Terms and Conditions of the Supply of Services
Oran Environmental Solutions
In these Terms and Conditions and in the Agreement, the following words shall have the following meanings:-
"Agreement" means the agreement verbal or written between the Company and the Buyer for the supply of the Services and/or the hire or other supply of Equipment, incorporating these Terms and Conditions;
"Buyer" means the person(s), firm or company who purchases the Services and/or hires the Equipment from the Company;
"Company" means Oran Environmental Solutions Limited (company number SC382903) and having its registered office situated at 7 Hopetoun Crescent, EH7 4AY;
"Duration" means the period commencing on the Service Start Date until termination as stated in the Agreement unless terminated in accordance with the conditions of clause 12 of these Terms and Conditions;
"Equipment" means all classes of machinery, equipment, plant, tools and apparatus supplied under the Agreement (whether on hire or otherwise) together with all renewals and replacements thereof or the component parts thereof and all extras, additions, spare parts and accessories forming part thereof or used in connection therewith and shall include, without prejudice to the foregoing generality, lorries, trucks, trailers, skips, containers, compactors, balers, contrafuses and pumps;
"EPA" means the Environmental Protection Act 1990;
"Infrastructure" means the supply of all gas, electricity and drainage services;
"Landfill Tax" means the charge for this tax payable by the Buyer to the Company for waste uplifted and disposed of to landfill. Charge for Landfill Tax shall be determined by the weight being disposed of multiplied by the current Landfill Tax Rate for the waste type at the time of the uplift plus VAT payable thereon and is detailed in the Agreement;
"Services" means the services to be supplied under the Agreement by the Company to the Buyer which may include collection, transportation, processing, treatment, storage, uplifting, recycling, equipment hire, construction, installation or dismantling of equipment, disposal or destruction or other services at the locations and upon the instructions or other terms specified within in the Agreement;
"Service Start Date" means the date of the Agreement or if earlier, the date of delivery of the Services and/or Equipment; and
"Waste" means the waste described within the Agreement.
2. Application of Terms
2.1 The Agreement will be on these Terms and Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation, specification or other document even when referred to in the Agreement).
2.2 These Terms and Conditions (as varied in accordance with their terms) apply to all sales and quotations for Services or supply of Equipment made or issued by the Company and any representations made to or by the Buyer about the Services or the Equipment shall have no effect unless expressly agreed in writing and incorporated into the Agreement.
2.3 Any order for Services or Equipment placed by a Buyer with the Company shall be deemed to be an offer by the Buyer to purchase Services and/or rent Equipment from the Company subject exclusively to these Terms and Conditions and it is upon this basis alone that if such offer is accepted the Services and/or Equipment will be provided by the Company to the Buyer.
2.4 Any order placed by a Buyer shall be deemed to be accepted by the Company either expressly by a written acknowledgment by the Company or upon the commencement by the Company to deliver the Services to the Buyer.
2.5 The Buyer must ensure that the terms of its order and any applicable specification are complete and accurate.
2.6 The Company reserves the right to change the Terms and Conditions from time to time provided this is done in writing and notice is given to the Buyer of the amended Terms and Conditions.
3. Description of Services
3.1 The description of the Services shall be set out in the Agreement.
3.2 All technical data, descriptions and illustrations of the Services or Equipment in offers, leaflets and advertising material are illustrative only and subject to change without notice. They will not form part of the Agreement unless otherwise specifically agreed in writing.
4. Price for the Services
4.1 Unless otherwise agreed by the Company in writing, the price for the Services shall be (a) the price set out in the Agreement; or (b) where the Company cannot identify the extent, and therefore the cost, of the Services in advance of carrying them out, such reasonable charges as the Company shall subsequently make for carrying out the Services.
4.2 The price for the Services and/or charges for the Equipment shall be exclusive of any value added tax which the Buyer will pay in addition when it is due to pay for the Services and or the Equipment. .
4.3 All prices for the Services are quoted having taken into consideration the nature of the Services, level of urgency concerning the Services, the transport requirements involved in the provision of the Services and the timing and number of hours required. Should the nature of the Services to be supplied by the Company be varied after the commencement of the Services upon the Buyer's request, the Company will apply such additional charges as it deems reasonable in the circumstances. The Company shall take into account the provision of all equipment required and all additional administrative expenses and any additional costs in providing the Services on weekends, public holidays or local or statutory holidays as may be required to meet the Buyers' stated requirements.
4.4 The Company reserves the right upon giving notice in writing to the Buyer, at any time before the supply of any of the Services and/or Equipment or during the Duration, to increase the price for the Services to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company, such as, but not limited to, any alteration to or the enactment of any legislation regulations or any other enactment relating to the supply of the Services, significant increases to the cost of labour and fuel, any change in dates for the supply of the Services, which are requested by the Buyer, or any delay or other cost arising from any instructions of the Buyer (after the terms of the Agreement are agreed) or failure of the Buyer to give the Company adequate information or instructions necessary for the supply of the Services or Equipment.
5.1 Payment for the Services and/or Equipment and Landfill Tax and any other sums payable in terms of the Agreement are due within 30 days of the date of the invoice rendered by the Company to the Buyer.
5.2 No deductions shall be made by the Buyer from sums due to the Company for or on account of anything whatsoever including, but not limited to, any set-off, counter-claim or present or future taxes. The time of payment for the Services and/or Equipment shall be of the essence of the Agreement.
5.3 If the Buyer fails to pay the Company any sum due pursuant to the Agreement, the Buyer will be liable to pay interest to the Company on such sum from the due date for payment until payment is made at the annual rate of 8% above the base rate of the Bank of England, accruing on a daily basis.
5.4 The Company reserves the right to delay or suspend performance of the Services under the Agreement until any and all outstanding payments under the Agreement or any other contract between the Buyer and the Company have been received.
6.1 Unless otherwise agreed in writing by the Company, supply of the Services and/or Equipment shall take place at such locations within the United Kingdom and the Republic of Ireland as specified in the Agreement.
6.2 Any dates specified by the Company for the supply of the Services and/or Equipment are intended to be an estimate only and time for supply of the Services and/or Equipment shall not be made of the essence by notice from the Buyer. If no dates are specified within the Agreement, the supply of the Services and/or Equipment will be within a reasonable time.
6.3 Subject to the provisions of clause 13 the Company will be not be liable for any loss (including loss of profit), costs, damages, charges or expenses caused directly or indirectly by any delay in the supply of the Services and/or Equipment nor will any delay entitle the Buyer to terminate or rescind the Agreement unless such delay exceeds 30 days.
6.4 The Buyer will provide at such locations as are specified in the Agreement adequate and appropriate Infrastructure and access to facilitate the supply of the Services (the provision of which normally requires the use of heavy goods vehicles) including, but not limited to, the supply of appropriate roadways free from over hanging branches, appropriate man-hole covers and adequate protection for underground drainage runs.
6.5 If the Company supplies some but not all of the Services, the Buyer shall not be entitled to reject the Services or any part of them by reason of the shortfall and shall pay for such portion of the Services provided at the pro rata Agreement rate.
7. Risk, Use of Equipment and Title
7.1 The Equipment shall be supplied by the Company in good condition and the Buyer undertakes to inspect and examine the Equipment upon delivery and notify the Company in writing within twenty-four hours of any defect in the Equipment, otherwise it shall be conclusively presumed that the Buyer is in every way satisfied with and accept the Equipment.
7.2 The Buyer assumes (from the time of delivery until its return) the entire risk for loss, damage (whether malicious or accidental (fair wear and tear excepted)), theft or destruction to the Equipment, and shall immediately notify the Company in writing of any loss, theft or destruction of or damage to the Equipment or any part thereof.
7.3 If Equipment is being provided by the Company to the Buyer in conjunction with Services then the Equipment shall be used only for the provision of the specific Services and in relation to the specific Waste specified in the Agreement. The Buyer must ensure that the Equipment is only used in strict accordance with the practices demonstrated by a representative of the Company. The Buyer must not use the Equipment for any other purpose whatsoever. The Company shall be entitled to make an additional charge to the Buyer in respect of the Services provided in respect of the disposal of Waste which is not described in the Agreement or to refuse to provide the Services specified in the Agreement in connection with such unspecified waste.
7.4 The Equipment shall at all times remain the Company's sole and exclusive property and nothing herein contained shall be construed to imply that property or any right or title in and to the Equipment shall or may pass to the Buyer at any time whatsoever other than the Buyer's right of use in terms of these Terms and Conditions.
7.5 The Equipment shall be returned to the Company by the Buyer on termination of the Agreement. If the Equipment is not returned to the Company in the same condition as it was supplied (fair wear and tear excepted) the Buyer shall on demand pay to the Company the costs incurred by the Company for repair or (if the equipment is in the opinion of the Company beyond reasonable repair) replacement of the Equipment (on a like for like basis).
8. Risk & Property Relating to Waste and Hazardous Waste
8.1 Risk and property in respect of the Waste shall remain with the Buyer at all times.
8.2 The Company may in its sole and absolute discretion refuse to collect, handle or dispose of any waste material which the Company has cause to believe may be toxic, explosive, inflammable, special waste or otherwise dangerous or harmful to health or if the collection, handling or disposal of such waste material might cause the Company to incur any civil or criminal liability or unreasonable expense or unduly disrupt the Company's working schedule or lose any of its site licenses, permits or authorisations. The Company in such circumstances shall dispose of such waste material at an additional charge which will be met in full by the Buyer.
9. Environmental Protection Warranties
9.1 The Buyer warrants to the Company:-
9.1.1 for the purpose of the EPA that it is fully aware of its duties, obligations and responsibilities in terms of the EPA and shall comply in all respects with the EPA and/or any regulations made under it and all other United Kingdom legislation and regulations relating to the production, treatment, keeping, carrying or disposal of the Waste; and
9.1.2 that the description of the Waste in the Agreement is accurate and sufficiently detailed to enable the Company to comply with any statutory requirements or regulations applying to the Waste.
9.2 Without prejudice to clause 9.1, the Buyer shall:-
9.2.1 package and pack the Waste to avoid any leakage, spillage or other escape from control of the Waste;
9.2.2 ensure that the quantity of the Waste to be delivered or collected in terms of the Agreement corresponds as far as is reasonably practicable with the quantity and/or price specified in the Agreement;
9.2.3 inform the Company of any and all particular requirements/hazards relative to the Waste, full knowledge of which is required to enable the Company to comply with its duties under the EPA (all as defined by the EPA and/or any regulations made under it);
9.2.4 not place bins/containers on public roads including publicly maintained pathways unless the Buyer has obtained the necessary permits for occupation on public roads;
9.2.5 obtain any planning consent for containers located within designated conservation areas and/or within areas subject to other planning controls; and
9.2.6 where the Waste is comprised wholly or partly of Hazardous Waste (as defined by section 62 of the EPA and Control of Pollution (Special Waste) Regulations 1980 (as amended) ("the Regulations")), the Buyer confirms it is fully aware of its duties, obligations and responsibilities in terms of the Regulations and shall comply in all respects with the Regulations.
9.3 Without prejudice to the generality of the foregoing the Buyer shall:-
9.3.1 issue to the disposal authority for the area in which the Hazardous Waste is to be disposed of a copy of the consignment note, in accordance with the Special Waste Regulations 1996;
9.3.2 ensure that the special waste is accompanied by the requisite number of copy consignment notes, duly completed;
9.3.3 retain a copy of the consignment note, duly completed, all in terms of Regulations 4 and 5 of the Regulations;
9.3.4 keep, at the Buyers place of business, a register containing copies of all consignment notes relating to special waste produced/transferred for disposal, all in terms of Regulation 13 of the Regulations;
(all as defined by the Special Waste Regulations 1996).
9.4 The Buyer indemnifies the Company and shall continue to indemnify the Company without limitation against any and all costs, claims, demands, expenses and liabilities of whatever nature arising out of any breach by the Buyer of the conditions or the warranties in this clause 9.
9.5 The Company confirms that it is an authorised person pursuant to section 34 of EPA.
10. Prohibited Acts
10.1 The Buyer shall not and shall procure that third parties shall not;-
10.1.1 remove, damage, conceal or obliterate any of the Company's nameplates or markings on the Equipment;
10.1.2 overload or fill the Equipment with the Waste beyond the level specified by the Company or fill the Equipment with any other waste not specifically described in the Agreement;
10.1.3 use the Equipment for any purpose whatsoever other than that specifically related to the Services and Waste as specified in the Agreement;
10.1.4 use the Equipment in contravention with the practices demonstrated by a representative of the Company;
10.1.5 set fire to the waste material deposited in or the contents of the Equipment;
10.1.6 remove or relocate the Equipment from the location and place to which the Equipment is delivered by the Company; or
10.1.7 lose possession of or sub-let the Equipment to any third party whatsoever.
10.2 Should any of the above events occur whilst the Equipment is in the possession of the Buyer, the Company shall be entitled to increase the charges as it deems reasonable, with such assessment as to the amount of such additional charges to rest solely with the Company.
11. Cancellation and Default
11.1 In the event that the Buyer cancels the Agreement prior to commencement of the Services for any reason whatsoever, which cancellation can only be made with the Company's consent, then 40% of the price specified in the Agreement shall be paid by the Buyer to the Company, being the sum agreed as a reasonable payment for cancellation, together with all documented actual costs incurred by the Company, pursuant to preparing to perform the Agreement.
11.2 If the Buyer commits a breach of the Agreement or, without prejudice to the foregoing generality, if:- (i) the Buyer defaults in making any payments due under the Agreement or (ii) the Buyer commits any breach or non-performance of its obligations hereunder; or (iii) the Buyer ceases to carry on business; or (iv) the Buyer (being an individual) becomes apparently insolvent or is sequestrated, signs a trust deed for the benefit of creditors or enters into a formal arrangement for the benefit of creditors or (in the case of a body corporate) passes a resolution to be wound up, has a receiver, administrative receiver, administrator or liquidator appointed or enters into any formal voluntary arrangement for the benefit of creditors (or any similar process, agreement or appointment is made or commenced in any jurisdiction) or (v) execution is levied or diligence carried out against the Buyer or any of its assets, then the Company may terminate the Agreement with immediate effect by written notice whereupon the Buyer shall no longer be provided with the Services and the Company may take possession of and remove the Equipment and enter upon any place where the Equipment is located for that purpose without the need of the Buyer's consent (such consent being hereby expressly irrevocably granted to the Company and its authorised agents).
11.3 In the event of the occurrence of any of the matters set out in clause 11.2, the Company may terminate the Agreement. In these circumstances, termination will not discharge the Buyer from any of its pre-existing liability to the Company. On termination the Company shall be entitled to recover from the Buyer such loss, damages, costs and expenses the Company has suffered as a result of the termination.
The Company may terminate the Agreement at any time if the Buyer is in breach of any clause of the Agreement or .
13. Limitation of Liability
13.1 The following provisions set out the entire financial liability of the Company (including any liability for acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:-
13.1.1 any breach of these Terms and Conditions;
13.1.2 any use made by the Buyer of the Services and or the Equipment; and
13.1.3 any representation, statement, act or omission including negligent act or omission arising under or in connection with the Agreement.
13.2 All warranties, conditions and other terms implied by statute or common law are to the fullest extent permitted by law excluded from the Agreement.
13.3 Nothing in these Terms and Conditions excludes or limits the liability of the Company for (a) death or personal injury caused by the Company's negligence (b) any damage or liability incurred or suffered by the Buyer as a result of fraud or fraudulent misrepresentation by the Company.
13.4 The Company shall not be liable to the Buyer for any loss of profit, loss of business, depletion of goodwill or similar losses, loss of savings, loss of goods, loss of contract, loss of data or any claims for special, indirect, consequential or pure economic loss, costs, damages, charges or expenses whatsoever (howsoever caused) which arise out of or in connection with the Agreement or the Services and/or Equipment supplied under the Agreement.
13.5 The Buyer agrees that the Company's limit of liability in contract, delict, tort (including negligence or breach of statutory duty) arising in connection with the Agreement or the performance or contemplated performance of the Services or supply of the Services or Equipment shall be the lesser of (a) the total amount paid to the Company under the Agreement for the Services and Equipment supplied and (b) the sum of £2500. All claims must be submitted by the Buyer in writing within 30 days of the cessation of the provision of the Services by the Company.
13.6 In the event that the Buyer is a consumer as defined by the Consumer Credit Act 1974 (as amended) such consumer's statutory rights are not adversely affected by these Terms and Conditions.
13.7 The price for the Services is determined on the basis of the exclusions from and limitations of liability contained in these Terms and Conditions. The Buyer expressly agrees that these exclusions and limitations of liability are reasonable.
14. Buyer's Indemnity
14.1 The Buyer shall be responsible for and indemnify and keep the Company indemnified against any loss (including consequential or economic loss) which the Company may sustain in respect of damage to the Equipment (while the Equipment is in the possession of or under the control of the Buyer or the Buyer's employees or sub-contractors) and the property of the Company's employees or sub-contractors (while such property is in the possession of or under the control of the Buyer or the Buyer's employees or sub-contractors) whensoever and howsoever arising except to the extent such loss or damage is caused by the Company's negligence or that of the Company's employees or sub-contractors.
14.2 The Buyer shall be responsible for and indemnify and keep the Company indemnified against any loss (including consequential or economic loss) or damage which the Company may sustain or suffer by or as a result of a breach of the terms of the Agreement or these Terms and Conditions by the Buyer.
14.3 The Buyer's liability in terms of the indemnities in sub clauses 14.1 and 14.2 shall be without limitation.
15. Health and Safety
These Terms and Conditions shall constitute an undertaking, in terms of the Health and Safety at Work, etc Act 1974, as amended, and the Buyer hereby undertakes to ensure that its employees, agents and subcontractors are informed of the protective clothing, protections, handling requirements and conditions necessary to ensure that the Waste is handled safely and without risks to health or safety.
The Buyer shall arrange for appropriate and adequate insurance cover for the Equipment during the whole of the Duration against all risks at full replacement value and shall produce to the Company on demand evidence of such insurance and premium receipts if requested. All sums received from the Buyer's insurers shall be held by the Buyer as the Company's agents et separatim in trust for or on behalf of the Company and the Company shall be entitled to payment of all sums received by the Buyer from their insurers.
The Buyer will be responsible for payment to the Company of continuing hire charges and shall insure this risk as part of the insurance cover for the Equipment.
The Buyer agrees that any on board weighing equipment fitted to the Company's Equipment shall be used solely to determine the weight of Waste being uplifted.
18. FEL Containers and Eurobins
All lids must be closed by the Buyer prior to collection to prevent possible injury to personnel, wind scatter, damage to vehicles and FEL and Eurobins. If the lids are not closed by the Buyer the collection by the Company may be cancelled but the Buyer shall remain liable to the Company for payment of all sums due under the Agreement in respect of such collection (as if it had been carried out by the Company).
19. Force Majeure
The Company reserves the right to defer the date of delivery or to cancel the Agreement or reduce the volume of Services ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company, including but without limitation, acts of God, governmental actions, war or national emergency, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce) or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials.
20. Assignation and Sub-Contracting
20.1 The Buyer shall not be entitled to assign the Agreement or any part of it without the prior written consent of the Company.
20.2 The Company may assign or sub-contract the Agreement or any part of it to any person, firm or company.
21.1 If one or more of the provisions of the Agreement is invalid, illegal or unenforceable in any respect this shall not affect or impair the validity, legality or enforceability of the remaining provisions.
21.2 No failure or delay on the part of the Company to exercise any right, power, remedy or privilege shall operate as a waiver thereof.
21.3 Where the context allows, a reference to the singular includes a reference to the plural and vice versa and a reference to any gender includes a reference to all genders.
21.4 These Terms and Conditions shall supersede all previous estimates, quotations, arrangements or agreements (whether written or oral) relating to the provision and supply of the Equipment and the Services.
21.5 Every condition set out in a paragraph shall be construed as a separate and independent condition severable from all or any of the other conditions.
21.6 The headings are for ease of reference only and shall not affect the validity or interpretation of these Terms and Conditions.
21.7 Reference to a statute or statutory provision includes a reference to it as from time to time amended, extended or re-enacted.
Any notice required or permitted to be given by either party to the other under these Terms and 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 be at the relevant time have been notified pursuant to this provision to the other party giving the notice.
23. Applicable Law
The Agreement and these Terms and Conditions shall be construed in accordance with and governed by Scots law and the parties agree that the Scottish courts shall have non-exclusive jurisdiction in relation to any dispute or claim arising under or in connection with the Agreement.