1.1. "Equipment" means the containers, bags, bins, skips, devices or either goods described in the Service Contract as the equipment hired, leased or otherwise provided to the Customer by or on behalf of KeyGreen Ltd ("the Company' or “KeyGreen") 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 KeyGreen branded bags, retailer domestic 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. “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 the Company to record Information pertaining to the Services, and which is signed by the Customer and the 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 the Company.
1.10. “Contract Term” shall mean the Initial Term and any Subsequent Terms.
1.11. “Initial Term” shall mean the period commencing on the date performance of services under this Service Contract begins (the “Commencement Date”) and ends on the first anniversary of the Commencement Date.
1.12. “Subsequent Terms” shall mean each subsequent period of 12 months after the Initial Term and each a “Subsequent Term”.
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 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 Customer wishes to request changes to their Service, a change request must be sent by the Customer (with such email coming from the Customer’s email address) to email@example.com or the changes will not be implemented. Any request changes to their Service received by post (or otherwise than by email) shall not accepted by the Company.
2.4. If the Services are 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.
2.5. Except when (i) the Services contracted under this Service Contract consist solely of the use of Bags or Tags, (ii) the Service Contract does not contain a specified termination date, and (ii) otherwise indicated in writing by the Company and the Customer, the term of the Service Contract (Contract Term) shall commence on the Contract Commences Date and shall terminate at the end of the specified Contract Term indicated in the Service Contract. Where no Contract Term is specified, the Service Contract shall commence on the Commencement Date and shall continue in force for the Initial Term. Unless the Customer has indicated by email (with such email coming from the Customer’s email address) to the Company (to firstname.lastname@example.org) at least 30 days before the end of each Subsequent Term that the Customer wishes to terminate the Service Contract, the Term of the Service Contract shall automatically renew for further Subsequent Terms. The Company shall be entitled to query the authenticity of any emails purporting to be issued by the Customer and if the Company is not satisfied (acting reasonably) that an email purporting to originate from the Customer is genuine, the Company shall be entitled to disregard any such email.
2.6. 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.
2.7. The Customer may only terminate the Service Contract by email to email@example.com in accordance with Clause 2.5 above. Any notices of termination of the Service Contract received by post (or otherwise than by email) shall not be accepted by the Company. If the Service Contract is terminated, the Company reserves the right to take possession of the Equipment and the Customer agrees to permit the Company to recover the Equipment. In the event that the Customer purports to terminate the Service Contract prior to the expiry of its Term or ceases to utilise the Services during the Term, the Company shall be entitled to charge the Customer an amount equal to what would reasonably have been charged had the Services been performed for the remainder of such Term. Such right of action is in addition to all other rights of action which the Company may have against the Customer in respect of any such breach(es) by the Customer. The Company reserves the right to charge the Customer an additional surcharge of €250.00 for all reasonable costs relating to the return and cleaning of the Equipment plus administration costs.
2.8. 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 120 days of continuous non-collection of Material presented by the Customer, regardless of the reason for the non-collection. 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.
2.9. The Company reserves the right to modify or amend these Terms of Service at any time with or without notice to the Customer. Any such modifications or amendments may be viewable by the Customer on the KeyWaste website (www.keywaste.ie). Where this version of the Terms of Service is different front the version of the Terms of Service on the KeyWaste website, the version on the website is controlling.
2.10. In accordance with Paragraph 1.7 above, these Terms of Service may be supplemented by additional terms of service, where agreed by the Customer and the Company. These agreements must be made in writing.
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 the 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. The Customer shall be responsible for ensuring that all Bags (and all bags which are labelled with appropriate Tags) and all Equipment is placed and stored in a safe and appropriate location for collection by the Company and that all such Bags (and/or bags labelled with the appropriate Tags) and Equipment does not cause any hazard (whether a trip hazard or otherwise) to the others and the Customer shall indemnify the Company and keep the Company indemnified in respect of any claim by a third party for loss or damage resulting from any claims relating to the aforesaid.
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 Materials as contaminated and the Customer shall meet all costs associated with its transport and disposal of General 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 may (at its sole discretion) assist the Customer in determining whether presentation or disposal of the Material would be in breach of such laws.
3.5 The Customer must ensure that the Equipment complies with the following limits of weight in relation to loading of the equipment with Waste Material. KeyWaste reserves the right to apply an excess weight charge if your bag/bin exceeds the weights stated below. Clear or compostable bags must be used in Organic Waste Bins.
The Company shall not collect any Material which collection would result in breach of Health and Safety Regulations and other applicable laws if the Equipment exceeds the maximum weight limits as specified below:
3.5.1. Maximum allowed weight for Mixed Recycling Bin of 140l/240l capacity is 10kg
3.5.2. Maximum allowed weight for Mixed Recycling Bin of 360l capacity is 15kg
3.5.3. Maximum allowed weight for Mixed Recycling Bin of 660l capacity is 25kg
3.5.4. Maximum allowed weight for Mixed Recycling Bin of 1100l capacity is 40kg
3.5.5. Maximum allowed weight for General Waste Bin 140l/240l capacity is 30kg
3.5.6. Maximum allowed weight for General Waste Bin 360l capacity is 35kg
3.5.7. Maximum allowed weight for General Waste Bin 660l capacity is 50kg
3.5.8. Maximum allowed weight for General Waste Bin 1100l capacity is 100kg
4. PRICING AND PAYMENT
At the commencement of the Service Contract, the Customer will be signed up for exact or scheduled billing. This will be determined by KeyGreen prior to signing the Service Contract. Scheduled billing means that the Customer must pay a set amount regardless of whether the bin needs to be lifted. Exact billing means that the Customer is only charged for the exact number of units lifted. KeyGreen reserves the right to assess the Customer’s needs and determine which method is more economically viable.
4.1. 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 relation 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 Government Levies 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 of €0.25 per Kg above the maximum weight may be charged 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 the Customer for all scheduled Services and Equipment purchases and rental. Separate additional invoices may be provided from time to time for any services performed by the Company 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. The 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 7 (seven) days for either Direct Debit or Account Customers shall entitle the Company to suspend Services. The Company shall contact the Customer by phone or email prior to the suspension of Services. The Company has a right, without prejudice to any other remedy or right to receive payment, including the right to charge the Customer the additional sum of interest at the rate of 2% per annum above the prime lending rate of the Bank of Ireland. If an account is not paid within credit terms, KeyGreen reserves the right to put the account on hold.
4.10. The parties agree that the prices indicated in the Service Contract for Recyclable Materials are indicative only and that the price 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.
4.11 In the event of loss and theft of Equipment, or if Equipment is damaged by fire or becomes unusable due to overloading by the Customer, while the Equipment is in possession of the Customer, the Customer shall incur the cost of replacement of the relevant Equipment provided by the Company.
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, lock-outs, 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 and 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 When it is necessary or at request of the Customer, to position Equipment on a public road/footpath when an appropriate Permit is required or to leave Bags (and all bags which are labelled with appropriate Tags) on a public road/footpath, it is the sole responsibility of the Customer to obtain such Permit from the relevant Local Authority and to ensure that such Equipment and/or Bags (and all bags which are labelled with appropriate Tags) are positioned in a safe location on such public road/footpath and the Company shall not be liable and responsible for omission or lack of such permit and shall be indemnified against any claims which may arise as result of such omission by the Customer and from any claims which may arise (whether directly or indirectly) as a result of any such Equipment being positioned on a public road/footpath.
5.5. 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 of the Company's agents or employees.
5.6. 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.
5.7. 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 and Equipment for their intended purposes only and shall under no circumstances give, transfer, sell, hire or assign Bags or Tags or Equipment 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 or Equipment sold or rented 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 or Equipment 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 on loan 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 known by the Company in writing to the Customer, the Customer shall not be entitled to rely upon any representation or warranty concerning any Equipment supplied by the Company.
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 and keep the Company indemnified 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 (but not limited to) the Waste Management Act 1996, its subsequent amendments and associated Statutory Instruments (the “Act”), 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 prescribed items in the Equipment.
6.6. The 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 on the Site the Customer shall be wholly responsible for the safety of any employees of the Customer or the Company or its sub-contractors 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 subcontractors. 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 subcontractors
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 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.
7.1. 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/her/its employees, assignees or agents and any claims relating to the storage or placement of the Equipment or any of any Bags or any bags labelled with the appropriate Tags.
7.2. The aggregate liability of the Company and its sub-contractors to the Customer (whether in respect of claims in contractor negligence or breach of statutory duty or nuisance or howsoever caused) shall be limited to and in no circumstances shall exceed €2,900,000 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 and 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 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.
7.5. 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 €2,900,000 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. Ownership of and risk of the 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.
8.4. The Company shall be entitled to seek evidence of proof of the valid purchase of the Services by the Customer (including, but not limited to evidence of valid purchase of Bags and/or Tags). In the event that the Customer is not able to provide evidence of valid proof of purchase which is in a satisfactory form to the Company, the Company shall be entitled (i) to remove all items from such Customer (whether Equipment, Bags and/or Tags or otherwise) from such Customer and/or (ii) to notify An Garda Siochána of the aforesaid.
9. LAW, ASSIGNMENT, WAIVER 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. The Customer shall not be entitled to assign the Service Contract or any part of it without the prior written consent of the Company. The Company shall be entitled to assign the Service Contract or any part of it to any person, firm or company without the prior written consent of the Customer.
9.3. Failure or delay by the Company in enforcing or partially enforcing any provision of the Service Contract or these Terms of Service will not be construed as a waiver of any of its rights created therein or herein. Any waiver by the Company of any breach of, or any default under, any provision of the Service Contract or Terms of Service by the Customer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms.
9.4. The Customer warrants and represents that he/she/it has the power and authority to execute the Service Contract and the Customer’s signatory to the Service Contract (the “Signatory”) is duly authorised to bind the Customer to the terms of the Service Contract and the Company shall not be required to enquire into the authority of the Signatory to sign the Service Contract on behalf of the Customer.
9.5. If any provision of the Service Contract or these Terms of Service is held unenforceable, then each 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.