1.1 In these Terms and Conditions the following expressions shall have the following meanings unless inconsistent with the context:
“Business Day” a day (other than a Saturday, Sunday or a public holiday) when banks in London are open for business;
“PSM” PS Managed Solutions Ltd, a company incorporated and registered in England and Wales with company number 08239558;
“Containers” containers, including without limitation bins, bags and boxes, supplied by PSM to the Customer on loan as part of the Services;
“Contract” the contract between PSM and the Customer for the supply of Services in accordance with these Terms and Conditions and the information specified in the Order;
“Customer” the person(s), firm or company to whom PSM provides the Services under the Contract;
“Customer Service Agreement” PSM’s customer service agreement setting out specified information about the Services ordered by the Customer;
“Data Protection Legislation” (i) unless and until the General Data Protection Regulation (EU) 2016/679) (GDPR) is no longer applicable in the UK, the GDPR as it applies in the UK and any national implementing laws, regulations and secondary legislation, including, without limitation, the Data Protection Act 2018 (DPA), as amended or updated from time to time, in the UK; and then (ii) any successor legislation to the GDPR or the DPA in force in the UK from time to time;
“Force Majeure” an event beyond the reasonable control of PSM including but not limited to protest, act of god, epidemic, pandemic, terrorist attack, riot, civil commotion, threat of or preparation for war, war, compliance with any law or governmental order, rule, regulation or direction, accident, fire, flood or adverse weather conditions;
“Hazardous Materials” has the meaning set out in clause 3.4;
“Materials” the materials to be destroyed by PSM under the Contract as specified in the Order and unless otherwise agreed in writing between PSM and the Customer shall be limited to paper only;
“Personal Data” has the meaning given under the Data Protection Legislation;
“Personal Data Breach” means any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, any Personal Data received from the Customer in performing the Services;
“Order” the Customer’s order for the supply of Services, as set out in the Customer Service Agreement or as agreed in writing with PSM;
“Services” loan of the Containers to the Customer, collection of the Materials from the Service Point, the destruction of the Materials away from the Customer’s premises by PSM by any method which it shall at its discretion choose, unless onsite destructions have been specifically agreed by PSM in the Customer Service Agreement or subsequently in writing, in which case the destruction of the Materials shall take place at the Customer’s premises, and any other incidental or ancillary Services supplied by PSM to the Customer;
“Service Point” the location notified by the Customer to PSM where PSM will collect the Materials;
“Terms and Conditions” the standard terms and conditions of sale set out in this document (as amended from time to time) together with any special terms agreed in writing between the Customer and PSM.
1.2 The headings in these Terms and Conditions are for convenience only and shall not affect their construction or interpretation.
1.3 A reference to a statute or statutory provision is a reference to such statue or statutory provision as amended or re-enacted.
2 Formation and Duration
2.1 The Order constitutes an offer by the Customer to purchase the Services in accordance with these Terms and Conditions and the Customer must ensure that the terms of the Order are complete and accurate.
2.2 No Contract shall come into existence until the Order is either accepted by PSM’s written acceptance, or otherwise by PSM commencing with the provision of the Services.
2.3 Permitting the performance of the Services by PSM as specified in the Order shall be deemed conclusive evidence of the Customer’s acceptance of the Contract.
2.4 Any quotation given by PSM shall not constitute an offer, and is only valid for a period of 30 Business Days from the date of issue provided that PSM has not previously withdrawn it.
2.5 The Services supplied under the Contract shall be supplied for the period specified in the Customer Service Agreement or in the absence of being specified in the Customer Service Agreement (or if there is none), for a period of 12 months starting from the date of the first collection of the Materials from the Service Point by PSM (Initial Term) and shall automatically extend for the same period as specified in the Customer Service Agreement or in the absence of having been specified in the Customer Service Agreement (or if there is none), for 12 months, (Extended Term) at the end of the Initial Term and at the end of each Extended Term unless either party gives written notice to the other party, not later than 90 days’ before the end of the Initial Term or the relevant Extended Term, to terminate the Contract at the end of the Initial Term or the relevant Extended Term, as the case may be or the Contract is terminated by PSM or the Customer in accordance with clauses 8.2 or 10.
2.6 These Terms and Conditions apply to the Contract to the exclusion of any other terms and conditions that the Customer seeks to impose or incorporate, or which are implied by custom, practice or course of dealing.
3.1 PSM will perform the Services and may make any changes to the Services or provision of the Services which are required to conform with any applicable safety or other statutory or regulatory requirements and do not materially affect the performance of the Services.
3.2 Unless agreed otherwise in writing between the parties, risk of loss of the Materials and ownership of the Materials shall pass to PSM once the Materials have been loaded by PSM from the Service Point onto PSM operated vehicles.
3.3 The Containers are the property of PSM and the Customer shall only use the Containers for the Materials in accordance with any verbal or written instructions given from time to time by PSM for their use and shall not remove the Containers from the Service Point without PSM’s prior written consent. For the avoidance of doubt and save for when PSM is actually performing the Services, the Customer shall be responsible at all times for ensuring the safety of the Containers, including without limitation, that the Containers are not damaged or destroyed or stolen whilst they remain on the Customer’s premises.
3.4 Unless otherwise expressly agreed in writing between PSM and the Customer, the Customer shall exclude from the Materials any materials which could cause damage or injury to persons or property or are in any way whatsoever hazardous, including without limitation, any glass, metal, asbestos, batteries, matches, aerosol cans, explosives, carbon fibre, combustibles, liquid, acid, oil, flammable, corrosive or hazardous materials (Hazardous Materials). Where the Customer has included in the Materials any Hazardous Materials, PSM shall be entitled to refuse to handle or perform the Services on any Hazardous Materials and/or any Containers and/or any Materials containing or suspected by PSM to be containing any Hazardous Materials and, at the Customer’s cost, PSM may at its option:-
(a) return (or arrange for the return of) the Containers and/or the Materials and/or the Hazardous Materials to the Customer;(b) arrange for the destruction of the Containers and/or the Materials and/or the Hazardous Materials, if necessary by a third party with expertise in the destruction of such Hazardous Materials; or
(c) require the Customer to collect the Containers and/or the Materials and/or the Hazardous Materials.
3.5 Unless agreed otherwise in writing between the parties, it shall be the responsibility of the Customer to place the Materials in the Containers and PSM shall not be under any obligation to remove from the Service Point any materials which are left on or near the Containers.
3.6 The Customer shall indemnify and keep indemnified and hold harmless, PSM against all liabilities, costs, expenses, damages and losses (including, without limitation, any direct or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by PSM arising out of or in connection with any Containers and/or Materials collected by PSM from the Service Point containing any Hazardous Materials.
4 Confidentiality and Data Protection
4.1 The parties acknowledge that the Materials may contain Personal Data and that the Customer is the Data Controller and PSM is the Data Processor for the purposes of the Data Protection Legislation under the Contract.
4.2 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 4 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
4.3 PSM shall:
(a) process the Materials only in accordance with the Contract;
(b) ensure that it has in place appropriate technical and organisational measures to protect against the unauthorised or unlawful processing of any of the Materials and against accidental loss or destruction of, or damage to, the Materials, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the Materials to be protected;
(c) keep the Materials confidential and secure until their destruction;
(d) where onsite destructions have been specifically agreed by PSM in the Customer Service Agreement or subsequently in writing, destroy the Materials at the Customer’s premises at the same time as collecting the Materials and where onsite destruction has not been specifically agreed by PSM, use reasonable endeavours to destroy the Materials within one Business Day from arrival of the Materials at PSM’s destruction centre in accordance with the British Standard EN 15713:2009;
(e) not transfer the Materials before their destruction to any location outside of the UK;
(f) not pass the Materials to any third party unless required to do so by law, or PSM is doing so pursuant to clauses 3.4.(b) or 6.7(b);
(g) not take any copies of the Materials; and
(h) take reasonable steps to ensure the reliability of its personnel and have procedures in place for appropriate training for such personnel to ensure compliance with this Clause 4;
(i) assist the Customer to the extent reasonably required, at the Customer’s cost, in responding to any request from a Data Subject as defined under the Data Protection Legislation and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications and consultations with supervisory authorities or regulators;
(j) notify the Customer without undue delay on becoming aware of a Personal Data Breach;
(k) at the written direction of the Customer, delete or return the Materials to the Customer unless they have already been destroyed in accordance with the Services or PSM is required by law to otherwise disclose, retain, store or destroy the Materials; and
(l) maintain complete and accurate records and information to demonstrate its compliance with this clause 4.
4.4 The provisions in clause 4.3above shall also where relevant, apply to any information of a confidential or proprietary nature (including information imparted orally) relating to the Customer’s business, customers, suppliers revealed to or learnt by PSM under the Contract, save that this clause 4 shall not apply to information (other than Personal Data), in so far as such information:
(a) has ceased to be secret without default on the part of PSM;
(b) was already in PSM’s possession prior to disclosure by the Customer;
(c) has been received from a third party who did not acquire it in confidence; or
(d) was in the public domain otherwise than through breach of the Contract.
4.5 For the purposes of the Data Protection Legislation, the Customer consents to the appointment of a third party processor of Personal Data should PSM exercise its rights under clause 13.2. PSM shall procure that any such person or persons enter into a written agreement incorporating terms substantially the same or similar to those in this clause 4.
5.1 Unless otherwise agreed in writing between the parties, the price for the Services shall be the price set out in the Order and is exclusive of any value added tax or other applicable sales tax or duty which shall be added to the sum in question.
5.2 PSM reserves the right to charge the Customer (being a business Customer only) a transaction processing fee of up to 4% if the Customer at any time uses a credit card to pay for the Services.
5.3 The replacement or repair cost of any Containers which have been lost or destroyed or damaged by the Customer whilst in the possession of the Customer, will be paid for by the Customer in addition to the price for the Services.
5.4 If at any time PSM issues or is obliged to issue a Controlled Waste Transfer Notice then PSM reserves the right to charge the customer an annual Duty of Care charge at such rate as PSM may determine from time to time. If PSM exercises its right under this clause5.4then PSM shall issue an invoice to the customer, and such invoice shall be payable in accordance with clause 6.1.
5.5 PSM shall be entitled to increase the prices of the Services by giving notice to the Customer:-
(a) following any changes in the Services made at the request of the Customer and agreed by PSM, or to cover any extra expense as a result of the Customer’s instructions, or failure by the Customer at any time to give adequate or accurate information or instructions;
(b) in the event of any material fluctuations in the market for recycled materials (including without limitation paper); or
(c) if PSM considers an increase in price to be reasonably justified by any increase in the price of materials or the cost of labour or the cost of complying with any legal requirements or any other overheads, relating to the provision of the Services.
5.6 Without prejudice and in addition to its rights under clause 5.5, PSM may increase the prices of the Services annually, on or after the anniversary of the first collection, by no more than 10% per year, without giving notice to the Customer.
6.1 Unless otherwise specified in the Customer Services Agreement or subsequently agreed in writing by PSM; PSM may invoice the Customer on or at any time after performance of the Services commences and subject to clause 6.3, the Customer shall pay each invoice submitted by PSM in pounds sterling within 30 Business Days after the date of such invoice.
6.2 No payment shall be deemed to have been received until PSM has received the payment in cleared funds.
6.3 All invoices and other sums payable to PSM under the Contract shall become due immediately upon termination of the Contract. On termination PSM may raise an invoice (which shall be payable by the Customer immediately on receipt) in respect of any sums in respect of any Services or other sums payable under the Contract for which no invoice has been raised.
6.4 All payments to be made by the Customer under the Contract shall be made in full without any set-off, restriction or condition and without any deduction for or on account of any counterclaim.
6.5 All payments to be made by the Customer under the Contract shall be made in full without deduction of or withholding for or on account of any present or future taxes, levies, duties, charges, fees, deductions or withholdings of any nature unless the Customer is required by law to make any such deduction or withholding.
6.6 PSM may set-off any payment made by the Customer to PSM to such of the invoices for the Services as PSM thinks fit, despite any purported appropriation by the Customer. If any sum payable under the Contract is not paid when due then, without prejudice to PSM’s other rights under the Contract, that sum shall bear interest from the due date until payment is made in full, whether before and after any judgment, at 4% per annum over HSBC Bank plc base rate from time to time and PSM shall be entitled to suspend performance of the Services until the outstanding amount has been received by PSM from the Customer.
6.7 Unless otherwise agreed in writing between PSM and the Customer, if the Customer fails to pay any invoice within 30 Business Days of the date of the invoice in question or if the Customer becomes, or PSM considers that it might become, subject to any of the events listed in clause 10.1(b), PSM shall, without affecting any of its other rights or remedies, be entitled to refuse to handle any Materials and/or perform any of the Services and, at the Customer’s cost, may at its option:-
(a) return (or arrange for the return of) the Materials to the Customer;
(b) arrange for the destruction of the Materials, if necessary by a third party with expertise in the destruction of such Materials; or
(c) require the Customer to collect the Materials.
6.8 Each separate stage or collection may be invoiced separately by PSM and must be paid for in accordance with the provisions of these Terms and Conditions.
7.1 PSM shall use reasonable endeavours to perform the Services within the frequency set out in the Customer Service Agreement or as subsequently agreed in writing by PSM, and if no such frequency is specified then the estimated frequency for performing the Services shall be monthly, but the exact time and date of performance shall not be of the essence and any performance dates and times given by PSM shall be estimates only and may vary at any time without notice.
7.2 PSM shall not be liable to the Customer nor in breach of the Contract for any delay in the performance of the Services unless the Customer has given PSM 30 Business Days’ written notice following the due date for performance of the Services requiring the performance to be made and PSM has not performed the Services within that period.
7.3 If for any reason a collection is cancelled by the Customer at or after 12:00PM on the day one Business Day before the arranged collection date, the Customer shall be liable to pay all charges and fees quoted in connection with that collection. For the avoidance of doubt, if the Customer subsequently re-arranges the relevant collection then the Customer shall be liable to pay all fees and charges in connection with that re-arranged collection in addition to the fees and charges for the cancelled collection.
8 Force Majeure
8.1 PSM shall not be in breach of the Contract or otherwise have any liability for any delays or failures in performance of the Contract which result from Force Majeure.
8.2 The date for performance by PSM of its obligations shall be deemed suspended only for a period equal to the delay caused by the Force Majeure event. PSM shall promptly notify the Customer in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than three months, either party may give notice in writing to the other to terminate the Contract. The notice to terminate must specify the termination date, which must not be less than 10 Business Days after the date on which the notice is given, and once such notice has been validly given, the Contract will terminate on that termination date.
9.1 The following provisions and the provisions of clauses 7 and 8 set out the entire liability of PSM to the Customer in respect of:
(a) any breach of the Contract; and
(b) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
9.2 Except as set out in these Terms and Conditions, all warranties, conditions and other terms implied by statute or common law (save for the conditions implied by Section 2 of the Supply of Goods and Services Act 1982) are excluded from the Contract to the fullest extent permitted by law.
9.3 Nothing in these Terms and Conditions shall limit or exclude the liability of PSM for death or personal injury caused by PSM’s negligence, or the negligence of its employees, agents or subcontractors; fraud or fraudulent misrepresentation; or as otherwise not permitted by law.
9.4 Without prejudice to any other term of the Contract, PSM shall not be liable to the Customer for any damages, claims or costs the Customer incurs as follows:-
(a) as a result of a failure by the Customer to place the Materials in the Containers (including without limitation where a Customer deposits Materials on or near the Containers but not in the Containers);
(b) where the Customer deposits Materials at PSM’s premises without the prior written consent of PSM;
(c) where the Customer places Materials in error in the Containers;
(d) where, at the request of the Customer, PSM collects Materials or any other materials of any nature from the Service Point which either have not been placed in the Containers or have been placed in containers which have not been supplied by PSM; or
(e) where PSM is not given reasonable access for safely removing the Materials from the Service Point.
9.5 Subject to clauses 9.2, 9.3 and 9.4 above: –
(a) SS’ total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising under or in connection with the performance or contemplated performance of the Contract shall be limited to the price referred to at Clause 5.1 or in the absence of a specified price in the Contract, the sum paid to PSM in the 12 months preceding the date on which the last collection of the Materials was made from the Service Point; and
(b) PSM shall not be liable to the Customer, whether in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising under or in connection with the performance or contemplated performance of the Contract for any loss of profits, loss of sale or business, loss of agreements or contracts, loss of anticipated savings, loss of or damage to goodwill or any indirect or consequential loss.
10 Termination by PSM or the Customer
10.1 Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) subject to clauses 7.2 or 10.3, the other party is in material breach of any of the material terms of the Contract and fails to remedy such breach within 30 Business Days’ of that party being notified in writing of the breach;
(b) the other party suffers distress or execution, has had a receiver, administrative receiver, administrator or manager appointed over the whole or any part of its assets or undertaking (or any step or action has been taken for any such appointment); or has become insolvent within the meaning of section 123 of the Insolvency Act 1986; or has taken any step or action in connection with its being wound up, liquidation (whether voluntary or compulsory), or to compound with its creditors;, or has been otherwise unable to meet its debts as they fall due or has suffered any similar action or step in consequence of any debt including any event analogous to the events here listed in any jurisdiction; or
(c) the other party suspends or ceases or threatens to suspend or cease to carry on all or a substantial part of its business.
10.2 Without limiting its other rights or remedies, PSM shall have the right to suspend provision of the Services under the Contract if the Customer becomes subject to any of the events listed in clause 10.1(b) or PSM reasonably believes that the Customer is about to become subject to any of them, or the Customer fails to pay any amount due under the Contract on the due date for payment.
10.3 PSM may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
10.4 Upon termination, unless otherwise agreed in writing by PSM, the Customer shall return all of the Containers to PSM. If the Customer fails to do so, then PSM may enter the Customer’s premises and take possession of them and/or charge the Customer for any Containers not returned or which are damaged or destroyed or missing. Until the Containers have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
10.5 The termination of the Contract howsoever arising is without prejudice to the rights, duties and liabilities of either the Customer or PSM accrued prior to termination. The conditions which expressly or impliedly have effect after termination shall continue to be enforceable notwithstanding termination.
11 Service of Notices
11.1 Any notice required or permitted to be given under the Contract shall be deemed to have been validly given if served personally upon that party or if sent by email in accordance with clause 11.2or by Royal Mail Signed For First Class prepaid post its registered office or such other address as may be notified from one party to the other from time to time.
11.2 PSM may serve notices on the customer by email to any address used by the Customer in its dealings with PSM in respect of the Contact. If the customer wishes to serve notices on PSM by email, it may only do so by sending that notice to firstname.lastname@example.org. If a party serves notice by email it must also as soon as reasonably practicable thereafter send a copy of that notice by Royal Mail Signed For First Class prepaid post to the address for service determined in accordance with clause 11.1
11.3 Any notice or other information sent by first class prepaid post shall be deemed to have received by the other party on the second Business Day 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 or if that email falls outside the hours of 9am to 5pm on a Business Day, at 10am on the next Business Day immediately thereafter.
12 Electronic Signatures and Communication
12.1 Each party agrees and confirms that any document in, under or comprising part of the Contract may be signed by electronic signature (in whatsoever form such electronic signature may take) and this method of signing is conclusive evidence of that party’s intention to be bound by that document and/or the Contract (as the case may be) as if that party had signed using a manuscript signature.
13.1 Each right or remedy of PSM under the Contract is without prejudice to any other right or remedy of PSM.
13.2 The persons who sign any document in, under or in connection with the Contract or otherwise enter into the Contract 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 the Contract.
13.3 PSM (but not the Customer) shall be free to sub-contract, assign or novate all or any or any of its rights or obligations under the Contract (in whole or in part) to any other party without the consent of the Customer. For the avoidance of doubt, the Customer may not sub-contract, assign or novate all or any or any of its rights or obligations under the Contract (in whole or in part) to any other party without the consent of PSM.
13.4 The Contract contains the entire agreement between the parties, to the exclusion of all statements, promises or oral or written representations made by PSM, and may only be modified in writing if signed by an authorised representative of PSM. If any part of these Terms and Conditions 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 these Terms and Conditions.
13.5 A person who is not party to the Contract has no right to enforce any term of the Contract (including under the Contracts (Rights of Third Parties) Act 1999).
13.6 The failure of PSM to insist upon the strict performance of any provision of the Contract or to exercise or delay in exercising 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 PSM under the Contract.
13.7 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision shall not affect the validity and enforceability of the rest of the Contract.
13.8 The parties agree that it is not practical to obtain signatures for all services performed and so the Customer accepts that PSM’s computerised records of the services provided will be adequate proof of the fact that those services have been delivered.
13.9 The Contract shall be governed by the laws of England and Wales and English courts shall have exclusive jurisdiction for any disputes arising out of it.