STANDARD TERMS AND CONDITIONS FOR WASTE MANAGEMENT SERVICES
1.1. The Client wishes to contract with WastePlan to make use of the Services.
1.2. WastePlan wishes to contract with the Client to render the Services, and confirms that it is suitably qualified and experienced to render the Services and is able to comply fully with the terms of the Agreement.
1.3. The Client agrees that by signing the Client Application Form and/or SLA, or by virtue of receiving any of the Services from WastePlan, the Client is bound by these Standard Terms and Conditions.
1.4. The Parties accordingly set out herein the terms of their agreement relating to the rendering of Services. These Standard Terms and Conditions apply to any and all Services rendered, including Services rendered prior to the Signature Date.
1.5. These Standard Terms and Conditions apply to the exclusion of any document, notice, order, terms, agreement, quotation or any other document, whether past or future, which the Client purports to apply or seeks to impose between WastePlan and the Client in respect of the Services.
2. SEPARATE AGREEMENTS
Each SLA entered into and signed by the Parties hereto shall constitute a separate Agreement, incorporating these Standard Terms and Conditions.
In the Agreement, clause headings are for convenience and shall not be used in its interpretation and, unless the context clearly indicates a contrary intention –
3.1. an expression which denotes –
3.1.1. any gender includes the other genders;
3.1.2. a natural person includes an artificial or juristic person and vice versa;
3.1.3. the singular denotes the plural and vice versa;
3.2. the following expressions shall bear the meanings assigned to them below and cognate expressions bear the corresponding meanings –
3.2.1. "the Agreement" – each duly concluded SLA, read with and incorporating the WastePlan Client Application and these Standard Terms and Conditions, as amended from time to time, and in the absence of a duly concluded SLA, these Terms and Conditions as applicable to the Services rendered to the Client;
3.2.2. "Business Day" – any day other than a Saturday, Sunday or public holiday in the Republic of South Africa;
3.2.3. "Client" – the client described on the WastePlan Client Application Form and SLA;
3.2.4. "Client's Premises" – the site of the Client as nominated in each SLA at which WastePlan will render the Services;
3.2.5. "Commencement Date" – the commencement date of the Agreement as nominated in each duly concluded SLA;
3.2.6. "CPI" – the Consumer Price Index as published by Statistics South Africa from time to time, which is referred to as the "Headline CPI (for all urban areas)" in Statistical Release P0141 or, in the absence thereof, a similar index nominated or prepared by WastePlan's auditors;
3.2.7. "Equipment" – the equipment utilised by WastePlan to perform the Services including, but not limited to, wheelie bins, balers, sorting tables and scales;
3.2.8. "Group" – WastePlan Holdings (Proprietary) Limited and all of its subsidiary companies;
3.2.9. "Month-to-Month Contract" – has the meaning ascribed thereto in clause 4.2 below;
3.2.10. "NEM:WA" – the National Environmental Management: Waste Act, 2008, as amended;
3.2.11. "OHSA" – the Occupational Health and Safety Act, 1993, as amended;
3.2.12. "Parties" – the parties to the Agreement, being WastePlan and the Client;
3.2.13. "Personnel" – a Party's directors, officers, partners, employees, agents, subcontractors, consultants or other representatives;
3.2.14. "PPE" – personal protective equipment;
3.2.15. "Recyclables" – waste that consists of various grades of recyclable materials, including cardboard, paper, plastic, glass and cans;
3.2.16. "Services" – all waste management and recycling services rendered by WastePlan to the Client, including those as set out in the relevant SLA;
3.2.17. "Service Fee" – the fee for the Services as agreed in the SLA, to be paid by the Client to WastePlan as set out in these Standard Terms and Conditions;
3.2.18. "Service Levels" – the levels of service to be rendered by WastePlan to the Client as set out in the SLA;
3.2.19. "Signature Date" – the date at which the SLA has been signed by an authorised representative of WastePlan;
3.2.20. "SLA" – each cost sheet concluded from time to time, which sets out inter alia the Client’s Premises, Service Fee, Commencement Date and duration of Services performed in terms of the Agreement, and which shall be binding from the Commencement Date stipulated therein upon due execution by both Parties;
3.2.21. "Staff" – the WastePlan staff placed onsite at the Client's Premises from time to time to render the Services;
3.2.22. "Standard Terms and Conditions" – these standard terms and conditions for waste management services and all schedules and annexures hereto, which may be amended from time to time by notice from WastePlan and which can be found at www.wasteplan.co.za/standardtandc;
3.2.23. "Term" – the term of the Agreement as set out in the SLA, commencing on the Commencement Date and terminating on the Termination Date, as nominated therein and in the absence of such term being nominated, 12 (TWELVE) months;
3.2.24. "Termination Date" – the termination date as recorded in the SLA;
3.2.25. "Waste" – all waste as defined in NEM:WA and managed by WastePlan in the rendering of the Services;
3.2.26. "Waste Area" – the separately demarcated area at the Client's Premises meeting the specifications of WastePlan, where the Staff will receive, sort and process Waste in pursuance of complying with WastePlan's obligations in terms hereof;
3.2.27. "WastePlan" – the relevant subsidiary of the Group which renders Services to the Client;
3.2.28. "WastePlan Client Application" – the cover sheet styled "WASTEPLAN CLIENT APPLICATION", which is signed by both Parties;
3.3. the annexures and schedules to the Agreement form an integral part hereof and words and expressions defined in the Agreement shall bear, unless the context otherwise requires, the same meaning in such annexures and schedules;
3.4. unless otherwise stated, any reference to any statute, regulation or other legislation in the Agreement is a reference to that statute, regulation or other legislation as at the Signature Date, and as amended or substituted from time to time;
3.5. if any provision in a definition is a substantive provision conferring rights or imposing obligations on a Party then, notwithstanding that it is contained only in a definition, effect shall be given to such provision as if it were a substantive provision in the body of the Agreement;
3.6. where any term is defined within a particular clause other than this clause 3, that term shall bear the meaning ascribed to it in that clause wherever it is used in the Agreement;
3.7. unless otherwise stated, where any number of days is to be calculated from a particular day, such number shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a day which is not a Business Day, in which case the last day shall be the next succeeding Business Day;
3.8. any reference to days (other than a reference to Business Days), months or years shall be a reference to calendar days, months or years, as the case may be;
3.9. in the event that the day for payment of any amount due in terms of the Agreement should fall on a day which is not a Business Day, then the relevant date for payment shall be the following Business Day;
3.10. where a figure is described in numbers and in words and there is a conflict between the two, the words will prevail; and
3.11. the rule of construction that the contract shall be interpreted against the Party responsible for the drafting or preparation of the Agreement, shall not apply.
4. COMMENCEMENT AND APPLICATION
4.1. The Agreement commences on the Commencement Date, or on the Signature Date of the relevant SLA if no Commencement Date is specified, and shall endure for the Term.
4.2. If no further SLA has been duly concluded upon the expiry of a Term replacing such SLA, and the Agreement has not been terminated in accordance with these Standard Terms and Conditions, the Agreement shall continue on a month-to-month basis ("the Month-to-Month Contract").
4.3. Should either Party not wish for the Agreement to continue on a month-to-month basis as set out in 4.2, such Party shall deliver no less than 3 (THREE) calendar months' written notice to the other Party prior to expiry of the Term.
4.4. The Month-to-Month Contract shall operate on the terms as applicable between the Parties prior to expiry of the Term, provided that the Service Fee shall escalate annually at the rate of CPI, with the first escalation on the expiry date of the Term and each subsequent escalation on each anniversary of the expiry date.
4.5. Subject to the rights of any Party in terms hereof, the Month-to-Month Contract may only be terminated by delivery of 1 (ONE) clear calendar month's written notice by either Party.
4.6. The Client confirms that the Agreement did not come about as a result of direct marketing by WastePlan, but that the Agreement has been concluded as a result of negotiations between the Parties after the Client was provided sufficient time and opportunity to receive and comprehend the nature and effect of all the provisions of the Agreement.
5. SERVICES RENDERED
5.1. WastePlan shall render the Services as set out in these Standard Terms and Conditions, and according to the Service Levels.
5.2. Waste will be collected in the manner and at the frequency as may be suitable in WastePlan's discretion, in light of the type and volume of Waste. All Waste streams managed by WastePlan and emanating from the Client's premises will be recorded and weighed and, where applicable, monthly reports will be available online.
5.3. Where general Waste is managed, general Waste will be discarded into a designated waste container in the Waste Area and such waste will be disposed of at an appropriately licensed landfill. A third-party service provider may be appointed by WastePlan from time to time to collect the general Waste when required.
5.4. Hazardous Waste will be segregated at source by the Client's staff and stored by the Client in a manner compliant with the NEM:WA and all other applicable laws. Hazardous waste will not be managed by WastePlan unless expressly agreed to in the SLA.
5.5. Any contamination of Waste with any form of hazardous Waste will result in the full volume of Waste being classified as hazardous Waste. Where the Client's staff have incorrectly handled Waste in this manner or caused (with or without fault) the contamination, the Client will be liable to WastePlan on demand for an ad hoc safe disposal fee.
5.6. WastePlan Staff will maintain a clean environment at all times in and around the Waste Area in accordance with the OHSA and environmental law.
5.7. WastePlan Staff shall wear the designated WastePlan uniform as required due to the site, which may include an overall jacket, pair of trousers and a t-shirt, safety boots, or gumboots where applicable, a set of gloves, a rain suit (when applicable given weather conditions), and other PPE as required by law from time to time.
6. CLIENT OBLIGATIONS
The Client shall, at its own expense:
6.1. provide WastePlan Staff and Personnel access to the Waste Area for the purpose of carrying out the Services, as well as access to the all common areas of the property that would be necessary to allow WastePlan's Staff and Personnel to provide the Services to the Client;
6.2. provide all electricity (including stand-by power and back-up power), water and other utilities necessary for the installation, operation and maintenance of the Equipment and the provisioning of the Services by WastePlan and its Personnel;
6.3. make adequate toilet and change room facilities available for the Staff at the Client's Premises;
6.4. ensure that measures are taken to provide appropriate security to ensure the safety of the Equipment and Staff, and at least on the same standard of security as is provided for the Client's Premises and Personnel in general; and
6.5. provide the necessary assistance in obtaining the co-operation of the Client's Personnel at the Client's Premises to comply with the operational procedures introduced by WastePlan, with the consent of the Client, in the carrying out of the Services.
7. MOVABLE EQUIPMENT
7.1. The Parties hereby record that if required, WastePlan is entitled to place movable Equipment as set out in the SLA on the Client's Premises.
7.2. The Client shall be liable for any damage caused to or theft of the Equipment as a result of any intentional or negligent conduct of the Client, its Personnel, or any third party.
7.3. Ownership of the Equipment shall remain vested in WastePlan at all times and the Client undertakes to notify its landlord,
within 10 (TEN) Business Days of placement of the Equipment at the Client’s Premises, of WastePlan's ownership rights in the
Equipment. On demand by WastePlan, the Client shall provide WastePlan with proof to WastePlan's satisfaction that the Client's landlord has been adequately informed of, and acknowledges in writing, WastePlan's ownership rights in the Equipment.
8.1. As consideration for the Services provided by WastePlan, the Client undertakes to pay the Service Fee and any ad hoc fee agreed to from time to time. Where Services are rendered on the instruction of the Client in absence of a signed SLA or agreement, the Client shall be liable for payment at WastePlan's standard rates.
8.2. WastePlan shall provide the Client with a tax invoice at the end of each calendar month in respect of the Services rendered to the Client setting out the total amount payable in terms thereof.
8.3. Such invoiced amount shall be due and payable within 30 (THIRTY) days of the date of the tax invoice.
8.4. All amounts due by the Client to WastePlan shall be paid into the bank account nominated by WastePlan in the tax invoice provided to the Client in terms this clause 8, or as otherwise nominated by WastePlan from time to time.
8.5. All payments shall be made free from any deduction or set-off, by way of electronic fund transfer into the bank account nominated by WastePlan from time to time.
8.6. The Service Fee will be subject to a reasonable annual increase linked to CPI, landfill disposal fees and relevant transportation costs. This increase will come into effect on the anniversary date of the Commencement Date of each SLA.
8.7. The Service Fee may escalate at any time during the Term due to a general increase in fuel prices, landfill disposal fees, any other generally applicable input costs, or material changes to legislation or to any regulations issued by a relevant authority that bear a cost for WastePlan in rendering the Services. The Client will be provided with no less than 1 (ONE) calendar months' notice of the increase ("Increase Notice"). On request, WastePlan will provide the Client with a certificate from its auditors confirming the increase. If the Client is dissatisfied with the increase then, subject to clause 16, the Client may terminate the Agreement on written notice prior to the expiry of the Increase Notice.
9.1. Recyclables will be collected by WastePlan, or a third-party service provider appointed by WastePlan from time to time, and delivered to a WastePlan materials recovery facility or other licensed recycling facility, and such waste will then be sold to various buyers.
9.2. If agreed to by the Parties in the SLA, the Client shall receive a rebate for the Recyclables.
9.3. Unless otherwise specified in the SLA, the rebate to the Client for the Recyclables shall be calculated at the published WastePlan rate payable in respect of each material type, as per the detailed cost, and multiplied by the individual mass of such grade of material ("Recyclable Rebate").
9.4. The Recyclable Rebate shall be calculated 1 (ONE) one month in arrears.
9.5. WastePlan is entitled to set the Recyclable Rebate off against the Service Fee.
9.6. The Recyclable Rebate is subject to prevailing market rates, which are subject to change on 30 (THIRTY) days' notice to the Client.
10. INTEREST ON OVERDUE PAYMENTS
10.1. All amounts payable by the Client in terms hereof that remain unpaid on the due date thereof shall bear interest at 2% (TWO PERCENT) per month.
10.2. Interest as aforesaid shall be calculated daily from the due dat for payment of the unpaid amount to the actual date of payment
thereof (both dates inclusive), calculated daily and capitalised monthly in arrears on the last day of each calendar month that such amount remains unpaid.
10.3. WastePlan is entitled to allocate any payment to capital, interest, costs or any other item as WastePlan deems fit in its sole discretion, despite any allocation made or deemed to be made by the Client.
11. FORCE MAJEURE
11.1. If WastePlan is prevented, restricted or delayed directly or indirectly from rendering the Services under the Agreement due to any cause beyond WastePlan’s reasonable control (including without limiting the generality of the afore-going, war, civil commotion, riot, insurrection, strikes, lock-outs, boycotts, fire, explosion, flood, embargoes, export control, international restriction, any order of any international authority, any court order, any requirements of any other competent authority, acts of any state or government or other authority and continuous disease, owner's death or other acts of God), then WastePlan:
11.1.1. shall be relieved of its obligations during the period that such event and its consequences continue but only to the extent so prevented; and
11.1.2. shall not be liable for any delay or failure in the performance of any of its obligations thereunder or for any loss or damage (general, special or consequential) which the Client may suffer due to or resulting from such delay or failure, provided that written notice shall within 48 (FORTY-EIGHT) hours of the occurrence constituting force majeure be given by WastePlan to the Client, and provided further that the obligations to give such notice shall be suspended to the extent necessitated by such force majeure.
11.2. WastePlan shall use its reasonable endeavours to terminate the circumstances giving rise to force majeure and upon termination of the circumstances giving rise thereto, shall forthwith give written notice thereof to the Client.
12.1. If the Client commits any breach of the Agreement and fails to remedy such breach within 10 (TEN) Business Days of written notice requiring the breach to be remedied, then WastePlan will be entitled, at its option –
12.1.1. to claim immediate payment or specific performance of any of the Client's obligations under the Agreement, with or without claiming damages, whether or not such obligation has fallen due for performance;
12.1.2. to cancel the Agreement, with or without claiming damages, in which case written notice of the cancellation shall be given to the Client, and the cancellation shall take effect on the furnishing of the notice; and in any event:
12.1.3. to suspend the provision of Services on the conditions notified in writing by WastePlan;
12.1.4. to remove all movable Equipment;
12.1.5. to claim the immediate return of all property of which WastePlan has reserved its ownership; and
12.1.6. to exercise all such rights of security which have been granted to WastePlan by the Client or any other person.
12.2. The Client hereby consents in terms of Section 58 of the Magistrates' Court Act 32 of 1944, as amended, to judgment being taken against it in respect of any amount owed by it to WastePlan upon cancellation by either Party of the Agreement.
12.3. WastePlan's remedies in terms of this clause 12 are without prejudice to any other remedies to which WastePlan may be entitled in law.
12.4. A certificate signed by any manager or director of WastePlan, whose authority it shall not be necessary to prove, as to the existence and amount of indebtedness of the Client at any time and as to the fact that the same is due and payable shall be prima facie proof, including for purposes of provisional sentence and summary judgment against the Client in any competent court, of the existence of the debts referred to in such certificate, and amounts owing thereon and the fact that such amounts are liquidated, due and owing and have not been paid.
12.5. In event of breach of the Agreement, the Client will be liable for WastePlan's legal costs incurred, on a scale as between attorney and own client, which costs shall be due on demand.
13. SUMMARY TERMINATION
13.1. WastePlan shall be entitled, without prejudice to any other rights or remedies to which it may be entitled in such circumstances, to terminate the Agreement forthwith in any one or more of the following circumstances:
13.1.1. if the Client is wound up, liquidated, sequestrated, deregistered, placed in business rescue or placed under judicial management, whether provisionally or finally, and whether voluntarily or compulsorily, or passes a resolution for any such event, or has any such application or other process brought against or in respect of it; or
13.1.2. if the Client enters into a compromise or attempts to enter into a compromise with its creditors; or
13.1.3. if the Client has any judgment (or similar award) awarded against it and fails to satisfy such judgment within 30 (THIRTY) days after demand; or
13.1.4. if the Client commits any act that is calculated to harm the reputation of or goodwill attaching to WastePlan.
13.2. WastePlan is entitled to terminate the Agreement at any time by giving the Client 1 (ONE) calendar month’s written notice of its intention to terminate the Agreement.
14. EARLY TERMINATION
If the Parties have agreed that the Agreement will run for the Term and the Client terminates the Agreement before the expiry of the Term then, without prejudice to all other rights or remedies available to WastePlan in terms of the Agreement or in law, the Client will be liable on demand for payment of a reasonable termination penalty as notified in writing by WastePlan.
15. WARRANTIES AND INDEMNIFICATION
Notwithstanding any other clause in the Agreement:
15.1. WastePlan and its Personnel shall not be liable for, and the Client hereby indemnifies WastePlan against, all loss, liability, damages or expense of whatever nature and howsoever caused ("Claim"), which may be suffered by the Client, it's Personnel, or any third party, irrespective of whether such Claim arises from contract, delict or otherwise, and provided that such Claim was not as a result of WastePlan's gross negligence or intentional conduct.
15.2. WastePlan and its Personnel shall not be liable for, and the Client hereby indemnifies WastePlan against, all loss, liability, damage or expense of whatever nature and howsoever caused which may be suffered by the Client, it's Personnel, or any third party, provided that such claim was not as a result of WastePlan's gross negligence or intentional conduct.
15.3. Neither Party shall be liable to the other Party for any losses which constitute indirect, special or consequential damages.
15.4. Each Party warrants to the other Party that it has the power, authority and legal right to sign and perform in terms of the Agreement, and that the Agreement has been duly authorised by all necessary actions of its directors and constitutes valid and binding obligations on it in accordance with the terms of the Agreement.
16. DOMICILIUM AND NOTICES
16.1. The Parties choose as their domicilia citandi et executandi for all purposes under the Agreement, whether in respect of court process, notice or other documents or communications of whatsoever nature, the following addresses:
16.1.1. WastePlan: The physical and email addresses as set out in the SLA.
16.1.2. The Client: The physical and email addresses as set out in the WastePlan Client Application, or in its absence, as set out in the SLA.
16.2. Any notice or communication required or permitted to be given in terms of the Agreement shall be valid and effective only if in writing, but it shall be competent to give notice by email.
16.3. Either Party may by notice to the other Party change the physical address chosen as its domicilium citandi et executandi to another physical address, provided that the change shall become effective on the 4th (FOURTH) Business Day from the deemed receipt of the notice by the other Party.
16.4. Any notice to a Party:
16.4.1. sent by prepaid registered post in a correctly addressed envelope to it at its domicilium citandi et executandi shall be deemed to have been received on the 4th (FOURTH) Business Day after posting (unless the contrary is proved);
16.4.2. delivered by hand to a responsible person during ordinary business hours at its domicilium citandi et executandi shall be deemed to have been received on the day of delivery; or
16.4.3. sent by email to its chosen email address, shall be deemed to have been received on the date of dispatch (unless the contrary is proved).
17.1. The Client shall not be entitled to cede or assign any of its rights or delegate any of its obligations under the Agreement without the written consent of WastePlan, which consent will not be unreasonably withheld.
17.2. WastePlan shall be entitled to cede or assign any of its rights or delegate any of its obligations under the Agreement, on reasonable notice in writing to the Client.
17.3. Save as expressly provided for herein, each paragraph, clause, term and provision of the Agreement and any portion thereof shall be considered severable, and if for any reason any part of the Agreement is held to be invalid or unenforceable, same shall not impair the validity and operation of the remainder of the Agreement, which shall continue to be given full force and effect and be binding upon the Parties.
17.4. The Agreement shall not prevent WastePlan from entering into similar agreements with third parties.
17.5. The Agreement constitutes the sole record of the agreement between the Parties with regard to the subject matter hereof. Neither Party shall be bound by any express or implied term, representation, warranty, promise or the like not recorded herein.
17.6. No addition to, variation of, or agreed cancellation of, the Agreement shall be of any force or effect unless in writing and signed by or on behalf of the Parties.
17.7. No relaxation, indulgence or extension of time, which any Party may grant to any other, shall constitute a waiver of the rights of that Party and/or preclude that Party from exercising any existing or future rights.
17.8. Without prejudice to any other provision of the Agreement, any successor-in-title of either Party shall be bound by the Agreement.
17.9. The Agreement shall be interpreted and governed by the laws of the Republic of South Africa, and the parties hereby consent to the non-exclusive jurisdiction of the Gauteng Division of the High Court, Pretoria.
17.10. The Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument.