1. Definition and interpretations

1.1 These terms and conditions shall apply to all agreed regular collections of commercial waste and recycling in the form of Acceptable Waste (the Services) made by North Devon District Council of Lynton House, Commercial Road, Barnstaple, Devon EX31 1DG (the Council)

1.2 The Trade Waste Agreement prices are as set out in the Council’s current standard fees and charges as provided on the Council’s website (‘Council’s Fees’)

1.3 This Agreement applies to all collections of a container, containers or sacks (‘the Equipment’) whether from commercial premises, charities or schools. The Council shall only provide collections directly to the Customer(s) under the terms of this Agreement and the Customer must notify the Council if this Service is being arranged on behalf of a third party so that alternatives can be discussed. Failure to notify the Council as set out in this clause will be considered a breach of these terms and conditions and result in immediate contract termination as detailed at clause 7.3.3

1.4 Wherever referred to in this Agreement, the words ‘the Customer’ shall mean the party to this Trade Waste Agreement other than the Council

1.5 This Agreement relates to the collection of general refuse and/or recyclable material or any waste that is not Excluded Waste (Acceptable Waste)

1.6 For the avoidance of doubt this Agreement does not apply to Excluded waste that is not permitted to be presented to us at any time. A full list of Excluded Waste items will be listed here.

1.7 The Council reserves the right to add a category of waste set out in 1.6 Excluded Waste at any time, without prior approval of the customer. 

1.8 A Duty of Care Waste Transfer Note document must be completed annually in accordance with Section 34 of the Environmental Protection Act 1990 Duty of Care Waste Transfer Note. The Duty of Care Waste Transfer Note must be signed for and on behalf of the Customer and a copy returned to the Council before the first collection of waste can commence in any given contract year. The Customer is required to retain a copy (for a minimum of 2 years) and make it available for inspection on request

2. Term

2.1 This Agreement shall commence on the date the Customer signs the Duty of Care Waste Transfer Note annually and is therefore signing their consent to these terms with subsequent annual invoices for payment for the Services being generated on or around the 1 April in each contract year as provided in clause 2.2 below until this Agreement is terminated in accordance with Clause 7

2.2 Save as provided in clause 2.1 above, the contract year for this Agreement runs from 1 April until 31 March in any given year, agreements will automatically renew on 31 March unless and until this Agreement is terminated in accordance with clause 7

2.3 The Collection Period is the period of time of which your waste collections will be made and will be detailed in your agreement confirmation. For those customers on ticket arrangements, the collections will only occur when the Customer requests them via the commercial waste officer, the collection operatives will not visit the premises on a schedule. Any collections that are made without being booked by the office will be charged as “Side Waste” in accordance with clause 5.2

3. Responsibility for Equipment and Waste Material

3.1 The Customer agrees that the Equipment provided shall only be used for the storage of Waste as defined within the Duty of Care Waste Transfer Note for collection by the Council under the terms of this Agreement. The Equipment shall remain the property of the Council. Any identification marks indicating that the Equipment is the property of the Council shall not be removed or interfered with. The Council retains the right to inspect Equipment at random, and if found to be removed or interfered with, the Council may replace or repair the Equipment at the Customer’s cost.  The Customer shall not paint or otherwise mark the Equipment in any way and if the Customer does it will be liable for the repair, refurbishment or replacement of the Equipment.

3.2 The Equipment shall not be removed from the Collection Address detailed within this Agreement. If the Customer wishes to change the Collection Address and/or the Collection Point, the Customer must request this in written to the Council giving 28 days’ notice. The Council will review the request and provide a response within 5 working days.

3.3 The Council reserves the right to refuse to collect uncontained waste, loose waste, unidentified waste, compacted waste and waste placed in the wrong Equipment. Where the Council, at its sole discretion, collects these wastes, the Customer will be charged an additional collection rate subject to the Council’s current standard fees and charges.

3.5 The Council shall be entitled to take test samples and/or take photographic evidence of the Customer’s waste at any time during the term of this Agreement to satisfy itself that the Customer’s description of the waste is true, accurate and complete.

3.6 The Customer agrees to:

3.6.1 Site the Equipment, at the Collection Address or Collection Point as applicable, in a position which is unobstructed and safe to access at all times. All Equipment must not be kept  on pedestrian walkways or otherwise visible to the public, unless being presented for collection in accordance with clause 5.3. If the Equipment is inaccessible, the collection will not be made, and the Council reserves the right to charge an additional collection fee, according to the Council’s Fees, for any additional collection stemming from inaccessibility.

3.6.2 Not overload the Equipment by weight or volume, in accordance with the following maximum loads detailed. The Council reserves the right not to collect any loads above the weights detailed in this agreement. Should overloading occur when the Equipment is collected as part of pre-defined waste collections, additional charges may be made at the Council’s discretion in accordance with the Council’s Fees which are updated and published annually on the Councils website.

3.6.3 Keep the Equipment lid closed other than when the Equipment is being loaded or unloaded and ensure that all sacks are securely tied closed.

3.6.4 Ensure that no items are burnt or are allowed to burn in the Equipment.

3.6.5 Ensure that contains an accurate description of the nature and characteristics of the waste and is completed and returned within 2 weeks of receipt and furthermore shall ensure you promptly inform the Council in writing of any alteration to particulars entered on this Agreement including title of premises, full name of the company/partnership/sole trader and other relevant details. The Council may at its discretion suspend or delay waste collections until such time as the necessary paperwork has been completed and returned by the Customer.

3.6.6 Ensure that the Equipment is clean and in good repair and immediately inform the Council of any defect affecting its operation. In accordance with clause 3.5 above the Customer will be held liable for the cost of any cleaning, repair or replacement of lids or any other part or the whole of the Equipment where this is deemed necessary by the Council, acting reasonably.

3.6.7 Only present for collection Waste as detailed within the Duty of Care Waste Transfer Note and not any waste that is likely to cause damage to the Council’s mobile compaction equipment. The Customer will be liable for any damage caused to the Council’s mobile compaction equipment as a result of disposing of waste which is Excluded Waste.

3.6.8 Allow the Council and its agents entering the premises where the Equipment is kept at any time with or without vehicles and with or without notice for the purposes of assessing and/or removing the Equipment.

3.6.9 Ensure that the Council, its staff, agents and sub-contractors shall not suffer any abuse, whether physical or verbal in the provision of the Services to the Customer.

4. Excluded Waste

4.1 The Customer shall only present Acceptable Waste in the Equipment for collection by the Council.

4.2 The Customer shall not present or place Excluded Waste in the Equipment for collection. Excluded Waste left in the Equipment shall not be collected by the Council nor shall the Council collect the Equipment until such time when the Excluded Waste has been removed. In the event the Council does without knowledge collect Excluded Waste, the Customer shall be liable for the full cost of any additional charges incurred by the Council in disposing of the Excluded Waste, according to the Council’s Fees detailed as a Contamination Charge.

4.3 The Council will not be liable for any costs incurred during any disposal of the Customer’s Excluded Waste.  Any additional charges incurred by the Council pursuant to clause 4.2 and generally under this agreement shall be payable by the Customer within 5 days of a demand for such payment.

4.4 The Council will monitor acts of contamination; each act of contamination will result in a formal written warning being issued by a Commercial Waste Officer up to a maximum of three written warnings within a six month period, after which the agreement will be terminated without notice to the Customer. 

4.4.1 The Customer will not be entitled to a refund. 

4.4.2 The Council is under no obligation to reinstate the agreement

5. Presentation

5.1 The Customer will present all Equipment kerbside for the Council to collect in accordance with this Agreement, unless there is a specified Collection Point that has been agreed in writing with a commercial waste officer. 

5.2 All waste presented must be within the Equipment and not to the side or on top of the Equipment; any waste that is not inside the Equipment will be classified as side waste and will be charged separately, according to the Council’s Fees detailed as a Side Waste Charge.

5.3 Waste must be presented by 6am on the scheduled day of collection, and no earlier than 6pm the night before.

6. Charges and Payment

6.1 The Customer will be advised of the Council’s Fees current as at the date of signing this Agreement, the Council’s Fees will only be valid up to and including the end of March in any year after which time it will be subject to adjustment by the Council. The Council shall issue invoices for the charges for the Services based on the Council’s Fees current at that time.

6.2 If applicable the Customer must provide proof to the Council on an annual basis that it benefits from Small Business Rates Relief (SBRR).  Where the Customer is able to evidence that it does benefit from SBRR it will be able to take advantage of the schedule 2 pricing as detailed within the Council’s Fees.

6.3 As part of the application process the Council will conduct due diligence checks such as Companies House and/or checks against the business to ensure that the information provided by the Customer is accurate and up-to-date. All agreements must be made with an authorised person on behalf of the Customer however day-to-day activities and requests can be allocated by the Customer to an appointed person (the contract holder). The Contract Holder will be the person responsible for this Agreement and agrees to pay all fees in full to the Council. If at any point the Customer changes ownership or Contract Holder it must notify the Council in writing to without delay and provide up to date signed documentation as required by the Council.

6.4 If for any reason the business of the Customer is sold or transferred the Contract Holder is required to provide the Council with at least 14 days’ notice. The original Contract Holder will be liable for all costs and outstanding invoices.

6.5 Payment shall either be made: -

6.5.1 annually in advance. The first payment shall be paid within 30 days of the date of the invoice from the Council. Where appropriate, the invoice will include a proportion of the said annual amount calculated from the date of commencement of the Services to the 31st March in each year of this Agreement; or

6.5.2 if agreeable to both Parties, payment can be made by way of direct debit, payable over either 6 or 10 monthly instalments dependent on the length of The Customer’s agreement. If the Customer’s collection period is annual the invoice can be paid over 10 monthly instalments. If the Customer’s collection period is summer only the invoice can be paid over 6 monthly instalments.

6.6 Any changes made to the Services provided which are at the Customer’s request shall be subject to the payment of a fixed fee to cover an administration cost, as detailed in the Council’s Fees as current at the time of the adjustment to the Service. This fee will become automatically due for payment and no changes will be made to this Agreement until the fee is paid in full.

6.7 The Council’s Fees for the Services are available on the Council’s website or on request from the Trade Waste Team this includes details of any additional charges which may be applicable in certain circumstances for contract amendments, cancellations and other matters individually covered within the terms and conditions of this agreement.

6.8 The Council reserves the right to adjust the published Council’s Fees for the Services to reflect any increase in market conditions or additional costs incurred to the Council for the Services and shall give the Customer 28 days’ notice of any increase and the date when the said increase shall come into effect.

6.9 We require payment in advance for our trade waste blue refuse bags these can ordered online or via customer services.

6.10 The customer shall not transfer, assign or sub-contract directly or indirectly, any portion of this contract without the prior permission of the Council.

7. Default in Payment and Termination

7.1 In the event that the Customer is in arrears with any payments under this Agreement for a period of 30 days or more the Council may, in its absolute discretion cease to carry out its obligations under the terms of this Agreement without further reference to the Customer. Interest shall be payable by the Customer on the late payment of any undisputed charge properly invoiced under this Agreement, interest can be applied at the appropriate rate from the Bank of England base rate from time to time. Should the Customer fail to make such payment, the Services may also be suspended until any outstanding payment is received. Such arrears of payments shall be considered a debt due to the Council from the Customer, recoverable by action.

7.2 Failure to pay an invoice may also result in recovery charges and recovery action by the Council. Once a trade waste agreement has been terminated if the Customer wishes to reinstate this Agreement the Customer will also be liable for a returns charge. This Agreement will not be reinstated and the Equipment will not be returned until the account balance is settled.

7.3 This Agreement may be terminated in the following circumstances:

7.3.1 the Customer giving 90 days’ written notice of termination to: Trade Waste, Brynsworthy Environment Centre, Barnstaple EX31 3NP or via email to tradewaste@northdevon.gov.uk, or

7.3.2 the Council giving 90 days written notice of termination to the Customer at the address specified in this Agreement and/or the Customer’s last known private registered or business address.

7.3.3 the Council giving immediate notice to terminate if the Customer commits a material breach of any of the terms of this agreement, or

7.3.4 the Council gives notice to the Customer to remedy a breach and the Customer fails to remedy that breach within 30 days of being notified in writing of the breach by the Council, or

7.3.5 the customer pays three months’ worth of the agreement upfront to terminate this Agreement with immediate effect

7.3.6 the Customer becomes Insolvent (meaning:

7.3.6.1 if the Customer is an individual, that individual or where the Customer is a partnership, any partner(s) in that firm becomes bankrupt or shall have a receiving order, administration order or interim order made against him, or shall make any composition or scheme of arrangement with or for the benefit of his creditors, or shall make any conveyance or assignment for the benefit of his creditors, or shall purport to do so, or any application shall be made for sequestration of his estate, or a trust deed shall be granted by him for the benefit of his creditors;

7.3.6.2 if the Customer is a company, the passing by the Customer of a resolution for its winding-up or the making by a court of competent jurisdiction of an order for the winding-up of the Customer or the dissolution of the Customer, or if an administrator is appointed, or documents are filed with the court for the appointment of an administrator or notice of intention to appoint an administrator is given by the Customer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or the appointment of a receiver over, or the taking possession or sale by an encumbrancer of any of the Customer's assets, or if the Customer makes an arrangement with its creditors generally or makes an application to a court of competent jurisdiction for protection from its creditors generally; and

7.3.6.3 any event in any jurisdiction other than England and Wales which is analogous to any of the above;

7.4 Upon termination of this Agreement, the Customer shall immediately make available and the Council shall collect the Equipment from the Customer’s premises for reuse. The Customer shall immediately pay all sums due under this Agreement including any additional costs of repair, replacement or cleansing of the Equipment deemed necessary by the Council following termination.

7.5 If this Agreement is terminated by the Council due to non-payment of charges under this Agreement and the Customer’s Equipment is removed by the Council, before this Agreement is reinstated necessitating the supply of further Equipment, the Customer shall pay the Council an additional fixed fee to cover the costs of supplying the further Equipment as detailed in the Council’s Fees current at the time of the reinstatement of the Service.

7.6 Subject to any outstanding costs (including any applicable cancellation charges) due to the Council under this Agreement which shall be deducted first, upon termination of this Agreement, the Customer will be entitled to a refund of any overpayment in respect of any unexpired period of Services which the Council did not supply as determined by the Council

7.7 When an agreement is terminated by either party the Customer understands that they have an obligation to set up alternative provision with a licenced waste disposal provider without delay.

8. Damage to Surfaces and Third-Party Property

8.1 Subject to clause 9.5 below, the Council shall not be held liable for any damage to the Customer’s property or premises or other parties’ property or premises resulting from the Council providing or attempting to provide the Services.

9. Liability

9.1 If at any time during the continuance of this Agreement it shall become impossible by reason of operational difficulties to the fleet or services, for the Council to carry out their duties as contained under this Agreement on the scheduled day, the Council reserves the right to re-schedule collection to the earliest possible opportunity without prior notice to the Customer or cost to the Council. The frequency of the service may also be varied by the Council during Bank Holidays, other notified holidays, and emergencies and at such other times as is considered appropriate giving such notice to the Customer as is reasonable in the circumstances.

9.2 If at any time during the continuance of this Agreement it shall become impossible by reason of any strike or employment dispute, or other occurrences whatsoever beyond the control of the Council, for the Council to carry out their duties as contained under this Agreement, the Customer shall not have a claim for any damages in respect of such omission by the Council to carry out such duties.

9.3 For the term of this Agreement, the Customer shall make good to the Council at full replacement cost all losses of or damage to the Equipment from whatever cause the same may arise, fair wear and tear expected, and shall also fully and completely indemnify the Council in respect of all claims by any person whatsoever for injury to person or property caused by or in connection with or arising out of the Customer’s use of the Equipment, and in respect of all costs and charges in connection therewith, whether arising under statute or common law.

9.4 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this agreement

9.5 Nothing in this agreement limits or excludes the liability of the Council for death or personal injury resulting from negligence of the Council.

10. Indemnity in relation to acts, defaults and negligence of the Customer

10.1 The Customer shall be liable, and shall fully indemnify, and hold harmless, the Council, its officers, employees and agents against all liabilities, damages, costs, charges, expenses, losses, claims, demands and proceedings incurred or suffered whatsoever (including for the avoidance of doubt but without limitation), injury (including death) to any persons, loss, howsoever arising, be it directly, or indirectly, out of the act, default or negligence of the Customer, its employees or agents in connection with the Customer’s rights under this Agreement.

11. Insurance

11.1 During the term of this Agreement and for a period of 6 years thereafter the Customer (but without limiting its obligations and responsibilities under the indemnity given by this Agreement herein) shall have in force with a reputable insurer public liability insurance for such sum and range of cover as the Council deems to be appropriate but covering at least all matters which are the subject of indemnities or compensation obligations under these conditions in the sum of not less than £5 million for any one incident and unlimited.

11.2 The policy or policies of insurance referred to in clause 11.1 shall include a term whereby in the event of any claim in respect of which the Customer would be entitled to receive indemnity under the policy being brought or made against the Council, the insurer will indemnify the Customer against such a claim and any costs, charges and expenses in respect thereof. The Customer shall, whenever required, produce to the Council the policy or policies of insurance and receipts for payment of the current premiums and in the event that there is evidence that any required insurance is not in force the Council may effect and keep in force any such insurance and the Customer shall pay to the Council any sums expended by it for such purposes.

12. Dispute Resolution Procedure

12.1 In the first instance the Council’s Business Support Manager shall discuss any issues with the Customer to try to resolve any disputes or issues. However, at all times the Customer has the right to follow the Council’s complaints procedure and will be directed to this content on the Council’s website by the Business Support Manager or a commercial waste officer at the Council.

13. Information

13.1 The Customer acknowledges that the Council is subject to the requirements of the Freedom of Information Act 2000 and the Environmental Information Regulations 2004 and shall assist and co-operate with the Council (at the Customer's expense) to enable the Council to comply with these Information disclosure requirements.

13.2 The Council shall be responsible for determining at its absolute discretion whether any information is exempt from the legislation set out in clause 13.1.

13.3 In no event shall the Customer respond directly to a Request for Information unless expressly authorised to do so by the Council.

13.4 To the extent relevant to this Agreement the Parties agree to comply with the Data Protection Act 2018 and the General Data Protection Regulation (as amended or re-enacted from time to time) and any other applicable data protection legislation in relation to any Personal Data (such term as defined by the Data Protection Act 2018) that is in their possession.

13.5 The Customer agrees to indemnify and keep indemnified the Council against all claims and proceedings and all liability, loss, costs and expenses incurred in connection therewith by the Council as a result of any claim made or brought by any individual or other legal person in respect of any loss, damage or distress caused to that individual or other legal person as a result of the Customer's unauthorised processing, unlawful processing, destruction of and/or damage to any Personal Data processed by the Customer, its employees or agents in the Customer's performance of this Agreement or as otherwise agreed between the Parties.

13.6 Subject to clause 13.1, the Customer and the Council agree to keep strictly confidential all information that is agreed to be and clearly marked as commercially sensitive.

14. Entire Agreement

14.1 This Agreement constitutes the entire Agreement as to the subject matter thereof between the Parties and supersedes all previous Agreements and understandings (if any) between them with respect thereto.

15. Amendment and Variation

15.1 The Council can amend or vary this Agreement acting reasonably at any time by giving 28 days’ written notice of any amendments. Any amendments or variations will be at the Council’s sole discretion acting reasonably and non-negotiable.  The Customer will be deemed to have accepted any amendments or variations on receipt of the written notice and via the continued acceptance of the Services.

16. Third Party Rights

16.1 No one other than a party to this agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.

17. Waiver

17.1 No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

18. Severability

18.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.

19. Notices

19.1 Any notice or other communication given to a party under or in connection with this Agreement shall be in writing:

19.1.1 delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or

19.1.2 sent by email to its main email address.

19.2  Any notice or communication shall be deemed to have been received:

19.2.1 sent by email to its main email address.

19.2.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second working day after posting or at the time recorded by the delivery service.

19.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

20. Governing Law

This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

21. Jurisdiction

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).