Standard conditions of supply definitions
In these Conditions the following words and expressions shall have the following meanings:
“Agreement” means the Chemical Treatment Service Agreement and incorporates these standard conditions of supply, special conditions (if any are stated) and any relevant Service Specification.
“Clinical Waste” means waste from a healthcare activity (including veterinary healthcare) that:
a) contains viable micro-organisms or their toxins which are known or reliably believed to cause disease in humans or other living organisms;
b) contains or is contaminated with a medicine that contains a biologically active pharmaceutical agent; or
c) is a sharp, or a body of fluid or other biological material (including human and animal tissue) containing or contaminated with a dangerous substance within the meaning of Council Directive 67/548/EEC on the approximation of laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances, as amended,
and waste of a similar nature from a non-healthcare activity.
“Collection Site” the address set out in Section 1 from which Waste is to be collected.
“Commencement Date” means the last date this Agreement is signed by both parties.
“Confidential Waste” waste that is expressly specified and labelled by the Customer as confidential.
“Consignment Note” written note prepared for the movement of Hazardous Waste or Special Waste (as the case may be) as required by Law.
“Container(s)” shall mean the receptacle (including but not limited to Equipment and Storage Bags) containing the Waste in which it is manually handled and disposed, whether provided by Biffa or not.
“Customer” means the customer further particulars of which are set out in Section 1.
“Demurrage” waiting time at the Collection Site not caused by Biffa
“Duty of Care” the duty of care for the collection and disposal of waste set out in s34 of the Environmental Protection Act 1990.
“Equipment” the containers specified in Section 2, owned by Biffa and provided to the Customer and any replacement of or addition to it.
“Excluded Waste” any waste, substance or material which is not Waste, any waste which is notified to the Customer by Biffa as waste which Biffa cannot collect or successfully dispose of because it is not accepted at the site at which it is to be disposed of or waste that is packed / packaged in such a way that it is unsafe to manually handle, collect or transport or which is unsuitable for carriage according to the Carriage of Dangerous Goods and Use of Transportable Pressure Receptacles Regulations 2009 (“CDG”), any Explosive Substance or Radioactive Material unless specifically agreed in writing by Biffa.
“Expected Frequency” means the frequency stated in Section 2 at which the Customer will make the Waste available to Biffa for collection.
“Explosive Substance“ is a substance as defined in the Carriage of Explosives by Road Regulations 1996.
“Good Industry Practice” the exercise of that degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected to be exercised by a skilled and experienced operator engaged in the same type of undertaking under the same or similar circumstance and conditions.
“Hazardous Waste” as defined by the Hazardous Waste (England & Wales) Regulations 2005.
“Human Hygiene Waste” known as Sanpro waste including sanitary towels, nappies and incontinence pads.
“Infectious Waste” means waste that contains viable micro-organisms or their toxins which are known or reliably believed to cause disease in man or other living organisms.
“Initial Period” means, unless stated otherwise in the Special Conditions, a period of 12 months from the Commencement Date.
“Law” any applicable legislation, EU regulation or directive having direct effect, provision of common law or the requirements of any government department, local authority or other public or competent authority, and guidelines contained in government waste management papers and codes of practice issued by the government for the waste disposal industry and which are relevant to the parties’ obligations under this Agreement, in each case having the force of law and any change to it then in force; In this agreement a reference to a statute or statutory provision includes any subordinate legislation made under it, any repealed statute or statutory provision which it re-enacts (with or without modification), any statute or statutory provision which modifies, consolidates, re-enacts or supersedes it.
“Maximum Container Weight” - the weight of the Container and Waste stated in the relevant Service Specification which has been set for the purpose of agreeing the Price.
“Maximum Safe Weight” - the maximum permitted weight of any Container and Waste stated in the relevant Service Specification.
“Minimum Quantity of Waste” - the quantity specified in Section 2.
“Non-Conformance Charge” - means an administration charge payable by the Customer to reflect the cost and expense incurred by Biffa as may be reviewed by Biffa from time to time.
“Offensive Waste” - means waste that:
a) is not Clinical Waste,
b) contains body fluids, secretions or excretions, and
c) falls within the description of code 18 01 04, 18 02 03 or 20 01 99 in the list of wastes established by Commission Decision 2000/532/EC replacing Decision 94/3/EC establishing a list of wastes pursuant to Article 1(a) of Council Directive 75/442/EEC on waste and Council Decision 94/904/EC establishing a list of hazardous waste pursuant to Article 1(4) of Council Directive 91/689/EEC on hazardous waste, as amended from time to time.
“Price” means the rates and prices for the Services set out in Section 2.
“Radioactive Material” as defined by the Environmental Permitting Regulations 2010 (in respect of England & Wales) and the Radioactive Substances Act 1993 (in respect of Scotland & Northern Ireland).
“Renewed Term” a renewed term referred to in clause 1.
“Service Specification” means the section or document described as such containing specific terms relevant to the type of service to be provided by Biffa pursuant to this Agreement and which may be amended by Biffa from time to time.
“Services” the collection and disposal of Waste, hire of Equipment or supply of Containers or other services as more particularly described in Section 2 and any relevant Service Specification.
“Special Waste” as defined by the Special Waste Regulations 1996.
“Storage Bags” bags used by the Customer (whether or not supplied by Biffa to the Customer) for the purpose of storing Clinical Waste, Human Hygiene Waste, Offensive Waste or Confidential Waste, and collected by or delivered to Biffa for disposal under the terms of this agreement which shall be in the colours, and with the appropriate seals in accordance with HTM 07-01 Safe Management of Healthcare Waste issued by the Department of Health and shall weigh not more than the tested weight displayed on the bag when filled and be not more than three-quarters full to facilitate correct closure.
“Technical Assessment” means the consideration and analysis of information (including the Waste Description) required by Biffa and based upon information provided by the Customer regarding the circumstances of production, the composition and the variability of the Waste, with the aim of ensuring that onward transport, storage, disposal, recovery, recycling or re-use will occur in compliance with all applicable Law.
“Term” the Initial Period and any Renewed Term.
“Vehicle” any vehicle, plant or equipment used by or on behalf of Biffa to deliver or collect the Equipment to or from the Collection Site, or to collect Waste from the Collection Site.
“Waste” the type(s) and quantity of waste described in Section 2 and which must comply with any restrictions or requirements detailed in the relevant Service Specification together with any other types of waste agreed in writing by Biffa.
“Waste Description” the description of the Waste set out in Section 2, any inventory, Waste Transfer Note and/or Consignment Note and given by the Customer to Biffa in accordance with the Duty of Care.
“Waste Transfer Note” the waste transfer note(s) completed by the Customer and transferred to Biffa to comply with the Duty of Care.
“Wasted Journey” means where Biffa is unable to provide the Services due to a breach by the Customer of any of its obligations in this Agreement or is otherwise unable to access the Containers in order to provide the Services for reasons beyond its reasonable control.
“Wasted Journey Charge” means a charge to be paid by the Customer that reflects the wasted cost and expense incurred or loss suffered by Biffa as a result of the Wasted Journey.
Subject to termination as set out in clause 13, this Agreement shall come into effect on the Commencement Date and shall remain in effect for the Initial Period. At the end of the Initial Period, or any subsequent term of it subject to renewal under this clause (“a Renewed Term”) this Agreement shall be renewed automatically for a period of 12 months (or other term as agreed in writing).
Unless stated otherwise in this Agreement during the period of this Agreement the Customer shall not obtain the Services or services substantially similar to the Services from any third party.
2. Obligations of Biffa
Biffa shall provide the Services. Time shall not be of the essence in the performance of its obligations under this Agreement.
Notwithstanding any times or dates given for performance of the Services Biffa may make such changes to the times or dates of performance as may be necessary due to its reasonable operational requirements and shall where possible give the Customer reasonable notice of such changes.
Biffa may sub-contract performance of the whole or any part of its obligations under this Agreement.
In performing the Service, Biffa shall comply with:
all special site conditions and safe working procedures, notified by the Customer to and agreed by Biffa in writing
Law relating to the performance of Biffa’s obligations; and
Good Industry Practice.
Biffa shall dispose of the Waste in accordance with the Duty of Care and Law.
3. Access to the collection site
Biffa shall deliver the Equipment to the Customer at the Collection Site in the quantity and for the period specified in Section 2.
The Customer shall ensure that there is suitable access to and egress from the Collection Site and that there are adequate and safe facilities for manoeuvring the Vehicle.
The driver of the Vehicle may in his absolute discretion refuse delivery of the Equipment or performance of the Services if he believes that the Collection Site is unsafe or likely to cause damage to the Vehicle or harm to other property and/or individuals or the Containers are unsafe or unsuitable for the Waste to be collected.
The Customer shall ensure that all persons acting for or on behalf of Biffa entering the Site shall be safe for the purposes of their visit.
The Customer shall grant Biffa such access to the Collection Site as may be required by Biffa without notice (if necessary) for the purpose of moving or maintaining the Equipment and performing the Services.
Biffa may charge and the Customer shall pay a charge for Demurrage in accordance with the relevant Service Specification. In the event of a Wasted Journey Biffa may charge and the Customer shall pay to Biffa a Wasted Journey Charge.
4. Equipment and containers
The Equipment and any Containers supplied by Biffa shall be deemed to be in good working order and condition (except for defects not discoverable by a reasonable examination) if the Customer has not notified Biffa within 2 working days of delivery of the Equipment or Containers.
Risk of any loss or damage to the Equipment or Containers supplied by Biffa shall pass to and remain with the Customer from the time when the Equipment or Containers first arrive at the Collection Site, except where the loss or damage arises from the negligence or wilful default of Biffa, its employees, agents or sub-contractors.
Unless agreed otherwise in writing the Equipment shall remain the property of Biffa and the Customer shall have no rights to it other than those set out in this Agreement. Where Biffa sells Containers to the Customer then property in the Containers shall transfer only when Biffa has been paid in full. Biffa does not warrant that the Containers will be fit for a particular purpose (even where that purpose has been made known by the Customer).
The Customer shall:
adequately insure the Equipment to its full replacement value;
be solely responsible for the safety, security and protection of the Equipment while it is at the Collection Site.
not damage, alter or fix anything to the Equipment;
not purport to charge, sub-let or part with possession of any Equipment;
not deposit or allow the deposit of any Excluded Waste or any waste, material or substance not conforming to the Waste Description in the Containers;
not burn any matter in the Containers;
not remove the Equipment from the Collection Site unless agreed in writing by Biffa; and
not overfill or overload the Containers (and where the Containers have a lid then that lid must be capable of being fully closed).
If the Equipment is lost, stolen or damaged (ordinary wear and tear excepted) the Customer shall indemnify Biffa in respect of such loss including the cost of repair or replacement and all other expenses. Any lost, damaged or stolen Containers not supplied by Biffa must be replaced at the Customer’s own cost.
The Customer shall be responsible for the siting and use of the Containers in a safe and secure location. Despite this, Biffa may advise the Customer on the siting of the Containers but without accepting responsibility. The Customer shall comply with any requirements or restrictions as to the location of the Containers contained in any relevant Service Specification.
Nothing in this Agreement shall require Biffa to place the Containers on a highway (whether public or private) or in a public place unless the Customer has obtained all permissions required and shall indemnify Biffa in respect of any loss or costs arising from breach of this clause.
Where Containers are not supplied by Biffa the Customer shall ensure that they are suitable for the waste material contained within, in sound condition and where appropriate compliant with Law and any certification standards described in or requirements of CDG.
5. Description and ownership of waste
In relation to the Waste, the Customer warrants that:
it has complied with all Law including but not limited to the Duty of Care;
the Waste complies with the Waste Description and that it is true, complete and accurate in all material respects;
the Waste does not contain Excluded Waste; and
it is the owner of the Waste.
If the Customer finds out that the Waste Description is inaccurate it shall immediately notify Biffa in writing.
If Biffa is notified under clause 5.2 or finds out (whether by sampling, testing or otherwise) that the waste made available for collection is different from that originally notified to it and or does not comply with the Waste Description then Biffa may (without prejudice to any other right or remedy available to it) do one or more of the following:
suspend performance of the Services;
adjust the Price;
levy a Non-Conformance Charge;
dispose of the waste at an alternative site licensed to take such waste at the Customer’s expense;
return waste that Biffa has been unable to dispose of to the Customer who is obliged to accept its return and who shall not refuse return delivery and entry at the expense of the Customer.
6. Collection and disposal of waste
The Customer shall make the Waste available for collection at the Expected Frequency.
If the Waste is made available for collection at less than the Expected Frequency then the Customer may be charged and shall be liable to pay Biffa as if the Waste had been made available for collection at the Expected Frequency.
Biffa will not be obliged to provide the Services where any Container is greater than the Maximum Container Weight.
Biffa may at its sole discretion provide the Services where any Container is greater than the Maximum Container Weight in which case Biffa may charge and the Customer shall pay a Non-Conformance Charge and/or adjust the Price.
Biffa may refuse to deal with any Excluded Waste or any Container above the Maximum Safe Weight and accepts no liability for the consequences of such refusal. In such circumstances Biffa may make and the Customer shall pay a Wasted Journey Charge.
Biffa shall acquire title to the Waste when collected from the Customer.
Title to, risk of loss and liability for any Excluded Waste shall remain with the Customer. The Customer shall indemnify Biffa against all costs and expenses connected with the collection of Excluded Waste.
Unless otherwise agreed it is the responsibility of the Customer to load Waste into the Equipment in accordance with any requirements or restrictions detailed in the Service Specification. Biffa may also give further instructions relating to the loading of particular waste and if so the Customer must comply with those instructions.
Unless otherwise agreed all other containers placed within the Containers must be sound, sealed and suitable for transport.
The Customer shall ensure that if mixtures of wastes are placed within Containers those mixtures shall be safe stable and non-reactive (and the Customer shall not mix Hazardous Waste with non-hazardous waste).
Prior to Biffa collecting any Containers from the Customer’s premises, the Customer shall, where required by Biffa, provide Biffa with an inventory of the Waste which has been placed within. Such inventory shall contain a full and accurate description of the waste as to its physical composition, concentration, quality and its originating process and shall at all times comply with any requirements or restrictions contained in any relevant Service Specification.
If the Waste is to be contained in bags then the Customer shall utilise the appropriate Storage Bags.
7. Price and payment
In consideration of the provision of the Services, the Customer shall pay to Biffa the amounts set out in Section 2. The amounts stated in Section 2 are exclusive of VAT and the Customer shall pay all sums due in respect of VAT in accordance with the invoice for the Services.
Biffa may make an additional charge for Services provided at the request of the Customer at times outside of normal working periods or which at the request of the Customer vary from the scheduled collection times.
Subject to any special terms agreed in writing between Biffa and the Customer in the Special Conditions, Biffa may invoice the Customer on or at any time after performance. Biffa will issue or make invoices available to the Customer in electronic form and may make an administration charge if the Customer requires a paper invoice.
All payments for the Services shall be due and payable within 30 days of the date of the invoice for the Service. The Customer shall raise any invoice queries or disputes within 14 days of the date of the invoice and the Customer shall nonetheless pay all undisputed parts of the invoice by the due date. All payments made by the Customer under this Agreement shall be made in full without any set-off or counter-claim whatever and the time of payment shall be of the essence of this agreement. The Customer may only make payment by direct debit, electronic bank transfer or by credit/debit card. Biffa may make an administration charge for any Customer not paying by direct debit.
Any sums which are not paid by the due date shall thereafter attract interest on a daily basis at a rate of 4% per annum above the base lending rate for the time being of Barclays Bank plc. Without prejudice to Biffa’s other rights in respect thereof, if the Customer defaults in payment by the due date of any amount invoiced for the Service, Biffa shall be entitled to withhold further performance of this Agreement until all arrears have been discharged by the Customer.
The Customer agrees that Biffa’s records will be proof of the Service provided.
Without prejudice to any other rights of Biffa, if there is or there arises reason to doubt that amounts due from the Customer will be paid in full then Biffa reserves the right to require payment in advance before commencing or continuing the Service, or at its sole discretion Biffa may terminate the Agreement forthwith.
8. Price adjustments
Biffa shall have the right to increase the Charge at any time if there is any variation in Biffa’s costs including (but not limited to) variations in wages, disposal costs, administration costs, cost of materials and Equipment, fuel costs, taxes, duties and cost of compliance with Law. Biffa shall endeavour to give the Customer not less than one calendar months’ notice of any variation of the Charge under this Clause but notwithstanding this the Customer shall be liable to pay any increase from the date specified in the notice.
9. Liability and indemnity
THESE CLAUSES SET OUT THE CUSTOMER’S RIGHTS IN RESPECT OF ANY LOSS OR DAMAGE CAUSED BY THE PROVISION OF THE SERVICE OR ANY STATEMENTS MADE BY BIFFA, ITS EMPLOYEES OR AGENTS. CUSTOMERS ARE ADVISED TO READ THESE PROVISIONS CAREFULLY AND TO CHECK THAT THEY ARE COVERED BY INSURANCE AGAINST ANY LOSS OR DAMAGE THAT THEY MAY SUSTAIN IN RESPECT OF WHICH THE POTENTIAL LIABILITY OF BIFFA IS OR MAY BE RESTRICTED OR EXCLUDED HEREUNDER.
Except as expressly provided in this Agreement, all terms implied by Law in relation to the provision of the Services by Biffa are excluded to the fullest extent permitted by Law.
No statement, description, information, warranty, condition or recommendation contained in any catalogue, price list, advertisement or communication or made verbally by Biffa shall be construed to enlarge, vary or override in any way any of the provisions of this Agreement.
Biffa accepts liability for death or personal injury to the extent that it results from its negligence.
Biffa shall not be liable to the Customer for any breach of this Agreement to the extent caused directly or indirectly by any act or omission of the Customer.
Biffa accepts no liability for any loss of or damage to any property of the Customer or property otherwise under its control.
Biffa shall not be liable to the Customer for indirect or consequential loss (including, without limitation, economic loss or loss of profits, production, business, reputation or goodwill) or for any damage or expense of any nature in connection with the provision of the Services.
In substitution for all rights which the Customer would or might have had but for this Agreement Biffa undertakes that if within 2 working days of performance of the Services it appears that such Services have been performed defectively or not at all Biffa will at its sole discretion either re-perform the Services or credit the Customer with the proportionate part of the Price.
Except as specifically provided elsewhere in this Agreement or as required by Law, Biffa’s liability to the Customer shall be limited to £50,000.
Without prejudice to any other rights or remedies available to Biffa the Customer shall fully indemnify Biffa against all losses and costs arising from:
any breach of the Customer’s obligations under this Agreement;
any act or default of the Customer;
any breach of Law by the Customer.
The provisions of this clause 9 shall survive the termination of this Agreement howsoever caused.
The Customer undertakes and agrees to take out and maintain insurance cover of a minimum of £5,000,000 to cover its liabilities under this
Agreement and agrees to produce at Biffa’s request a copy of the insurance policy or policies and the relevant renewal receipts for inspection by Biffa.
Biffa shall not be deemed to be in breach of this Agreement, or otherwise be liable to the other, by reason of any delay in performance or non-performance of any of its obligations under this Agreement to the extent that such delay or non-performance is due to any cause beyond its reasonable control including but not limited to the acts, defaults or omissions of suppliers or sub-contractors or strike, lockout or other form of industrial action, unavailability of Equipment, adverse weather conditions or sub-zero temperatures.
12. Suspension of services
Biffa may suspend performance of the Services if at any time it has reasonable cause to believe that the Customer will not be able to meet its obligations under this Agreement. Any suspension of Services shall not affect the rights of Biffa to payment.
Either party may terminate this Agreement by the service of notice which must satisfy all of the following requirements to be valid: -,
must be of not less than three months duration and not more than six months duration;
must be expressed to expire on the date which is three months after expiry of the Initial Period or any subsequent anniversary of the Commencement Date; and
must be given in the manner set out in Clause 17.
Biffa may by notice in writing immediately terminate this Agreement if the Customer shall:
expressly or impliedly repudiate this Agreement by refusing or threatening to refuse to comply with any provision of this Agreement;
be incompetent, guilty of gross misconduct and/or any serious or persistent negligence in its obligations under this Agreement;
commit a breach of this Agreement which in the case of a breach capable of remedy shall not have been remedied within 30 days of the receipt of a notice from Biffa identifying the breach and requiring its remedy; or
be unable to pay its debts or enters into compulsory or voluntary liquidation (other than for the purpose of effecting a reconstruction or amalgamation in such manner that the company resulting from such reconstruction or amalgamation if a different legal entity shall agree to be bound by and assume the obligations of the Customer) or compounds with or convenes a meeting of its creditors or has a receiver or manager or an administrator appointed or ceases for any reason to carry on business or takes or suffers any similar action which in the opinion of Biffa means that the Customer may be unable to pay its debts.
If Biffa terminates the Agreement under the provisions of this Clause or the Customer terminates the agreement prematurely or otherwise not in accordance with the terms of this Agreement then the Customer will pay to Biffa all costs, losses, claims, damages and expenses incurred by Biffa as a result of the Customer’s breach and the consequent termination.
Termination of this Agreement shall be without prejudice to any rights or liabilities of either party, which may have accrued up to the time of termination.
The rights and obligations of the Customer under this Agreement shall be personal and shall not be assignable without the prior written consent of Biffa.
The parties shall at all times keep confidential information, including but not limited to information related to Waste and Price, acquired as a result of the Agreement. This obligation shall not apply to information which either party is required to disclose under Law or where required by regulatory agencies or where necessary required for the performance of professional services.
This Agreement together with any documents referred to in this Agreement sets out the entire agreement and understanding between the parties in respect of the subject matter of this Agreement.
The Customer acknowledges that it has entered into this Agreement in reliance only upon the representations, warranties and promises specifically contained or incorporated in this Agreement and, save as expressly set out in this Agreement, Biffa shall have no liability in respect of any other representation, warranty or promise made prior to the date of this Agreement unless it was made fraudulently.
To the extent that any provision of this Agreement is found by any court or competent authority to be invalid, unlawful or unenforceable in any jurisdiction, that provision shall be deemed not to be a part of this Agreement, it shall not affect the enforceability of the remainder of this Agreement nor shall it affect the validity, lawfulness or enforceability of that provision in any other jurisdiction.
No purported variation of this Agreement shall be effective unless it is in writing and signed by or on behalf of each of the parties.
The rights, powers and remedies conferred on any party by this Agreement and remedies available to any party are cumulative and are additional to any right, power or remedy which it may have under general Law or otherwise.
Either party may, in whole or in part, release, compound, compromise, waive, or postpone, in its absolute discretion, any liability owed to it or right granted to it in this Agreement by the other party without in any way prejudicing or affecting its rights in respect of that or any other liability or right not so released, compounded, compromised, waived or postponed.
No single or partial exercise, or failure or delay in exercising any right, power or remedy by any party shall constitute a waiver by that party of, or impair or preclude any further exercise of, that or any right, power or remedy arising under this Agreement or otherwise.
Unless expressly provided in this Agreement, no term of this Agreement is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.
These Conditions apply to all agreements for the supply of the Services by Biffa and supersede any previous terms and conditions. No additions or modifications to or terms inconsistent with these Conditions shall be binding upon Biffa unless specifically agreed in writing by Biffa.
Biffa may require a credit application from the Customer and in processing the credit application the Customer consents that Biffa may make enquiries of credit reference agencies or other sources, who may keep a record of Biffa’s enquiry, and that Biffa may use any information obtained for the purposes of risk assessment, fraud prevention and for occasional debt tracing.
Any notice, demand, consent or other communication to a party under this Agreement shall be in writing signed by or on behalf of the party giving it and shall, unless delivered to a party personally, be left at, or sent by prepaid first class post, prepaid recorded delivery or email (but not by facsimile) to the address of the party as set out in this Agreement or as otherwise notified in writing from time to time.
Notices shall be deemed to be received on the working day following posting or, where delivered by hand or email, within 2 working hours on the same day.
18. Governing law and jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of England and Wales.
Each of the parties irrevocably submits for all purposes in connection with this Agreement to the exclusive jurisdiction of the courts of England.
Biffa reserves the right to amend this Agreement and any terms including the Conditions or Special Conditions as it considers necessary to comply with Law or Good Industry Practice from time to time or any change in Law governing the collection transport and disposal of Waste and will notify any such amendment to the Customer as soon as practicable.