Services relating to any safety or environmental protection requirement concerning the provision of the Services; and
(g) maintain adequate insurance cover to meet any reasonably foreseeable liability that could arise under the Contract.
5. CHARGES AND PAYMENT
5.1. The Charges for the Services are set out in the Specification and shall be the full and exclusive remuneration of the Supplier in respect of the performance of the Services. Unless otherwise agreed in writing by TEL the Charges shall include every cost and expense of the Supplier directly or indirectly incurred in connection with the performance of the Services.
5.2. The parties agree and acknowledge that TEL shall be able to vary the Charges to reflect any foreign exchange fluctuations that result in a cost saving to the Supplier and/or result in any other financial benefit to the Supplier such that it is obtaining more by way of payment for the Services as a result of such fluctuation than was originally agreed between the parties.
5.3. The Supplier shall invoice TEL monthly in arrears. Each invoice shall include such supporting information as is required by TEL to verify the accuracy of the invoice.
5.4. TEL shall pay each such invoice within 30 working days of the date of the invoice in full and in cleared funds to the Supplier’s bank account detailed in the Specification.
5.5. Unless otherwise clearly specified all amounts payable by TEL under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to TEL, on receipt of a valid VAT invoice (including VAT reg. no.), pay to the Supplier such additional amounts at the same time as payment is due for the supply of the Services.
5.6. TEL may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Supplier against any amount payable by TEL to the Supplier.
6. INTELLECTUAL PROPERTY RIGHTS
6.1. All intellectual property rights howsoever arising in connection with the Services shall be owned by TEL and shall remain in the ownership of TEL.
6.2. The Supplier acknowledges that, in respect of any third party intellectual property rights, the Supplier’s use of any such intellectual property rights is conditional on TEL obtaining a written licence from the relevant licensor on such terms as will entitle TEL to license such rights to the Supplier. The Supplier should not assume the existence of such right but should instead confirm its existence with TEL.
6.3. No public announcement concerning this agreement shall be made without the prior written consent of the both parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
7.1. The Supplier shall keep in strict confidence and not use for its own or anyone else’s benefit or advantage all technical or commercial know-how, specifications, inventions, details, processes or initiatives which are of a confidential nature (including the terms of the Contract) and have been disclosed to the Supplier by TEL, its employees, agents or subcontractors (whether directly or indirectly), and any other confidential or proprietary information (howsoever recorded or preserved) concerning TEL’s business, its products, customers, suppliers, operations and services which the Supplier may obtain both before and after the Commencement Date, and any other information that is identified as being of a confidential or proprietary nature or which the Customer should reasonably have been aware to be of a confidential or proprietary nature (“Confidential Information”).
7.2. The Supplier shall keep the Confidential Information secret and confidential, not use or disclose the Confidential Information in any way except with TEL’s prior written consent, and only disclose such Confidential Information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the Supplier’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The Supplier may also disclose Confidential Information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This obligation shall apply even in circumstances where the Supplier has an existing relationship with another party whose details or services form part of the Confidential Information.
– Restrictions on Dealings
7.3. In order to protect TEL’s legitimate business interests, The Supplier covenants with and undertakes to TEL, that except with the prior written consent of TEL, it shall not (and shall procure that no member of the Supplier’s group of companies or any company associated with the Supplier shall) at any time say anything which may be harmful to the reputation or business of TEL, whether defamatory or otherwise, and at any time during the term of this agreement or the period of 12 months from the date of its termination:
(a) canvass, solicit or otherwise attempt to entice away or seek the custom of, or have any dealings with or accept any business from or otherwise enter into any negotiations or contractual relationship with any Restricted Party where such action has or is reasonably likely to have an adverse effect upon TEL; or
(b) induce or attempt to induce a Restricted Party to cease or refrain from conducting, or to reduce the amount of business conducted with or supply of goods and services to, or to vary adversely the terms upon which it conducts business with, TEL, or do any other thing which is reasonably likely to have such an effect
7.4. For the purposes of this clause 7, a Restricted Party shall mean any firm, company or person who is or has been at any time during the 12 months immediately preceding the Commencement Date a customer, supplier, or prospective customer of or supplier to, or in the habit of dealing with TEL or serviced by the Supplier as a supplier of TEL or whose details have been provided by TEL to the Supplier, or any member of that party’s group of companies or any of its associated companies.
7.5. Each of the restrictions set out in clause 7.3:
(a) is a separate undertaking and is intended for the benefit of, and shall be enforceable by, TEL and shall apply to actions carried out by the Supplier (or any member of the Supplier’s group of companies or any company associated with the Supplier) or any of its respective officers, employees, advisers, subcontractors and contractors in any capacity and whether directly or indirectly, on their own behalf or on behalf of, or jointly with, any other person; and
(b) does not apply to any contract already in place between the Supplier and any such Restricted Party as at the Commencement Date (Existing Services). In the event that a Restricted Party requests, enquires about or places any orders (howsoever arising) for any new, additional, different or complimentary waste streams, business, orders or services with the Supplier other than the Existing Services, the Restricted Party shall be immediately referred to TEL and the Supplier shall not deal with or accept or otherwise enter into any negotiations in respect of any such new waste streams, business, orders or services
7.6. This clause 7 shall survive termination of the Contract.
8. LIMITATION OF LIABILITY
8.1. Nothing in this Contract shall limit or exclude TEL’s or the Supplier’s liability for death or personal injury caused by its negligence or the negligence of its employees, agents or subcontractors, or any fraud or fraudulent misrepresentation, or any other matter which cannot by law be limited or excluded.
8.2. Subject to clause 8.1:
(a) TEL shall under no circumstances whatsoever be liable to the Supplier, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, sales or business, anticipated revenue or savings, loss or damage to goodwill, or any non-foreseeable, indirect, special, consequential, economic or financial loss arising under or in connection with the Contract; and
(b) TEL's total liability to the Supplier in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in each contract year in no circumstances exceed the total amount of the Charges paid by TEL in that contract year.
8.3. All warranties, conditions and other terms implied into this Contract by applicable Law, including any Incoterms or further to ULIS are, to the fullest permissible extent, excluded from this Contract.
8.4. This clause 8 shall survive termination of the Contract.
9.1. Without limiting its other rights or remedies, TEL may terminate the Contract by giving the Supplier 5 business day’s written notice.
9.2. Without limiting its other rights or remedies, TEL may terminate the Contract with immediate effect by giving written notice to the Supplier if:
(a) the Supplier commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of being required in writing to do so or repeatedly breaches the terms of the Contract in such a manner as to reasonably justify TEL’s opinion that the Supplier’s conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
(b) the Supplier suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(c) the Supplier commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Supplier or if an individual is the subject of a bankruptcy petition or order;
(e) a creditor or encumbrancer of the Supplier attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(f) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Supplier;
(g) the holder of a qualifying floating charge over the assets of the Supplier has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over the assets of the Supplier or a receiver is appointed over the assets of the Supplier;
(i) any event occurs or proceeding is taken with respect to the Supplier in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 9.2(b) to clause 9.2(h) (inclusive);
(j) suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
(k) the Supplier’s financial position deteriorates to such an extent that in TEL’s opinion the Supplier's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
9.3. Without limiting its other rights or remedies, TEL may terminate the Contract with immediate effect by giving written notice to the Supplier if the Supplier fails to pay any amount due under this Contract on the due date for payment and fails to pay all outstanding amounts within 7 days after being notified in writing to do so.
9.4. Without limiting its other rights or remedies, TEL may suspend the Contract or any other contract between the Supplier and TEL if the Supplier becomes subject to any of the events listed in clause 9.2(b) to clause 9.2(k), or TEL reasonably believes that the Supplier is about to become subject to any of them, or if the Supplier fails to pay any amount due under this Contract on the due date for payment.
10. CONSEQUENCES OF TERMINATION
On termination of the Contract for any reason:
(a) the Supplier shall immediately pay to TEL all of TEL's outstanding unpaid invoices and interest;
(b) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including but not limited to any rights TEL has further to clause 3.4 and 3.5, as well as the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
(c) clauses which expressly or by implication survive termination shall continue in full force and effect.
(d) the Customer shall continue to retain title and risk (including accrued liabilities in) all undelivered waste.
Except as set out in these Conditions, no variation of the Contract or the Services, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by TEL.
The Supplier and TEL shall at all times comply with all applicable Laws relating specifically to anti- bribery and anti-corruption.
11.3. Assignment and other dealings.
(a) TEL may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
(b) The Supplier shall not, without the prior written consent of TEL, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or e-mail.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 11.4(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second working day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by fax or e-mail, one working day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
(a) If any provision or part-provision of the Contract 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 modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
(b) If one party gives notice to the other of the possibility that any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
A waiver of any right under the Contract or applicable Law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
11.7. No partnership or agency.
Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
11.8. Force majeure.
(a) For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the parties including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of TEL or any other party), failure of a utility service or transport network or service, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, or storm.
(b) TEL shall not be liable to the Supplier as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
(c) If a Force Majeure Event prevents the Supplier from providing the Services for more than 4 weeks, TEL shall, without limiting its other rights and remedies, have the right to terminate this Contract immediately by giving written notice to the Supplier.
11.9. Dispute resolution.
If a dispute arises in connection with this Contract TEL’s managing director and the Supplier’s equivalent shall within 14 days of a written request from one party to the other meet in good faith in order to resolve the dispute. If the dispute is not resolved, the parties will attempt to resolve it by mediation in an appropriate forum agreed on by both parties. The commencement of mediation will not prevent the parties commencing or continuing court proceedings.
11.10. Third parties.
A person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
11.11. Governing law.
This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).