1. DEFINITIONS In this Agreement:
“Agreement” means these Terms & Conditions of Supply and the attached Schedule:
(a) as varied by RBS from time to time; and
(b) if applicable, renewed pursuant to clause 2.3.
“Commencement” means the nominated commencement date of the Services.
“Contract Sum” means the total of all amounts payable under this Agreement, which total has been:
(a) calculated by multiplying the sum of each of the Services supplied by the relevant Fees; and
(b) adjusted by any additions or deductions made pursuant to this Agreement.
“Customer” means a person, firm or corporation (jointly and severally if more than one), obtaining the Services, including that named as such in the Schedule.
“Equipment” means waste collection bins placed by RBS on the Customer’s Premises or any other premises required by the Customer.
(a) the nominated end date of the Services; or
(b) if this Agreement is renewed pursuant to clause 2.3, the end of the Further Term.
‘Fee’ means any nominated amount, rate, price, charge and/or fee for the provision of the Services, as varied in accordance with this Agreement. Fees are exclusive of GST (unless otherwise stated).
‘GST’ has the meaning in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
‘Interest Rate’ means a rate which is 2% greater than the average cash rate published on the relevant date.
“Recyclable Waste” means any reusable recyclable material including paper and cardboard, plastics and glass.
“RBS” means Rural Bin Services.
“Notification Period” means the period of not more than 30 days and not less than 10 days before Expiry.
“Premises” means the nominated service address.
“Schedule” means the ‘Service Agreement’ which is attached to these Terms & Conditions of Supply;
“nominated” means as specified in the Schedule.
“Services” means RBS’s provision of Equipment and collection and disposal of Waste under this Agreement as specified in the Schedule or as otherwise agreed between the parties.
“Special Waste” means any, volatile, liquid, flammable, explosive, toxic, prescribed, clinical and sharps, hazardous or dangerous goods or substances including asbestos, or any other goods or substances excluded from Waste by RBS’s written notice to the Customer.
“Waste” means all general household waste generated by or in the possession of the Customer at the Premises, excluding Special Waste.
2. INITIAL TERM AND AUTOMATIC RENEWAL
2.1 Unless terminated earlier in accordance with clause 4, the initial term of this Agreement is the period from Commencement until the nominated end date of the Services (“Initial Term”).
2.2 If one party notifies the other party in writing during the Notification Period that it does not wish to renew this Agreement, then this Agreement will end on the Expiry.
2.3 If notice is not given pursuant to clause 2.2, this Agreement will automatically renew on the same terms (including this automatic renewal clause) for a period of the same duration as the Initial Term (“Further Term”). The Initial Term and any Further Terms shall together form the term of this Agreement (“Term”).
3.1 The Customer must pay us the Contract Sum in consideration for the provision of the Services.
3.2 We will provide the Customer with a tax invoice for that portion of the Contract Sum referable to those Services supplied by us in advance of performance of the Service, plus GST (together ‘the Invoiced Amount’).
3.3 The Customer must pay us the Invoiced Amount in full by the due date stated on the tax invoice issue for the portion of the Contract Sum prior to the Services being completed. We may, acting reasonably, increase the Fees and/or the Contract Sum:
(a) on 30 days’ written notice to the Customer to reflect:
(i) increased operation or administration costs for us;
(ii) increased costs to us for a reason beyond our control, such as, but not limited to, increases in disposal fees, cost of fuel or consumables, levies, taxes or other charges imposed by a relevant authority or the introduction of, or change in, any law, by-law or regulation at any level of government; and/or
(iii) a change in the Consumer Price Index (but not more than once in a year).
3.4 If we have not received payment of the Invoiced Amount as cleared funds from the Customer by 5:00pm on the due date, then in addition and without prejudice to any rights or remedies available to us:
(a) the Customer will be liable to pay a charge of $5.50 or default interest on the Invoiced Amount for the period from the due date to the date of payment calculated at the Interest Rate, whichever is greater;
(b) the clause 3.4(a) charge or interest together with the Invoiced Amount will be immediately due and payable;
(c) we may require any future amounts invoiced to or owing by the Customer to be paid in advance of our performance of the Services;
(d) we reserves the right to suspend any Services under this Agreement; and
(e) the Customer will be liable for all costs reasonably incurred by us in connection with any debt recovery, legal proceedings and/or other action taken by us to enforce payment.
3.5 The Customer will be liable to pay a charge of $10.00 for each time that a direct debit payment is dishonoured.
4. TERMINATION AND SUSPENSION
4.1 We may immediately:
(a) terminate this Agreement, or terminate or suspend any or all Services if the Customer fails to pay an Invoiced Amount by the due date.
4.2 On termination under clause 4.1, we may, in addition and without prejudice to any other rights or remedies available to it:
(a) recover from the Customer:
(i) all amounts owing to us and not paid by the Customer up to the date of termination;
(i) reasonable legal costs incurred by us on an indemnity basis;
(ii) default interest calculated at the Interest Rate on the total of the clause 4.2(a)(i) and (ii) amounts from the date of termination until the date of payment by the Customer of the total of all amounts recoverable under clause 4.2.; and
(b) collect the Equipment.
5. CUSTOMER HOLIDAYS OR ABSENCE DUE TO MEDICAL REASONS
5.1 If the Customer does not require our waste collection services for a period of time because they are going on holidays or will be absent from the Premises due to illness or injury personally or within the Customer’s family, then the Customer must give us written notice, at least 14 days prior to the start of that period, that our services will not be required.
5.2 If notification is given in accordance with clause 5.1 above, then the Customer will not be liable to pay any Fees relating to the period of time that waste collection services are not required. For the avoidance of doubt, any outstanding Fees not relating to the period of time that waste collection services are not required remain due and payable in accordance with these terms and conditions.
5.3 If notification is not given in accordance with clause 5.1 above, then the Customer will remain liable to pay all Fees despite any period of absence from the Premises.
6. WASTE MATERIAL AND TITLE
6.1 We may agree to provide Services for Special Waste if the Customer fully and completely discloses the type and amount of Special Waste. If we do agree, the obligations of the Customer under this Agreement in respect of Waste also apply to Special Waste.
6.2 Title to all Waste vests in us on deposit in the Equipment.
6.3 Title to all Special Waste, and liability for risk in all Special Waste, remain with the Customer unless otherwise agreed in writing by us.
6.4 We will dispose of Waste and, if applicable, Special Waste, lawfully at licensed facilities.
6.5 The Customer must accept return, at the Customer’s expense, of any Special Waste.
6.6 We may agree to provide Services for Recyclable Waste. If we do agree, the obligations of the Customer under this Agreement in respect of Waste also apply to Recyclable Waste.
6.7 If the Service includes Recyclable Waste, the Customer will be provided with the required Equipment and relevant information as to the sorting procedures that the Customer will need to adhere.
6.8 The Customer agrees to sort the recyclable material into the appropriate Equipment in accordance with the sorting procedures, prior to RBS undertaking the Service.
6.9 The Customer acknowledges and agrees that if the Recyclable Waste is not sorted in accordance with the sorting procedures prior to the Service being completed, RBS may:
(a) refuse to collect the Recyclable Waste until the correct sorting procedures have been followed by the Customer; or
(b) charge a surcharge to the Customer for the separation of the Recyclable Waste to ensure acceptance of the Recyclable Waste at the relevant waste management facilities.
(c) dispose of the Recyclable Waste material into general landfill if found to be contaminated due to the correct sorting procedures not having been followed by the Customer.
7.1 The Equipment remains our property at all times.
7.2 From the time of delivery of the Equipment to the Premises until the Equipment is collected by us, the Customer must, at its expense:
(a) maintain the Equipment in a clean and sanitary condition;
(b) comply with any laws governing the storage of waste; and
(c) notify us if the Equipment is damaged, is in a dangerous condition or requires repair or replacement.
7.3 The Customer is responsible for any damage, theft, loss or destruction of the Equipment while on the Premises or in its possession or control, excepting normal wear and tear. In particular, in the event that one or more of the following waste collection bins are stolen, lost, destroyed or damaged to the extent that they are unusable, the Customer will be liable to pay the corresponding charge:
(a) 120 Litre bin – $80.00 ex GST
(b) 240 Litre bin – $110.00 ex GST
(c) 360 Litre bin – $140.00 ex GST
(d) 660 Litre bin – $660.00 ex GST
(e) 1100 Litre bin – $870.00 ex GST
7.4 The Customer must place the Equipment at the front of the Premises (or at a location on the Premises agreed between the parties) in order to enable us to access the Equipment and provide the Services. If the Equipment is inaccessible, we are not required to perform the Service.
7.5 By agreement between the parties, the Customer may supply their own garbage receptacle for the purposes of this Agreement. If the Customer provided their own receptacle:
(a) we are not responsible for any damage caused to that receptacle in the performance of the Service;
(b) we are not responsible for any costs associated with the repair or replacement of the receptacle; and
(c) if the receptacle requires replacement, the Customer agrees to us replacing the receptacle with Equipment provided by us in accordance with this Agreement.
7.6 The Customer must not:
(a) remove the Equipment from the premises to which it was delivered without our prior consent;
(b) use the Equipment for purposes other than depositing and storing Waste for collection and disposal by us;
(c) deposit any waste in the Equipment other than the Waste specified in this Agreement;
(e) in any way damage or deface the Equipment or remove, obscure, deface nor cover up any labels or identifying marks on the Equipment;
(f) overfill the Equipment with Waste or place Waste beside or on top of the Equipment; or
(g) use the Equipment for any purpose other than in accordance with this Agreement.
8. CUSTOMER WARRANTIES
8.1 The Customer warrants that, and undertakes to continue to ensure that:
(a) there is adequate access and safe passage at all times to the location where the Customer leaves the Equipment;
(b) there are no septic trenches, underground services or other underground assets at any location on the Premises over which we may need to access or may foreseeably drive over with our vehicles.
8.2 The Customer must notify us immediately if there are any relevant changes to anything that is the subject of a warranty in clause 7.1 above.
9.1 The Customer indemnifies us (except to the extent loss or damage is caused by our negligence or misconduct) against any loss or damage arising under or in connection with:
(a) breach by the Customer of:
(i) any warranty or other term of this Agreement;
(ii) any duty of care owed to us whilst on the Premises; and/or
(iii) any law or regulation;
(b) injury or death to persons, loss or damage to property or the environment caused by or in connection with use, storage or operation of the Equipment by the Customer; and
(c) damage to or loss of any Equipment while in the possession or control of the Customer or on the Premises.
10. EXCLUSIONS AND LIMITATIONS
10.1 Except as expressly stated in this Agreement, any term, condition or warranty express or implied by statute or otherwise in relation to the Services and/or this Agreement is excluded to the full extent permitted by law.
10.2 Nothing in this Agreement excludes, restricts or modifies the application of the Competition and Consumer Act 2010 (Cth), as amended, consolidated, supplemented or replaced.
10.3 To the full extent permitted by law, our liability arising under or in connection with this Agreement is limited at our option to the re-supply of Services or payment of the cost of re-supplying Services by a third party.
10.4To the full extent permitted by law, we are not liable for:
(a) any indirect or consequential losses, expenses, loss of turnover, profits, business or goodwill or any liability to any other party suffered by the Customer or any third party, however caused; or
(b) any loss or damage suffered by the Customer where we fail to meet any nominated times or cancels or suspends the supply of the Services.
11. FORCE MAJEURE
11.1 If we are prevented or delayed in performing any of our obligations under this Agreement or that performance is rendered uneconomic because of any event beyond our control (“Force Majeure Circumstance”):
(a) we will not be in default under this Agreement or liable for any loss, cost, expense and/or damage suffered by the Customer for that reason; and
(b) the performance of our obligations under this Agreement will be suspended for the period of delay or prevention due to the Force Majeure Circumstance.
11.2 If our performance of the Agreement is prevented or delayed due to a Force Majeure Circumstance for a continuous period exceeding three (3) months, then either party may terminate this Agreement by providing written notice to the other.
11.3 For the sake of clarity, a “Force Majeure Circumstance” includes, but is not limited to, inclement weather, mechanical breakdown, staff illness, natural disaster, emergency, closure of a tip or recycling centre typically used by us, one of our vehicles being damaged or vandalised, the owner of the Premises withdrawing their consent for us to access or be on the Premises, and contamination of one of our vehicles.
12.1 The Customer must not assign any of its rights or obligations under this Agreement without our prior written consent.
12.2 This Agreement will bind the successors and permitted assigns of the parties.
12.3 We may at any time at its discretion assign its rights and obligations under this Agreement AND subcontract any of the Services.