1. Interpretation

The following definitions and rules of interpretation apply in these Conditions.

Definitions:

Agecko – Agecko UK Limited, registered in England and Wales with company number 07785442 and, where reasonably applicable, its officers, employees, subcontractors, agents and Customers.

Agecko’s Materials – has the meaning set out in clause 7.4.10.

Business Day – a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

Charges – the charges payable by Agecko for the supply of the Services in accordance with clause 12.

Commencement Date – the date specified in the Order, and if no date is specified, the date at which the Contract comes into existence in accordance with clause 2.2.

Conditions – these terms and conditions as amended from time to time in accordance with clause 23.6.

Contract – the contract between Agecko and the Supplier for the supply of Services and/or the provision of Goods and Equipment in accordance with these Conditions and the Order.

Control – shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.

Customer – a customer of Agecko in respect of the Goods, Equipment and/or Services.

Customer T&Cs – Agecko’s terms and conditions that apply to any Customer of Agecko.

Deliverables – all documents, products and materials developed by the Supplier or its agents, contractors and employees as part of or in relation to the Services in any form or media, including drawings, maps, plans, diagrams, designs, pictures, computer programs, data, specifications and reports (including drafts).

Delivery Date – the date specified in the Order.

Delivery Location – the address for delivery of Goods and/or Equipment as set out in the Order.

Equipment – the equipment hired to Agecko by the Supplier as specified in the Services Agreement.

Equipment Specification – any specification for the Equipment, including any related plans and drawings, that is agreed in writing by Agecko and the Supplier.

Goods – the goods (or any part of them) set out in the Order.

Goods Specification – any specification for the Goods, including any related plans and drawings, that is agreed in writing by Agecko and the Supplier.

Intellectual Property Rights – patents, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Order – The document or series of documents containing the description or specification for the Services, Goods and Equipment agreed in writing by Agecko and the Supplier, or, in the case of an email enquiry, as emailed by Agecko to the Supplier.

Services – the services, including any Deliverables, to be provided by the Supplier under the Contract, as set out in the Order.

Supplier – the person, company or entity from whom Agecko purchases the Services.

Waste – the waste, particulars of which are set out in the Order and/or in any WTN.

WTN – meaning ‘Waste Transfer Note’, the current controlled waste transfer note completed by the parties pursuant to the provisions of the Environment Protection Act 1990, which relates to the Waste covered by the Contract.

1.1 Interpretation

1.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.3 A reference to a party includes its personal representatives, successors and permitted assigns.

1.4 A reference to a statute or statutory provision includes a reference to it as amended or re-enacted, and to any subordinate legislation made under that statute or statutory provision.

1.5 Any words following including, include, in particular, for example and the like shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

1.6 A reference to writing or written includes email but excludes fax SMS or MMS text messaging or any other forms of electronic communication.

1.7 Unless otherwise stipulated, a reference to a “clause” is a reference to a clause in these Terms and Conditions.

2. Basis of Contract

2.1 The Order constitutes an offer by Agecko to purchase the Goods and the Services and to hire the Equipment in accordance with these Conditions.

2.2 The Order shall only be deemed to be accepted on the earlier of:

2.2.1 the Supplier issuing written acceptance of the Order; or

2.2.2 any act by the Supplier consistent with fulfilling the Order,

at which point and on which date, subject to clause 3.1, the Contract shall come into existence.

2.3 These Conditions apply to the Contract to the exclusion of any other terms that the Supplier seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.

2.4 All of these Conditions shall apply to the supply of Goods, Services and Equipment except where the application to one or the other is specified.

2.5 The Supplier waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Supplier that is inconsistent with these Conditions.

2.6 If any definition, clause or subheading of these Conditions conflict with the Order, then the wording of the Order shall take precedence.

3. Site Audits

3.1 Formation of the Contract shall be conditional on completion of a satisfactory site audit of the Supplier’s premises (‘Site Audit’) where requested by Agecko.

3.2 Site Audits may be undertaken by an officer, employee or party authorised by Agecko.

3.3 The parties shall agree jointly a date for any requested Site Audit.

3.4 Agecko shall provide their determination, which shall be made with their sole discretion, within 10 working days of the completion of a Site Audit.

4. Supply of Goods and Equipment

4.1 The Supplier shall ensure that the Goods and Equipment shall:

4.1.1 correspond with their description, the Order and any applicable Goods Specification or Equipment Specification;

4.1.2 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and fit for any purpose held out by the Supplier or made known to the Supplier by Agecko, expressly or by implication, and in this respect Agecko relies on the Supplier’s skill and judgement;

4.1.3 where they are manufactured products, be free from defects in design, materials and workmanship and remain so for 12 months after delivery; and

4.1.4 comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods and Equipment.

4.2 The Supplier shall ensure that at all times it has and maintains all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract in respect of the Goods and Equipment.

4.3 Agecko may inspect and test the Goods and Equipment at any time before delivery. The Supplier shall remain fully responsible for the Goods and Equipment despite any such inspection or testing and any such inspection or testing shall not reduce or otherwise affect the Supplier’s obligations under the Contract.

4.4 If following such inspection or testing Agecko considers that the Goods or Equipment do not comply or are unlikely to comply with the Supplier’s undertakings at clause 1, Agecko shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance.

4.5 Agecko may conduct further inspections and tests after the Supplier has carried out its remedial actions.

5. Delivery of Goods and Equipment

5.1 The Supplier shall ensure that:

5.1.1 the Goods and Equipment are properly packed and secured in such manner as to enable them to reach their destination in good condition;

5.1.2 each delivery of the Goods or Equipment is accompanied by a delivery note which shows the date of the Order, the Order number (if any), the type and quantity of the Goods and Equipment, special storage instructions (if any) and, if the Goods and Equipment are being delivered by instalments, the outstanding balance of Goods and Equipment remaining to be delivered; and

5.1.3 if the Supplier requires Agecko to return any packaging material to the Supplier, that fact is clearly stated on the delivery note. Any such packaging material shall only be returned to the Supplier at the cost of the Supplier.

5.2 The Supplier shall deliver the Goods and Equipment:

5.1.1 on the Delivery Date;

5.1.2 at the Delivery Location; and

5.1.3 during Business Hours or as instructed by Agecko.

5.3 Delivery of the Goods or Equipment shall be completed on the completion of unloading of the Goods or Equipment at the Delivery Location.

5.4 If the Supplier:

5.4.1 delivers less than 95% of the quantity of Goods or Equipment ordered, Agecko may reject the Goods or Equipment; or

5.4.2 delivers more than 105% of the quantity of Goods or Equipment ordered, Agecko may at its sole discretion reject the Goods or Equipment or the excess Goods or Equipment,

and any rejected Goods or Equipment shall be returnable at the Supplier’s risk and expense. If the Supplier delivers more or less than the quantity of Goods or Equipment ordered, and Agecko accepts the delivery, the Supplier shall make a pro rata adjustment to the invoice for the Goods or Equipment.

5.5 The Supplier shall not deliver the Goods or Equipment in instalments without Agecko’s prior written consent. Where it is agreed that the Goods or Equipment are delivered by instalments, they may be invoiced and paid for separately. However, failure by the Supplier to deliver any one instalment on time or at all or any defect in an instalment shall entitle Agecko to the remedies set out in clause 8.

5.6 Title and risk in the Goods shall pass to Agecko on completion of delivery.

5.7 The Supplier shall be responsible for the health and safety of persons (including the employees, agents and subcontractors of the Supplier) whilst they are on or about the Delivery Location.

6. The Equipment – Title, Risk and Insurance and Procurement

6.1 Risk of loss, theft, damage or destruction of the Equipment shall pass to Agecko at the time when the Equipment first arrives at the Delivery Location (except where the loss or damage arises from the negligence or wilful default of the Supplier). The Equipment shall remain at the sole risk of Agecko for the entire term of the Contract.

6.2 Title in the Equipment shall not pass to Agecko.

6.3 Agecko shall keep the Equipment in the condition it was in on the Delivery Date, fair wear and tear excepted.

6.4 Agecko shall keep the Supplier fully informed of all material matters relating to the Equipment.

7. Supply of Services

7.1 The Supplier shall from the Commencement Date and for the duration of the Contract provide the Services to:

7.1.1 Agecko; or

7.1.2 the Customer directly where specified in the Order,

in accordance with the terms of the Contract.

7.2 The Supplier shall lease the Equipment to Agecko for use by Agecko or the Customer at such location as is set out in the Order for the term of the Contract. Agecko shall be entitled to sub-lease such Equipment where agreed between the parties in the Order.

7.3 The Supplier shall meet any performance dates for the Services specified in the Order or that Agecko notifies to the Supplier and time is of the essence in relation to any of those performance dates.

7.4 In providing the Services, the Supplier shall:

7.4.1 co-operate fully with Agecko in all matters relating to the Services, and comply with all instructions of Agecko;

7.4.2 perform the Services with the best care, skill and diligence in accordance with best practice in the Supplier’s industry, profession or trade;

7.4.3 use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Supplier’s obligations are fulfilled in accordance with the Contract;

7.4.4 ensure that the Services will conform with all descriptions, standards and specifications set out in the Order, and that the Equipment and Deliverables shall be fit for any purpose that Agecko expressly or impliedly makes known to the Supplier;

7.4.5 provide all equipment, tools and vehicles and such other items as are required to provide the Services;

7.4.6 use the best quality goods, materials, standards and techniques, and ensure that the Deliverables, and all goods and materials supplied and used in the Services or transferred to Agecko, will be free from defects in workmanship, installation and design;

7.4.7 obtain and at all times maintain all licences and consents which may be required for the provision of the Services;

7.4.8 comply with all applicable laws, regulations, regulatory policies, guidelines or industry codes which may apply from time to time to the provision of the Services, and with the Mandatory Policies;

7.4.9 observe all health and safety rules and regulations and any other security requirements that apply at any of Agecko’s premises;

7.4.10 hold all materials, equipment and tools, drawings, specifications and data supplied by Agecko to the Supplier (Agecko’s Materials) in safe custody at its own risk, maintain Agecko’s Materials in good condition until returned to Agecko, and not dispose or use Agecko’s Materials other than in accordance with Agecko’s written instructions or authorisation;

7.4.11 not do or omit to do anything which may cause Agecko to lose any licence, authority, consent or permission on which it relies for the purposes of conducting its business, and the Supplier acknowledges that Agecko may rely or act on the Services;

7.4.12 comply with any additional obligations as set out in the Order;

7.4.13 inform Agecko of any change to the method of disposal of any Waste as set out in the Order; and

7.4.14 inform Agecko within 24 hours of the failure to provide any Services which are agreed in the Order to be provided directly to a Customer.

7.5 Agecko shall be entitled, with the written consent of the Supplier (not to be unreasonably withheld or delayed), to amend the location for provision of the Services as originally set out in the Order.

8. Customers

The Supplier shall not directly contact any Customers identified by Agecko in writing as connected to the Contract for the term of the Contract or for 90 days following the termination of the Contract in relation to the direct provision of services, goods or equipment.

9. Agecko’s Apparatus

9.1 Where the Supplier shall require use of any apparatus or equipment provided by Agecko (Agecko Apparatus) in order to provide the Goods, Services or Equipment to Agecko or any Customer:

9.1.1 the Supplier shall keep the Agecko Apparatus in the condition it was provided in; and

9.1.2 the Supplier shall return the Agecko Apparatus at the end of the term of the Contract.

10. Agecko’s Remedies

10.1 If the Supplier fails to perform the Services or deliver the Goods or Equipment by the applicable dates, Agecko shall, without limiting or affecting other rights or remedies available to it, have one or more of the following rights:

10.1.1 to terminate the Contract with immediate effect by giving written notice to the Supplier;

10.1.2 to refuse to accept any subsequent performance of the Services or delivery of the Goods or Equipment which the Supplier attempts to make;

10.1.3 to recover from the Supplier any costs incurred by Agecko in obtaining substitute services, goods or equipment from a third party;

10.1.4 to require a refund from the Supplier of sums paid in advance for Services, Goods or Equipment that the Supplier has not provided; and

10.1.5 to claim damages for any additional costs, loss or expenses incurred by Agecko which are in any way attributable to the Supplier’s failure to meet such dates.

10.2 If the Supplier has delivered Goods or Equipment that do not comply with the undertakings set out in clause 1, then, without limiting or affecting other rights or remedies available to it, Agecko shall have one or more of the following rights and remedies, whether or not it has accepted the Goods or Equipment:

10.2.1 to terminate the Contract with immediate effect by giving written notice to the Supplier;

10.2.2 to reject the Goods or Equipment (in whole or in part) whether or not title has passed and to return them to the Supplier at the Supplier’s own risk and expense;

20.2.3 to require the Supplier to repair or replace the rejected Goods or Equipment, or to provide a full refund of the price of the rejected Goods or Equipment (if paid);

10.2.4 to refuse to accept any subsequent delivery of the Goods or Equipment which the Supplier attempts to make;

10.2.5 to recover from the Supplier any expenditure incurred by Agecko in obtaining substitute goods or equipment from a third party; and

10.2.6 to claim damages for any additional costs, loss or expenses incurred by Agecko arising from the Supplier’s failure to supply Goods or Equipment in accordance with clause 1.

10.3 If the Supplier has supplied Services that do not comply with the requirements of clause 4.4 then, without limiting or affecting other rights or remedies available to it, Agecko shall have one or more of the following rights:

10.3.1 to terminate the Contract with immediate effect by giving written notice to the Supplier;

10.3.2 to return the Deliverables to the Supplier at the Supplier’s own risk and expense;

10.3.3 to require the Supplier to provide repeat performance of the Services, or to provide a full refund of the price paid for the Services (if paid);

10.3.4 to refuse to accept any subsequent performance of the Services which the Supplier attempts to make;

10.3.5 to recover from the Supplier any expenditure incurred by Agecko in obtaining substitute services or deliverables from a third party; and

10.3.6 to claim damages for any additional costs, loss or expenses incurred by Agecko arising from the Supplier’s failure to comply with clause 4.4.

10.4 These Conditions shall extend to any substituted or remedial services provided by the Supplier.

10.5 Agecko’s rights and remedies under the Contract are in addition to, and not exclusive of, any rights and remedies implied by statute and common law.

11. Agecko’s Obligations

11.1 Agecko shall:

11.1.1 provide such necessary information for the provision of the Services as the Supplier may reasonably request; and

11.1.2 where the Supplier is providing the Services to a Customer directly, use reasonable endeavours to procure that at reasonable times the Supplier can access the Customer’s premises for the purpose of providing the Services.

12. Waste

12.1 The Waste deposited in the Equipment shall become the property of the Supplier from the time when the Supplier empties or replaces the Equipment.

12.2 Any Waste collected from Agecko or the Customer as per the Order shall belong to the Supplier from the time the Supplier takes physical possession of said Waste.

12.3 Agecko and the Supplier shall each sign a new Waste Transfer Note:

12.3.1 when there is a change in any of the details of the Order, or on any Waste Transfer Note; and/or

12.3.2 before the expiration of 12 months from the Commencement Date of any current Waste Transfer Note.

12.4 The Supplier warrants that they possess all the necessary requirements to deal with any Waste (Necessary Requirements) and shall undertake all actions required to retain possession of the Necessary Requirements and notify Agecko if they no longer possess the Necessary Requirement at any time during the term of the Contract. The Necessary Requirements include, but are not limited to, consents, permits, licences and permissions required under any Relevant Regulation.

12.5 Agecko may, at any time, request to see proof that the Supplier has the Necessary Requirements.

12.6 If the Supplier fails to provide satisfactory evidence of their possession of the Necessary Requirements under clause 5, then Agecko may choose to, at their full discretion, terminate the Contract in accordance with clause 20.4.1.

12.7 The Supplier shall indemnify Agecko in respect of the full costs, damages, and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by Agecko in relation to a failure by the Supplier to possess the Necessary Requirements.

13. Charges and Payment

13.1 The Charges for the Goods, Equipment and Services shall be set out in the Order and shall be the full and exclusive remuneration of the Supplier in respect of the performance of the Services and supply of the Goods and Equipment. Unless otherwise agreed in writing by Agecko, the Charges shall include every cost and expense of the Supplier directly or indirectly incurred in connection with the performance of the Services and supply of the Goods and Services.

13.2 The Supplier may increase the Charges, in respect of Services or Equipment only and once per calendar year only, during the term of the Contract by providing Agecko with one months’ written notice.

13.3 The amount, frequency and payment method of the Charges shall be shown in the Order. If the Order does not stipulate when an invoice shall be raised, then the Supplier may invoice Agecko for the Services, Goods and/or Equipment on or at any time after the completion of the Services and/or the delivery of the Goods or Equipment.

13.4 Each invoice shall include such supporting information required by Agecko to verify the accuracy of the invoice, including the relevant purchase order number and the tonnage of any Waste collected by the Supplier.

13.5 In consideration of the supply of the Services by the Supplier, Agecko shall pay the invoiced amounts within 45 days of the date of a correctly rendered invoice to a bank account nominated in writing by the Supplier.

13.6 All amounts payable by Agecko under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to Agecko, Agecko shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services, Goods or Equipment at the same time as payment is due for the supply of the Services, Goods or Equipment.

13.7 If either party fails to make a payment due to the other under the Contract by the due date, then the defaulting party shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 7 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

13.8 If Agecko is unable to collect fees owed to it by the Customer in respect of the onward provision of the Goods, Services or Equipment due to the insolvency of the Customer:

13.8.1 the Supplier shall suspend the raising of any invoice in respect of such Goods, Services or Equipment; and

13.8.2 no raised invoices in respect of such Goods, Services or Equipment shall become due, including for the purposes of clause 7,

until Agecko has received full settlement of such fees.

13.9 The Supplier shall maintain complete and accurate records of the time spent and materials used by the Supplier in providing the Services, and shall allow Agecko to inspect such records at all reasonable times on request.

13.10 Agecko may at any time, without notice to the Supplier, set off any liability of the Supplier to Agecko against any liability of Agecko to the Supplier, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under the Contract. Any exercise by Agecko of its rights under this clause shall not limit or affect any other rights or remedies available to it under the Contract or otherwise.

14. Rebate

14.1 If Agecko believes that they are owed a rebate for any of the Services, Goods and/or Equipment provided under the Contract, they must contact the Supplier in writing detailing this (an Advice Note).

14.2 The Advice Note must include:

14.2.1 how much Agecko has paid under the Contract;

14.2.2 what has specifically been paid for; and

14.2.3 how much rebate they are due.

14.3 Within 14 days of receipt of a Advice Note, the Supplier shall give written notice to Agecko that either:

14.3.1 it agrees with the Advice Note; or

14.3.2 it disputes the Advice Note setting out, in such reasonable details as it is able, the reasons for such a dispute (a Disputed Advice Note).

14.4 If the Supplier does not serve notice in accordance with clause 14.3, it shall be deemed to have accepted the Advice Note and the Advice Note shall become an Agreed Advice Note.

14.5 In the event that the Supplier serves a Disputed Advice Note then:

14.5.1 the parties shall cooperate in order to resolve the matters in dispute and agree an Agreed Advice Note; or

14.5.2 if they are unable to agree an Agreed Advice Note within 20 Business Days of a Disputed Advice Note, either party may give notice to the other in writing that it wishes to refer the matter to an independent expert, acting as an expert and not as an arbitrator, for determination (Rebate Expert).

14.6 The Rebate Expert and their terms of appointment shall be agreed between the parties but if such cannot be agreed within 10 Business Days of notice in accordance with clause 14.5.2 either party may refer the matter to the President for the time being of the Institute of Chartered Accountants of England and Wales for them to determine the identity of the Rebate Expert and their terms of appointment.

14.7 Both parties shall, at their own costs, provide all assistance to the Rebate Expert as the Rebate Expert may require in order to make such determination.

14.8 Both parties shall be entitled to make written representations to the Rebate Expert in relation to any matters in dispute.

14.9 The decision of the Rebate Expert shall, in the absence of manifest error, be binding on both parties and the Advice Note as determined or amended by the Rebate Expert shall be the Agreed Advice Note.

14.10 Agecko must serve an invoice in accordance with clause 23.9 (the Rebate Invoice) on the Supplier for the amount detailed in an Agreed Advice Note within 10 working days of the Agreed Advice Note.

14.11 Provided the Rebate Invoice has been served subject to clause 23.9, the Supplier shall pay the Rebate Invoice within 30 working days.

15. Credit Checks

15.1 Agecko may require a credit application from the Supplier, and, in processing the credit application, may make enquiries of credit reference agencies, or other sources, who may keep a record of Agecko’s enquiry. The Supplier consents to this and authorises Agecko to use information obtained for the purposes of risk assessment, fraud prevention and for occasional debt tracing.

16. Intellectual Property Rights

16.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any Agecko Materials) shall be owned by the Supplier.

16.2 The Supplier grants to Agecko or shall procure the direct grant to Agecko of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract for the purpose of receiving and using the Services, Goods and Equipment in its business.

16.3 Agecko grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy any materials provided by Agecko to the Supplier for the term of the Contract for the purpose of providing the Services to Agecko or the Customer.

16.4 All Agecko Materials are the exclusive property of Agecko.

17. Indemnity

17.1 The Supplier shall indemnify Agecko against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by Agecko arising out of or in connection with:

17.1.1 any claim brought against Agecko for actual or alleged infringement of a third party’s intellectual property rights arising out of, or in connection with, the receipt, use or supply of the Services (excluding Agecko Materials);

17.1.2 any claim made against Agecko by a third party for death, personal injury or damage to property arising out of, or in connection with, defects in the Goods, as delivered, or the Deliverables, to the extent that the defects in the Goods or Deliverables are attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors; and

17.1.3 any claim made against Agecko by a third party arising out of, or in connection with, the supply of the Goods, as delivered, or the Services or Equipment, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Supplier, its employees, agents or subcontractors.

17.2 This clause 17 shall survive termination of the Contract.

18. Compliance with Relevant Laws and Policies

In performing its obligations under the Contract, the Supplier shall comply with all applicable laws, statutes, regulations and codes from time to time in force.

19. Insurance, Licences and Certifications

19.1 During the term of the Contract and for a period of 3 years thereafter, the Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance, product liability insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Contract and shall, on Agecko’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each insurance.

19.2 During the term of the Contract, the Supplier shall maintain a Waste Carriers Licence and any relevant site permits and site waste exemptions required to legally fulfil their obligations under this Agreement. They shall provide copies of all such licences, permits and waste exemptions to Agecko on the Commencement Date and immediately on any further request by Agecko.

20. Duration and Termination

20.1 Subject to this clause 20, unless specified in the Order, the Contract shall continue until the provision of the Services or the hire of the Equipment has concluded and/or the Goods have been procured by Agecko (Initial Term).

20.2 Unless the Contract is agreed to be a non-recurring contract in the Services Agreement, the Contract shall automatically renew for subsequent period of the same length as the Initial Term, unless either party gives the other written notice of termination at least three (3) months prior to expiration of the current term, or such other notices as may be specified in the Services Agreement

20.3 Without limiting or affecting any other right or remedy available to it, Agecko may terminate the Contract:

20.3.1 with immediate effect by giving written notice to the Supplier if:

20.3.1.1 there is a change of control of the Supplier; or

20.3.1.2 the Supplier’s financial position deteriorates to such an extent that in Agecko’s opinion the Supplier’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or

20.3.1.3 a substantial event, including but not limited to the loss of a key customer relationship, occurs; or

20.3.1.4 the Supplier commits a breach of clause 4.8 or 18,

20.3.2 for convenience by giving the Supplier three months’ written notice.

20.4 Without limiting or affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

20.4.1 the other party commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of seven days after being notified in writing to do so;

20.4.2 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business; or

20.4.3 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.

21. Consequences of Termination

21.1 On termination of the Contract for any reason or on expiry, the Supplier shall immediately deliver to Agecko all Deliverables whether or not then complete, and return all Agecko Materials. If the Supplier fails to do so, then Agecko may enter the Supplier’s premises and take possession of them. Until they have been returned or delivered, the Supplier shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.

21.2 Termination or expiry of the Contract shall not affect any of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.

21.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.

22. Limitation of Agecko’s Liability

These clauses limit the liability of Agecko (including liability in negligence and other such torts).  The Supplier should read these provisions carefully, and check that it is covered by its own insurance where appropriate.

22.1 Agecko has obtained insurance cover in respect of its own legal liability for individual claims not exceeding £5 million per claim in respect of public liability claims and £2 million per claim in respect of professional indemnity claims. The limits and exclusions in this clause reflect the insurance cover Agecko has been able to arrange and the Supplier is responsible for making its own arrangements for the insurance of any excess loss.

22.2 References to liability in this clause 22 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

22.3 Nothing in the Contract limits any liability which cannot legally be limited, including liability for death or personal injury caused by negligence or fraud or fraudulent misrepresentation.

22.4 Subject to clause 3, Agecko’s total liability to the Supplier shall not exceed the total Charges paid in relation to any Goods, Services and/or Equipment to which such liability relates, in the 12 months prior to such liability arising.

22.5 Subject to clause 11.3, the following types of loss are wholly excluded:

22.5.1 loss of profits;

22.5.2 loss of sales or business;

22.5.3 loss of agreements or contracts;

22.5.4 loss of anticipated savings;

22.5.5 loss of use or corruption of software, data or information;

22.5.6 loss of or damage to goodwill; and

22.5.7 indirect or consequential loss.

22.6 This clause 22 shall survive termination of the Contract.

23. General

23.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control. If the period of delay or non-performance continues for 10 business days, the party not affected may terminate the Contract by giving 7 business days written notice to the affected party.

23.2 Assignment and other dealings.

23.2.1 Agecko may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.

23.2.2 The Supplier shall not assign, transfer, mortgage, charge, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of Agecko.

23.3 Subcontracting

23.3.1 The Supplier may not subcontract any or all of its rights or obligations under the Contract without the prior written consent of Agecko. If Agecko consents to any subcontracting by the Supplier, the Supplier shall remain responsible for all the acts and omissions of its subcontractors as if they were its own.

23.3.2 The Supplier shall indemnify Agecko in respect of the full costs, damages, and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by Agecko in relation to any subcontracting by the Supplier under 23.3.1.

23.4.1 Each party undertakes that it shall not at any time to disclose to any person any confidential information concerning the business, affairs, customers, clients, or suppliers of the other party, except as permitted by 4.2.

23.4.2 Each party may disclose the other party’s confidential information:

23.4.2.1 to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 4; and

23.4.2.2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

23.4.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.

23.5 Entire agreement.

23.5.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

23.5.2 Each party acknowledges that in entering into the Contract it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.

23.5.3 Nothing in this clause shall limit or exclude any liability for fraud.

23.6 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by the parties or their authorised representatives.

23.7 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.

23.8 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity or enforceability of the rest of the Contract. If any provision or part-provision of this Contract is deemed deleted under this clause 23.8 , the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provisions.

23.9 Notices.

23.9.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:

23.9.1.1 delivered by hand;

23.9.1.2 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

23.9.1.3 sent by email:

(a) in respect of notices to Agecko – to info@agecko.com;

(b) in respect of notices to the Supplier – to such email address as provided by the Supplier in the Contract.

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

23.9.2.1. if delivered by hand, at the time the notice is left at the proper address;

23.9.2.2 if sent by first-class next working day delivery service, at 9.00 am on the second Business Day after posting; or

23.9.2.3 if sent by email at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 9.2.3, business hours means 9.00am to 5.00pm Monday to Thursday and 9:00am to 4:30pm on a Friday on a day that is not a public holiday in the place of receipt.

23.9.3 This clause 9 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.

23.10 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.

23.11 Third party rights.

23.11.1 Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

23.11.2 The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.

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

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

23.14 Customer T&Cs. The Supplier acknowledges and agrees that where the Supplier supplies Services directly to a Customer under the Contract or where Agecko is to supply the Equipment or Goods on to a Customer, then the following may apply:

23.14.1 the Customer T&Cs; and

23.14.2 any terms and conditions or other conditions of the Customer.

23.15 The Supplier covenants with Agecko to adhere to any term contained in the documents noted in 14.1 and 23.14.2.

23.16 Where requested by the Supplier in writing, Agecko shall provide a copy of all relevant Customer T&Cs and terms and conditions in relation to the Services, Goods and Equipments.