1.1. In this Agreement, the following phrases shall have the following meanings:
“Commencement Date” means the date, which is 7 working Days after the date on which the Customer signs the Agreement or, if later, the date on which this Agreement commences as set out overleaf;
“Confidential Material” means any items deemed from time to time by Data Solutions 2016 Ltd and the Customer to be confidential and/or sensitive in nature, including without limitation: paper, discs videos, uniforms and IT and electronic equipment;
“Customer” means the person, partnership, unincorporated association, company or other organisation named overleaf;
“Initial Period: means the relevant Minimum Hire/Service or Collection Period for each Unit as set out overleaf;
“Payments’ means the sums payable by the Customer according to the type of agreement selected, as set out overleaf or as varied under Clause 4.2 below;
“Data Solutions 2016 Ltd’ means Data Solutions 2016 Ltd t/a Restore Datashred;
“Supplementary Charges’ means the charges for any shredding services provided by Data Solutions 2016 Ltd which are not included within the scope of the Agreement Type selected by the Customer as set out in Clause 2 below;
“Units’ means the storage containers, sacks or materials or other equipment (or any substitute for such items) to which this Agreement applies as set out overleaf.
“Working Days’ means Monday to Friday in each week excluding public holidays in England and Wales.
1.2. In this Agreement, any reference to any legislation includes such legislation as amended, extended, consolidated or replaced from time to time.
1. BASIS OF AGREEMENT
2.1. In consideration of the Customer making the Payments, Data Solutions 2016 Ltd will perform its obligations with reasonable care and skill and hire the Units to the Customer and/or service/collect the Units for the Customer (as applicable according to the Agreement Type selected by the Customer overleaf) in accordance with the terms set out in this Agreement, to the exclusion of all other terms and conditions (including any which the Customer purports to apply under any purchase order, confirmation of order, specification on or other document).
2.2. No terms or conditions endorsed on, delivered with or contained in the Customer’s purchase order, confirmation of order, specification on or other document shall form part of the contract between the Customer and Data Solutions 2016 Ltd simply as a result of such document being referred to by the parties to this Agreement.
2.3. These conditions apply to the Units, services and collections supplied to the Customer under this Agreement and any variation to these conditions and any representations by Data Solutions 2016 Ltd shall have no effect unless expressly agreed in writing and signed by a duly authorised representative of Data Solutions 2016 Ltd. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Data Solutions 2016 Ltd which is not set out in this Agreement. Nothing in this condition shall exclude or limit Data Solutions 2016 Ltd’s liability for fraudulent misrepresentation
2.4. Each order or acceptance of a quotation for the supply of Units, services and collections by the Customer from Data Solutions 2016 Ltd shall be deemed to be an offer by the Customer to hire the Units and use the services and collections subject to these conditions.
2.5. No order placed by the Customer shall be deemed to be accepted by Data Solutions 2016 Ltd until a written acknowledgement or order is issued by Data Solutions 2016 Ltd or (if earlier) Data Solutions 2016 Ltd delivers any Units or provides any services or collections to the Customer.
2.6. Data Solutions 2016 Ltd's obligations to the Customer under each Agreement Type and summarised in the table below:
Summary Description of Restore Datashred's Obligations
S - Service Agreement
The Customer takes the Units on hire from Data Solutions 2016 Ltd. Data Solutions 2016 Ltd will carry out routine periodic servicing/collections as per the frequency specified on page one of this Agreement.
|R - Rental Agreement
The Customer takes the Units on hire from Data Solutions 2016 Ltd.
|M -Maintenance Agreement
Data Solutions 2016 Ltd will carry out routine periodic collections from Units owned by the Customer, or of sacks either supplied by the Customer or by Data Solutions 2016 Ltd, as per the Agreement frequency specified on page one of this Agreement.
C - Call Out Agreement
Data Solutions 2016 Ltd will carry out collections on an on-demand “Call Out” basis from Units owned by the Customer, or of sacks either supplied by the Customer or by Data Solutions 2016 Ltd.
2.7. Data Solutions 2016 Ltd will provide to the Customer, if required, a certificate of destruction for each consignment of Confidential Material removed from the Customer’s site under this Agreement. Data Solutions 2016 Ltd may, with the Customer’s prior agreement, employ a subcontractor for the purpose of fulfilling any contract entered into by Data Solutions 2016 Ltd
3. COMMENCEMENT AND DURATION OF AGREEMENT
3.1. This Agreement shall commence on the Commencement Date and, subject to the provisions for termination set out in it, (which includes the ability to terminate the hire/service/collection of one of more Units), shall run for the Initial Period and then for consecutive periods each equivalent in time to the Initial Period (an “Extension Period”).
4.1. The Payments shall be payable by the Customer 30 days after the date of Data Solutions 2016 Ltd invoice (which shall be issued at the times and in the manner specified overleaf) without deduction, counter claim or set-off. The time of payment of each and every Payment shall be of the essence of this Agreement and a failure to pay on time shall be deemed to be a fundamental breach of this Agreement.
4.2. Data Solutions 2016 Ltd shall be at liberty to vary the Payments as follows:
4.2.1. at any time where performance of its obligations is made more difficult or costly as a result of new legislation or regulations or changes to existing legislation or
regulations, including those which result in increases in National Insurance Contributions;
4.2.2. to take account of an increase in Data Solutions 2016 Ltd’s operating costs, including (without limitation) costs arising from increases in fuel prices;
4.2.3. upon each anniversary of the Commencement Date during the Initial Period, by the average increase in inflation during the previous 12 month period as mentioned by
an appropriate index (such index to be determined by Data Solutions 2016 Ltd); and
4.2.4. at the beginning of the first Extension Period and upon each anniversary of the start of the first Extension Period (including upon all a anniversaries during any
subsequent Extension Periods) by a percentage increase applied at the discretion of Data Solutions 2016 Ltd.
5. SUPPLEMENTARY AND OTHER CHARGES
5.1 Supplementary Charges shall be payable by the Customer if Data Solutions 2016 Ltd carries out any non-routine repairs referred to in Clause 7.2 below and where
performance of its obligations is made more difficult or costly by a breach of the Customer’s obligations under this Agreement.
5.2 There will be an annual duty of care charge where Data Solutions 2016 Ltd issues a Controlled Waste Transfer Note. This charge is payable in advance at the end of
5.3 Data Solutions 2016 Ltd will maintain records of all waste transfers for 2 years. A detailed report including dates of transfers and disposal sites used, will be supplied on
a quarterly basis, if required by the Customer. There will be a charge for this service.
5.4 There will be a charge where Data Solutions 2016 Ltd carries out any other service relating to the collection and/or disposal of waste other than as specified on the
front page of this Agreement. Any congestion charge incurred by Data Solutions 2016 Ltd in the delivery, installation, service or collection of the Units, will be passed
on to the Customer.
5.5 All Supplementary Charges and other charges referred to in this Clause are payable at the rates current at the time that the relevant services are provided or costs
incurred and are to be paid within 30 days of the date of Data Solutions 2016 Ltd’s invoice.
5.6 Data Solutions 2016 Ltd reserves the right to introduce a charge to cover its costs of printing invoices and statements for the Customer.
6. LATE PAYMENT
6.1 If the Customer fails to pay any of the Payments or the Supplementary Charges on the date then, without prejudice to its other rights and remedies, Data Solutions
2016 Ltd may:
6.1.1. recover from the Customer £50 (non vatable) by way of compensation for the costs suffered by Data Solutions 2016 Ltd arising from each overdue sum; and
6.1.2. (without being in breach to the Customer) suspend the performance of its obligations under this Agreement until such time as the overdue sum is paid in full.
6.2 If the circumstances set out in Clause 6.1 apply and Payments are not being made by direct debit, the Customer will at Data Solutions 2016 Ltd’s request make all
future payments by direct debit.
7. NON ROUTINE REPAIR AND MAINTENANCE
7.1 Upon any fault occurring to the Units or if the Units become a health and safety hazard:
>p>7.1.1. the Customer shall notify Data Solutions 2016 Ltd as soon as possible and take such steps as are reasonably necessary to mitigate the effect of such fault or hazard;
7.1.2. subject to Clauses 7.2 and 7.3 below, and applicable to Agreement Types “S” and “R”, Data Solutions 2016 Ltd will, as soon as reasonably practicable, take all proper
steps to correct the fault at its own cost by repairing or, replacing all or part of the Units.
7.2 None of the Agreement Types include the repair of any faults resulting from misuse, vandalism or any other accidental, negligent or wilful damage, for which
Supplementary Charges will be payable.
7.3 Data Solutions 2016 Ltd may remove all or part of the Units from the Customer’s premises for the purpose of inspection, testing and repair. Data Solutions 2016 Ltd is
not obliged to provide any routine maintenance or any non-routine fault repair services at premises other than the Customer’s business premises in the Agreement.
7.4 With Agreement Types “S” and “R” Data Solutions 2016 Ltd’s entitled to replace the Units from time to time with substitute goods of a substantially similar standard and
specification to the Units.
8. COVENANTS OF THE CUSTOMER
8.1. The Customer agrees and covenants with Data Solutions 2016 Ltd as follows:
8.1.1. to allow Data Solutions 2016 Ltd and its agents full, convenient and safe access to the site where the Units are maintained or from which collections are carried out
during such hours as may be necessary to perform its obligations under this Agreement;
8.1.2. not to interfere with the Units (including attempting to repair, adjust or modify the Units) or place the Units on a public highway and with Agreement Types “S” and “R”
not to remove any registration or other identifying marks from the Units;
8.1.3. with Agreements Types “S” and “R” not to sell or offer sale, lend, assign, pledge, under let or otherwise deal with or part with possession of the Units and not to
remove them from its premises without Data Solutions 2016 Ltd’s prior written consent;
8.1.4. to care for and operate the Units in accordance with all relevant instructions and, with Agreement Types “R” and “C” to maintain and service the Units in accordance
with such instructions; to promptly carry out such action to the Units as may be advised by Data Solutions 2016 Ltd from time to time;
8.1.5. to take all reasonable steps to eliminate any cause of a fault as listed in Clause 7.2 above so far as it shall be within its power to do so;
8.1.6. with Agreement Types “S” and “R” to insure the Units throughout the Initial Period and any and all Extension Periods to their full replacement value with an insurer of
repute against loss or damage by accident, fire and theft and other reasonable risks and hold on trust for Data Solutions 2016 Ltd all insurance monies paid out under
such policy; (in the event of the Customer defaulting under this Clause, Data Solutions 2016 Ltd shall be at liberty to effect such insurance as it thinks fit at the
8.1.7. to notify Data Solutions 2016 Ltd immediately of any loss of, or damage to, the Units;
8.1.8. to ensure that the waste materials to be collected and disposed of shall be the type, character and quantities as specified on the front page of this Agreement and the
Customer shall ensure that no material change in the nature of the waste materials shall take place during the contract period. If waste other than the material
covered in this Agreement is received, Data Solutions 2016 Ltd will contact the Customer to agree the method of disposal, and Data Solutions 2016 Ltd reserves the
right to charge the Customer additional charges for such service at the rate current at the time that the service is provided. Such additional charges are to be paid
within 30 days of the date of Data Solutions 2016 Ltd’s invoice;
8.1.9. to ensure that the materials to be collected and shredded do not contain any materials that could damage the shredding equipment used by Data Solutions 2016 Ltd.
Data Solutions 2016 Ltd reserves the right to charge the Customer additional charges to cover any breakdown or repair as a result of the Customer’s actions; and to
ensure that it has the consent of all relevant data subjects to the destruction of the data comprised in the Confidential Material.
9. COVENANTS OF DATA SOLUTIONS 2016 LTD
9.1. All depots, processes, on-site and off-site vehicles are inspected to BS EN 15713 standards.
9.2. All Data Solutions 2016 Ltd staff are security vetted to BS7858 standards.
10. ACKNOWLEDGEMENTS AND WARRANTIES BY THE CUSTOMER
10.1. Where the Units supplied under this Agreement have been manufactured or customised to the Customer’s own specifications or requirements, the Customer
10.1.1. the Units are required for the purposes of a business carried on by the Customer, that they were selected by the Customer and acquired at its request by Data
Solutions 2016 Ltd from the supplier for the purposes of this Agreement; and
10.1.2. the supplier is not the agent of Data Solutions 2016 Ltd unless this is required by law.
10.2. The Customer warrants to Data Solutions 2016 Ltd that the waste Data Solutions 2016 Ltd collects under this agreement does not contain any hazardous waste or
hazardous concentration of any noxious, poisonous or polluting substances, and that any significant change in the waste will be declared to Data Solutions 2016 Ltd in
advance of collection.
TERMINATION BY DATA SOLUTIONS 2016 LTD
11.1. If the Customer breaches any term of this Agreement or suffers distress or execution, becomes insolvent or bankrupt, or enters into an arrangement or composition
with its creditors or if a liquidator, receiver or administrator is appointed over the whole or any part of its business or assets the, without prejudice to its other rights and
remedies, Data Solutions 2016 Ltd may immediately terminate this Agreement.
11.2 Data Solutions 2016 Ltd may also terminate this Agreement at any time by giving the Customer 10 days prior written notice.
12. TERMINATION BY THE CUSTOMER
12.1. The Customer may only terminate the hire and/or service/collections of one or more of the Units or this Agreement in its entirety by giving at least 90 days prior notice
in writing, such notice to expire at the end of the Initial Period or an Extension Period.
13. CONSEQUENCES OF TERMINATION
13.1. Upon termination of this Agreement howsoever arising:
13.1.1. the Customer shall, without prejudice to Data Solutions 2016 Ltd other rights and remedies, pay to Data Solutions 2016 Ltd on demand all arrears of Payments and
any other sums payable under this Agreement up to the date of termination;
13.1.2. any servicing, collections, maintenance or repair of the Units by Data Solutions 2016 Ltd shall cease; and
13.1.3. where the Customer has selected Agreement Type “S “ or “R”:
i. the hiring of the Units shall cease and the Customer shall no longer be in possession of the Units with Data Solutions 2016 Ltd’s consent; and
ii. the Customer shall immediately make the Units available for collection by Data Solutions 2016 Ltd in good working order and condition (fair wear and tear excepted),
in default of which Data Solutions 2016 Ltd shall be entitled to charge Payments from the date of termination on to the date on which the Units are collected.
iii. the Customer shall, without prejudice to Data Solutions 2016 Ltd other rights and remedies, pay to Data Solutions 2016 Ltd on demand the cost of repairs to the
Units to put them in good working order and condition (fair wear and tear excepted).
13.2.1. the customer seeks to terminate the hire and/or service of one or more of the Units or this Agreement in it entirety, otherwise than in accordance with Clause 12.1
above; or any of the circumstances in Clause 11.1 occurs,
13.2.2. and as a result Data Solutions 2016 Ltd elects to terminate this Agreement, the Customer shall pay to Data Solutions 2016 Ltd, in addition to the sums payable
above, the following sums by way of liquidated damages: for Agreement Types “S” and “R” where the units have been manufactured or customised to the Customer’s
own specifications or requirements, a sum equal to 100% of the aggregate Payments which, but for termination, would have been payable from the date of
termination up until expiry of the Initial Period or the then current Extension Period; or
13.3. in all other cases, a sum equal to 75% of the aggregate Payments which, but for termination, would have been payable from the date of termination up until expiry of
the Initial Period of the then current Extension Period. Where the Payments fluctuate from one payment to the next, the sum due upon termination under Clause 13.2
above shall be calculated by averaging the Payments due from the Customer from the Commencement Date up to the date of termination and multiplying such average
by the number of payments which, but for termination, would have been payable up until the end of the Initial Period or the then current Extension Period.
14.1. Subject to Clause 14.2 below, all conditions, warranties and representations, whether express or implied and whether arising by reason of statute, common law or
otherwise relating to the quality of the Units, their suitability or fitness for purpose and their conformity with description or sample, are expressly excluded from this
Agreement to the fullest extent permitted by law. In particular, any published pictures or descriptions of the units are for indication purposes only and actual products
supplied may differ from such pictures or descriptions.
14.2. Data Solutions 2016 Ltd does not exclude or limit liability for death or personal injury caused by its negligence or fraudulent misrepresentation but, subject to this and
the requirements of the law, its liability to the Customer in contract, tort or otherwise for any damages, loss, liability, costs or expenses suffered or incurred by the
Customer or any other person arising directly or indirectly or in any manner howsoever out of the use or possession of the Units by the Customer or such other person,
the provision of any services under this Agreement or otherwise shall be limited as follows:
14.2.1. Data Solutions 2016 Ltd liability for loss or damage to buildings and fixtures and fittings caused by an act or omission of Data Solutions 2016 Ltd, its agents,
employees or subcontractors shall not exceed £1,000,000 per incident;
14.2.2. Data Solutions 2016 Ltd liability for all other loss or damage suffered by the Customer in any 12 month period and caused by an act or omission of Data Solutions
2016 Ltd, its agents, employees or subcontractors shall not exceed the annual equivalent of the total Payments set out on page 1 of this Agreement (excluding any
increases to such payments) and assuming for Agreement Types “S and “R” that the additional quantity price set out on page 1 does not apply for the purpose of this
14.2.3. the Customer agrees that Data Solutions 2016 Ltd shall not be liable in way for any loss of profits, nor shall it be liable for any indirect, consequential or special loss or
damage howsoever caused and arising from the Customer’s use or possession of the units or benefit from the services provided by Data Solutions 2016 Ltd or
14.2.4. Data Solutions 2016 Ltd shall not be liable for any delay or failure to comply with its obligations where the failure is caused by fire, flood, inclement weather, strikes,
industrial action or any other reason or circumstances (not necessarily similar to those listed) beyond its reasonable control.
14.3. Unless the law provides otherwise (and except as a result of a breach by Data Solutions 2016 Ltd of its obligations under this Agreement or Data Solutions 2016 Ltd
negligence or where Data Solutions 2016 Ltd is otherwise liable at law for such damage, loss, liability or expenses) and without prejudice to Data Solutions 2016 Ltd’s
other rights and remedies, the Customer shall indemnify Data Solutions 2016 Ltd against all or any of the following:
14.3.1. with Agreement Types “S” and “R” any loss or damage to the Units, howsoever arising, including any loss or damage, which is not recoverable under the policy of
insurance, referred to in Clause 8.1.5 above (including where the Customer has failed to take out such a policy of insurance);
14.3.2. any and all damage, loss, liability or expenses which Data Solutions 2016 Ltd may suffer or incur as a result of a claim by a third party arising out of or in connection
with this agreement; and
14.3.3. all costs and expenses (including enquiry agents, debt collection agents and legal costs on a full indemnity basis) incurred or sustained by Data Solutions 2016 Ltd in
enforcing any of the terms of this Agreement.
14.4. The Customer shall indemnify Data Solutions 2016 Ltd against any and all damage loss, liability or expense which Data Solutions 2016 Ltd may suffer or incur as a
result of any action taken by the Environment Agency or similar regulatory body as a result of Data Solutions 2016 Ltd having entered into this Agreement.
14.5. The Customer shall indemnify Data Solutions 2016 Ltd against any and all damage, loss, liability or expense which Data Solutions 2016 Ltd may suffer or incur as a
result of any claim by a third party arising out of or in connection with the destruction of any Confidential Material.
15. SERVICE OF NOTICES
15.1. Any notice required or permitted to be given under this Agreement shall be deemed to have been validly given if served personally upon that party or if sent by first
class prepaid post or sent by e-mail to the address of that party as stated at the head of this Agreement, its last known address or its registered office.
15.2. Any notice or other information sent by first class prepaid post shall be deemed to have received by the other party within 48 hours after the date of posting. Any notice
or other information sent by e-mail shall be deemed to have been received by the other party at the time that it was transmitted.
16. ELECTRONIC SIGNATURES AND COMMUNICATION
16.1. Where this Agreement has been signed by the Customer electronically, the Customer confirms that the electronic signature which it has used to enter into this
Agreement is valid and binding on it.
16.2. Any notice or other information sent by first class prepaid post shall be deemed to have been received by the other party within 48 hours after the date of posting. The
Customer agrees that both the Customer and Data Solutions 2016 Ltd may communicate with each other by electronic means in connection with this Agreement.
17.1. The persons who sign this Agreement on behalf of the Customer warrant that they have the appropriate and necessary authority to do so and to bind the Customer to
the terms set out in it. Where two or more persons are stated overleaf to be the Customer, each of those persons shall be jointly and severally liable for performance of
the Customer’s obligations under this Agreement.
17.2. All amounts due under this Agreement are (unless otherwise specified) subject to the addition of VAT at the prevailing rate, which shall be additionally payable by the
Customer in full.
17.3. Data Solutions 2016 Ltd (but not the Customer) shall be free to sub-contract, assign or novate all or any or any of its rights or obligations under this Agreement (in
Whole or in part) to any other party without the consent of the Customer. This Agreement contains the entire agreement between the parties any may only be modified
in writing. If any part of it shall, for any reason, be found or held invalid or unenforceable, this shall not affect the remainder of its terms, which shall survive and be
construed as if the invalid or unenforceable part had not been contained in this Agreement.
17.4. A person who is not party to this Agreement has no right to enforce any term of this Agreement.
17.5. The failure of Data Solutions 2016 Ltd to insist upon the strict performance of any provision of this Agreement or to exercise any right or remedy consequent upon
breach of any such provision shall not constitute a waiver of any such breach or any subsequent breach of such provision or prejudice in any way any right of Data
Solutions 2016 Ltd under this Agreement.
17.6. The parties agree that it is not practical to obtain signatures for all services performed and so the Customer accepts that Data Solutions 2016 Ltd’s computerised
records of the services provided will be adequate proof of the fact that those services have been delivered.
17.7. This Agreement shall be governed by the laws of England and Wales and Welsh courts shall have non exclusive jurisdiction for any disputes arising out of it.