TERMS OF SERVICE
1. DEFINITIONS
1.1. “Equipment” means the containers, bags, bins, skips, devices or other goods described in
the Service Contract as the equipment hired, leased or otherwise provided to the Customer
by or on behalf of KeyWaste Management Ltd (“the Company”) and designated for the
collection of Waste Material and/or Recyclable Material or any such equipment sold by
the Company to or previously owned by the Customer and designated by the Company for
the collection of Waste Material or Recyclable Material.
1.2. “Bags and/or Tags” shall mean the KeyWaste Management Ltd branded bags and bag
tags sold to the Customer by the Company and used to identify Waste Material or
Recyclable Material for Collection.
1.3. “Waste Material” shall mean all material in the categories set out in the Service Contract
which is produced by the Customer and placed in the Equipment for collection.
1.4. “Recyclable Material” shall mean all material in the categories set out in the Service
Contract which material is produced by the Customer and segregated and placed in the
Equipment or baled for collection and destined for recycling or recovery.
1.5. “Material” shall mean Waste Material and/or Recyclable Material.
1.6. “the Site” or “the Sites” shall mean, respectively, the location or locations indicated in the
Service Contract operated by the Customer where Waste Material and Recyclable
Material is to be collected.
1.7. “the Service Contract” shall mean the totality of the terms, whether express or implied,
whether or not in writing, that form the agreement between the Company and the
Customer for the Services. These Terms of Service, the information provided on the
Service Contract Form, and any supplemental terms or conditions now or subsequently
agreed in writing between the Customer and the Company together form the Service
Contract.
1.8. “Service Contract Form” shall mean any form officially designated by Company to record
information pertaining to the Services, and which is signed by Customer and Company.
1.9. “the Service” or “the Services” includes:
1.9.1. The supply of Equipment for use by the Customer at the Sites.
1.9.2. The collection and disposal of the Waste Material.
1.9.3. The collection and disposal or submission to recovery or recycling of the Recyclable
Material.
1.9.4. The provision of Bags or Tags.1.9.5. Any additional services expressly agreed between the Customer and Company.
2. SUPPLY OF SERVICE
2.1. The Company agrees to provide the Services to the Customer in a proper manner and in
accordance with the relevant statutory requirements relating to the performance of
services.
2.2. The collection frequency set out in the Service Contract is indicative only. The Company
shall have the right to make reasonable changes to collection dates and times in order to
meet operational requirements and where possible the Company shall give advance notice
of such changes to the Customer.
2.3. If the service is not carried out on the day specified in the Service Contract the Company
reserves the right to reschedule the provision of same to the next reasonable opportunity
and no claim shall lie against the Company by the Customer in this respect.
2.4. Except when the Services contracted under this Service Contract consist solely of the use
of Bags or Tags, and unless otherwise indicated in writing, the term of the Service
Contract commences on the date performance of Services actually begins and terminates
at the end of the specified Contract Term indicated in the Service Contract. Where no
Contract Term is specified, the term of the Service Contract ends after 12 months from
commencement. Customer may terminate the contract at an earlier date provided that the
Customer notifies the Company of such termination 30 days in advance of termination.
The Company may terminate the Service Contract at any time, at its sole discretion, for
any reason, with or without cause, and is not required to provide notice of such
termination to the Customer. In the event that the Customer terminates this Service
Contract after giving less than 30 days notice, the Company retains the right to charge the
Customer an amount equal to what would reasonably have been charged had the Services
been performed for 30 days minus the number of days of notice given. Unless otherwise
indicated in writing, Service Contracts subject to this provision shall be automatically
renewed at the end of the term of service unless Customer notifies Company, at least 30
days in advance of the automatic renewal date of its desire not to renew the Service
Contract.
2.5. If the Customer has contracted for Services consisting solely of the use of Bags or Tags,
and unless otherwise indicated in writing, the term of the Service Contract begins on the
date payment for the Bags or Tags is received and ends after 60 days of continuous noncollection of Material presented by the Customer, regardless of the reason for the noncollection. The Company may terminate the Service Contract at any time, at its sole
discretion, for any reason, with or without cause, and is not required to provide notice of
such termination to the Customer. The Customer understands that they are under no
obligation to use the Bags or Tags that they purchase but that the Company has the right
to not collect Material that is presented improperly, in accordance with Paragraph 3.2 of
these Terms of Service.2.6. The Company reserves the right to modify or amend these Terms of Service at any time,
with or without notice to Customer. Any such modifications or amendments may be
viewable by Customer on the KeyWaste website (www.keywaste.ie). Where this version
of the Terms of Service is different from the version of the Terms of Service on the
KeyWaste website, the version on the website is controlling.
2.7. In accordance with Paragraph 1.7 above, these Terms of Service may be supplemented by
additional terms of service, where agreed by Customer and KeyWaste.
3. CUSTOMER OBLIGATIONS
3.1. The Customer warrants that any information set out by the Customer in the Service
Contract (and in any subsequent correspondence) is correct, absolute and accurate in all
material respects and the Customer remains responsible for correctly describing such
information regardless of any analysis undertaken or advice given by the Company. If at
any time the Company becomes aware that the information provided by Customer is
incorrect, false or misleading then the Company may suspend the Service hereunder
and/or at the Customer’s expense return any Material to the Customer and/or require the
Customer to remove such Material from Equipment and/or require the Customer at the
cost of the Customer to deliver the Material to a facility entitled to accept such material
and/or adjust the price payable for the Services.
3.2. The Customer shall ensure that all waste to be collected is clearly and correctly labelled
with the appropriate Tag, placed securely within the appropriate Bag or deposited securely
in the Equipment. There shall be no obligation upon the Company to collect any Material
that is incorrectly tagged, bagged, loose or otherwise inappropriately presented unless a
specific agreement for such collection is made in writing expressly contravening this
provision. The Company reserves the right to charge a reasonable additional fee to cover
the cost of collection, transport and disposal of any Material inappropriately presented for
collection.
3.3. The Customer shall ensure that each category of Recycling Material as outlined in the
Service Contract shall be segregated or separated from other Waste and Recycling
Material. Failure to comply with this requirement or any contamination caused to
Recyclable Material that reduces its value shall result in the Company treating the said
Recyclable Material as contaminated and the Customer shall meet all costs associated
with its transport and disposal as Waste Material.
3.4. The Customer shall comply with all relevant legal or statutory requirements with regard to
the accumulation, storage, presentation for collection and any relevant treatment of
Material on its sites. The Company shall not collect any Material which collection would
result in a breach of environmental protection or other applicable laws. It shall be the
responsibility of the Customer to ensure that Material for collection is not presented in
such a way that constitutes a breach of such laws. Without prejudice to the foregoing, the
Company will assist the Customer in determining whether presentation or disposal of the
Material would be in breach of such laws.
4. PRICING AND PAYMENT4.1. The pricing of Services or Equipment shall be as detailed in the Service Contract.
However, the Company reserves the right to adjust its prices at any time throughout the
course of the Service Contract, including but not limited to, in reaction to any legislation,
rule, order or scheme made or proposed by any competent authority or legislative body
imposing on the Company or the Customer any sum, tax, levy or charge, or to any
increase in the applicable Landfill Levy or the Consumer Price Index.
4.2. Should any sum owed by the Customer to the Company become overdue for payment, the
Company may withhold any Equipment or Services under any contract without prejudice
to the Company’s rights and the Customer’s liability.
4.3. Unless otherwise agreed in writing, the purchase or rental price of all Equipment or Bags
or Tags sold to the Customer will be payable upon delivery of the Bags, Tags or
Equipment to the customer.
4.4. Prior to receipt of full payment of the purchase or rental price by the Company from the
Customer, the Company reserves the right not to perform the Services. In the event of
delay in collection caused by the Customer’s failure to make full payment, further charges
at the appropriate rate may be levied upon collection, where the delay has resulted in an
increase in the amount of Material presented or a change in the nature or type of the
Material presented.
4.5. Unless otherwise indicated in writing, all prices quoted or listed in the Service Contract
are exclusive of Value Added Tax which will be payable by the Customer at the
appropriate rate.
4.6. Should the weight or content of any bag or container exceed the maximum weight or
capacity allowed for such a bag or container, an additional charge may be levied by the
Company at its sole discretion, which charge factors the standard rate payable per tonne
for the contents of such bag or container and the excess weight of such bag or container.
4.7. The Company shall regularly invoice Customer for all scheduled Services and Equipment
purchases and rentals. Separate additional invoices may be provided from time to time for
any services performed for the Customer in addition to those specified in the Service
Contract
4.8. Unless otherwise expressly agreed in writing by the Company, invoices shall be paid
promptly and in full to the Company and the Customer shall have no right of set-off,
credit, counterclaim or lien or any similar right or claim in order to justify withholding
payment of any such amount in whole or in part.
4.9. Payments shall be made by direct debit, unless otherwise agreed in writing by the
Company. Company reserves the right to process Direct Debit payments in advance of the
Services being performed or the Equipment being delivered. Unless otherwise agreed,
non-payment after 30 (thirty) days shall entitle the Company to suspend Services but
without prejudice to any other remedy or right to receive payment, including the right to charge Customer the additional sum of interest at the rate of 2% per annum above the
prime lending rate of the Bank of Ireland.
4.10. The parties agree that the prices indicated in the Service Contract for Recyclable Materials
are indicative only and that the prices may vary from time to time depending upon market
conditions. Accordingly it is agreed that the Company may vary such prices from time to
time when it considers that a change to the Services has taken place.
5. DELIVERY OF SERVICES
5.1. In the event of delay on behalf of the Company, or should the Company be prevented
from making delivery of Equipment or performance of Services due to war, strikes, lockouts, fire, flood, explosion, labour disturbances, trade disputes, shortages in raw material
or due to any other cause whatsoever beyond the control of the Company, the Company
shall be at liberty to cancel or suspend delivery or Services without incurring any liability
for any loss or damage arising therefrom.
5.2. Should notification from the Customer of any damage, discrepancy or shortage in the
Equipment hired or sold or in the Services agreed not be forthcoming to the Company
within 48 hours of the time of delivery of the Equipment or scheduled performance of the
Services, the Company is excluded from liability for any such damage, discrepancy or
shortage.
5.3. With regard to skip hire and related services the Company shall, so far as is reasonably
practicable, give notice to the Customer of the approximate time of performance. In all
cases the Customer shall, either in advance or at the time of performance, specify the
location on site where delivery is desired, and in default of such specification, the
Company shall be entitled to deposit Equipment wherever the Company shall deem most
suitable, but without any liability or responsibility to the customer or any third party
arising out of the Company’s choice of such location of delivery.
5.4. At all times the Company reserves the right to refuse delivery of Equipment or
performance of Services where in the opinion of the Company, the particular location of
performance or delivery gives rise to a danger or risk being created thereby, in particular a
risk of danger or injury to third parties. The Company reserves the right to refuse
collection of Material placed in Bags or other Equipment where the weight of such bags
or Equipment exceeds the maximum weight allowed or where the Equipment is
overloaded or where the collection would risk the health, safety or welfare or the
Company’s agents or employees.
5.5. The Company reserves the right at all times to refuse delivery of Equipment or
performance of Services to any location or Site where such a delivery or use of the
Equipment would be contrary to any law or bye-law in force.
5.6. At any time before or after the date of creation of this or any other Service Contract the
Company reserves the right to require the Customer to produce evidence of a suitable
public liability insurance policy indemnifying the Company, its agents and employees, in respect of any third party claims that may arise from use of the Equipment hired or sold or
from performance of Services at the Site.
6. CUSTOMER DUTIES – PROPER USE OF EQUIPMENT
6.1. The Customer shall use Bags and Tags for their intended purposes only and shall under no
circumstances give, transfer, sell, hire or assign Bags or Tags to any third party, nor shall
they be used at any location other than the Sites described in the Service Contract. Should
the Company determine that Bags and Tags sold to the Customer have been used in
contravention of these Terms of Service, the Company may refuse collection of the
Material labelled with the Tags or placed in the Bags and may charge the customer an
appropriate fee to cover the cost of remedying any such misuse.
6.2. The Customer shall be required to take reasonable care of Equipment including, inter-alia,
bins, skips, compactors, balers and all other Equipment provided to or hired by the
Customer, and shall be liable for any damage howsoever caused to such Equipment
arising from any loss, neglect or default caused by the Customer or its agents.
6.3. Unless it has been made by the Company in writing, the Customer hirer shall not rely
upon any representation concerning any Equipment supplied.
6.4. The Company shall be excluded from liability for any loss or damage however arising,
resulting from the use or conversion of the Equipment by the Customer, and the Customer
shall indemnify the Company in respect of any claim by a third party for loss or damage
resulting as aforesaid.
6.5. The Customer shall use Equipment for disposal of Material in accordance with all
relevant laws and regulations, including the Waste Management Act, 1996, its subsequent
Amendments and associated Statutory Instruments, and specifically the Act’s provisions
on Toxic and Dangerous Substances, and shall not seek to deposit inappropriate materials,
hazardous or toxic waste, liquid waste or car tyres, paint tins, kitchen appliances,
batteries, asbestos or any other proscribed items in the Equipment.
6.6. Customer shall not overload any skip, bag or other Equipment and the Company reserves
the right to refuse to remove or collect waste from or via such Equipment in the event of
overloading or for other good reason, and the decision of the Company shall be final in
this regard. The Customer will be given the option of removing material to prevent
overloading.
6.7. The Customer shall have full responsibility for ensuring that the Equipment is adequately
stored, set out for collection and visible at all times, and that it shall not pose a hazard or
danger to any third party.
6.8. The Customer shall not move any skip from the point at which the Company delivers it.
6.9. The Company shall have the right to remove hired Equipment including skips and
containers without prior consultation with the Customer and without any liability arising out of the same. In such an event the Company will reimburse to the Customer the
proportion of hire relating to the period of such early collection.
6.10. With regard to the presence of the Equipment upon the Site the customer shall be wholly
responsible for the safety of any employees of the Customer or the Company or its subcontractors and any third party and the Customer shall carry out a proper and sufficient
risk assessment relating to the presence and use of the Equipment on site and for its use at
or removal from the Site by the company or its sub-contractors. The Customer shall
supply a written copy of any such risk assessment to the Company and communicate such
risk assessment to all relevant employees of the Customer. The Customer shall not place
any names, notices or labels on such Equipment without the consent in writing of the
Company or its sub-contractors.
6.11. At its discretion the Company may at any time during the course of the Service Contract
replace any hired Equipment with other Equipment of a similar standard and
specification.
6.12. The Customer shall immediately inform the Company upon becoming aware of any
Equipment that is not in working order or is in any way unsafe and shall forthwith cease
to use such Equipment until the Company has had the opportunity to inspect it and if
necessary repair or replace it. Any costs arising from such damage to the Equipment shall
be met by the Customer upon the basis set out in Paragraph 5.2 above. Should any of the
Equipment need to be replaced or repaired as a result of damage to the Equipment whilst
on any of the Sites then the Customer shall pay the cost of the replacement or repair. In
the event of any injury in connection with the use of the Equipment or if any reportable
incident takes place involving the Equipment or its use, the Customer shall inform the
Company immediately.
6.13. Without prejudice to the provisions in Paragraph 5.4, the Customer shall agree with the
Company an appropriate and safe location for the Equipment on the site and shall not
place the Equipment in any other location without prior written agreement of the
Company or its sub-contractor. In the absence of such an agreement, collection may be
suspended. The Customer shall be responsible for any liability arising out of the
positioning and/or use of the said Equipment during the period of hire.
6.14. The Customer shall ensure that the Company or its sub-contractors are given safe access
to the Equipment in the agreed location for the purpose of carrying out the services and
for inspection and maintenance of the Equipment and if necessary taking any samples of
any Material. In the event of failure to give such access, the Company shall be entitled to
suspend the Services for that Site. Upon termination of this Service Contract the
Customer shall forthwith provide safe access to enable the Company or its sub-contractors
to remove any Equipment remaining on any of the Sites.
6.15. The Customer shall not be responsible for reasonable wear and tear nor for any damage
caused by the negligence of the Company or its sub-contractors in relation to such
Equipment. 6.16. Should the Customer use its own Equipment for storage or treatment of Material, and
should Material collected from any Site be collected in or from any such Equipment, then
the Customer shall undertake a full and sufficient risk assessment of the operation of the
Equipment and its use by its employees, the company and the Company’s sub-contractors.
Furthermore the Customer shall effectively communicate such risk assessment to such
parties and shall keep such Equipment in good repair and condition and properly
maintained and safe.
7. INDEMNITY
7.1. The customer shall be responsible for all expenses arising with regard to any breakdown
and all loss or damage to the Company due to the Customer’s negligence, misdirection or
mistreatment of the Equipment, whether by the Customer or his employees, assigns or
agents.
7.2. The aggregate liability of the Company and its sub-contractors to the Customer (whether
in respect of claims in contract or negligence or breach of statutory duty or nuisance or
howsoever caused) shall be limited to and in no circumstances shall exceed
€2,650,000.00, provided that nothing in this Agreement shall have the effect of excluding
or restricting the liability of the Company or its sub-contractors for death or personal
injury resulting from the negligence.
7.3. The Company shall have no liability for any loss or damage arising from the acts,
omissions negligence or default of the Customer or its servants or agents and the
Customer shall indemnify the Company and its sub-contractors in respect of all costs,
claims, demands and expenses incurred as a result of the same.
7.4. The Customer hereby covenants throughout the term of the Service Contract to maintain
public liability insurance with a reputable insurer in the sum of not less than
€2,650,000.00 for any one occurrence or series of occurrences arising out of one event
and to provide proper evidence of the same to the Company, if so requested.
8. RETENTION OF TITLE
8.1. Legal title (notwithstanding delivery) of the property, Bags, Tags or other Equipment
intended to be sold shall remain with the Company until payment for the Equipment has
been received in full.
8.2. Notwithstanding 8.1 above, the risk in the Equipment shall pass to the customer upon
delivery (i.e. ex works) or as otherwise specified in the Service Contract.
8.3. The Company is excluded from liability for any damage to surfaces, manholes, walls or
property, caused by the Company vehicles or Equipment while on the Customer’s
premises, and the Customer will indemnify the Company in respect of any claim by a
third party for loss or damage resulting as aforesaid.
8.4. Ownership of and risk in Material shall pass from the Customer to the Company as soon
as a collection vehicle leaves the relevant Site, without prejudice to any remedy available to the Company under this Agreement. Thereafter the Company or its sub-contractors
shall be entitled to dispose of such Material as they may think fit.
9. LAW AND SEVERABILITY
9.1. The Service Contract and these Terms of Service shall be construed in accordance with
and governed by the Laws of the Republic of Ireland.
9.2. If any provision of the Service Contract or these Terms of Service is held unenforceable,
then such provision will be modified to reflect the parties’ intention. All remaining
provisions of the Contract and Terms of Service shall remain in full force and effect.