2.1

The Company provides two service and payment options which the Customer selects on signing up for the Services and which will be confirmed in the Customer’s welcome email from the Company. It is possible to switch service options upon request, which will take effect at the start of the next Trading Week (or as otherwise notified by the Company) subject to the Customer passing any credit checks which the Company may require in respect of Pay Per Collection:

• Pre-Pay – pay upfront for Recycling Bags by debit or credit card
• Pay Per Collection – pay monthly in arrears per Recycling Bag collected by direct debit.

2.2

Commencement of Pay Per Collection is dependent on the Customer’s prior completion of the direct debit mandate form as required and supplied by the Company and the Company may require the Customer to pay a deposit to be held on account by the Company and which may be set off at any time against the Customer’s future invoice/s.

3.1

With effect from the Services commencement date notified in writing to the Customer by the Company and subject to the access and availability requirements set out in clauses 4.1 (a), (f) and (g), the Company shall collect all Recycling Bags from the Premises during the Collection Window in the Trading Week (full seven days a week service).

3.2

Upon collection, all property rights in the Dry Mixed Recycling collected shall pass to the Company and the Company shall then dispose of it responsibly.

3.3

The Company shall provide the Services with reasonable care and skill in accordance with current industry standards of the recycling collection sector in the United Kingdom.

3.4

The Company shall ensure that in performing the Services it is compliant with all applicable Recycling Legislation, including ensuring that the final disposal location for the Dry Mixed Recycling collected is appropriately licensed to accept that classification of waste.

3.5

In advance of commencement of the Services, the Company shall provide the Customer with Recycling Bags in the amount purchased via Pre-Pay or in a sufficient quantity to meet the predicted monthly requirements the Customer has agreed with the Company for Pay Per Collection.

3.6

The Company shall ensure that the Recycling Bags are sufficiently durable for the intended purpose of the Services.

5.1

The Company shall not be obliged to collect and shall not be liable to the Customer for failure to collect Recycling Bags which are overfilled or Contaminated. Where the Company does perform collections of Recycling Bags which are Contaminated it shall notify the Customer, and the Customer will be liable to pay a contamination charge in respect of each Contaminated Bag, in the amount assessed by the Company (acting reasonably) to reflect the cost of processing such contamination.

5.2

If the Customer provides Recycling Bags which are Contaminated, the Company reserves the right to suspend or terminate the collection services to the Customer without liability upon immediate written notice.

6.1

Pre-Pay Customers:

a) are deemed to have duly paid Service Charges in respect of any Recycling Bag purchase for which the Company has received payment by credit or debit card payment in full, as confirmed by the applicable card provider and/or the Company’s payment service provider. The Company will provide the Customer with a receipt confirmation for all such payments by email; and

b) must pay any sum owing under the Conditions which is not a Service Charge in full and cleared funds within 11 days of the date of invoice.

6.2

Pay Per Collection Customers must pay Service Charges and any other sums owing under the Conditions in full and cleared funds within 11 days of the date of invoice.

6.3

The Company may vary the Service Charges (price per Recycling Bag for Pre-Pay and the price per Recycling Bag collected) at any time upon giving no less than 1 months’ written notice to the Customer.

6.4

The Company reserves the right to charge the Customer an account renewal fee in the amount determined by the Company and in addition to any further Service Charges if they have not purchased any Recycling Bags in a 12 month period and wish to continue receiving Services.

6.5

All Service Charges and other sums payable under these Conditions are exclusive of amounts in respect of value added tax chargeable for the time being (VAT), which shall be separately payable by the Customer upon receipt from the Company of a valid VAT invoice.

6.6

If the Customer fails to pay any Charges payable and due under these Conditions in whole or in part by the due date, the Company may at its sole discretion and without limiting its remedies under these Conditions:

a)  apply a surcharge of 1.25% of the total invoice value, to be added to each of the Customer’s next invoice(s) for payment until the debt is cleared in full. For the avoidance of doubt, this charge shall be payable for each and every failure to pay, whether any failure to pay is as a result of any disputed or undisputed amount whatsoever; and/or

b)  as an alternative to the invoice surcharge in section a) above, claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and/or

c)  the Company may, without liability, suspend the Services (in whole or in part) until payment of all monies outstanding from the Customer under these Conditions is received in full. The Customer will be notified of this in advance.

6.7

The Customer shall make all payments due to the Company in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise. The Company will rectify any undisputed errors and credit will be given to the Customer on the next invoice.

6.8

The Customer shall be liable to pay an administration charge (as determined by the Company to reflect the resulting bank charges and administration costs) each time a Customer’s payment by direct debit is refused.

6.9

Direct debits remaining unpaid may not be carried forward to the next billing cycle. The Company will advise the Customer of the value of the refused payment and (unless otherwise agreed) the Customer must pay the full amount of the refused payment (together with the administration charge(s)) within a timescale specified by the Company by credit or debit card.

6.10

When payments by direct debit are refused on more than one occasion the Company reserves the right to either insist that the Customer switches to Pre-Pay or to terminate the Services.

7.1

The following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:

a)  any breach of these Conditions;

b)  any representation, statement or tortious act or omission including negligence, recklessness or wilful misconduct arising under or in connection with these Conditions; and

c)  physical damage to property caused directly or indirectly by any act or omission or by the negligence, recklessness or wilful misconduct of the Company or its employees, agents and sub-contractors.

7.2

Except where the Customer is dealing as a consumer (as defined in section 12 of the Unfair Contract Terms Act 1977) all warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from these Conditions

7.3

Nothing in these Conditions excludes or limits the liability of the Company:

a)  for death or personal injury caused by the Company’s negligence; or

b) under section 2(3), Consumer Protection Act 1987; or

c) for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or

d) for fraud or fraudulent misrepresentation.

7.4

Subject to clauses 7.2 and 7.3:

a)  the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the supply of the Services shall be limited to the aggregate amount of Service Charges paid by the Customer in the last 12 months; and

b) the Company shall not be liable to the Customer for:

(i) loss of profit, use, opportunity, business and/or anticipated savings;

(ii) depletion of goodwill or reputation and/or similar losses;

(iii) losses resulting from delay or suspension in the supply of the Services, in whole or in part (howsoever arising);

(iv) any liability to third parties incurred by, or contributed to by, the Customer or any of its employees, agents or contractors;

(v) any liability arising as a result of any statement or representation made by any employee, agent or sub-contractor of the Company unless such statement or representation is confirmed in writing on the Company’s headed notepaper and approved by the Company; or

(vi) any liability arising out of or as a result of an event of force majeure,

in each case whether direct, indirect or consequential, or any claims for consequential compensation, whatsoever and howsoever caused (whether by negligence of the Company, its employees or agents or otherwise) which arise out of or in connection with the supply, non-supply or late supply of the Services by the Company and/or arising pursuant to these Conditions.

7.5

The Customer is responsible for providing an adequate level of public liability insurance cover to its customers and other persons (including, but not limited to, the Company’s employees, agents and sub-contractors) at its Premises pursuant to the Occupier’s Liability Act 1984.

7.6

If any part of this clause 7 is found to be unenforceable by any court or competent authority or would be found to be unenforceable if it were interpreted or construed in a particular way, then, it is the parties’ express intention that the relevant wording should be interpreted or construed so as to avoid such a finding and that, in the event of such a finding, the remainder of the provision in question shall be interpreted or construed to give it full effect.

7.7

The Customer shall indemnify the Company (including, without limitation, its nominated personnel and any service providers and agents) in respect of all losses, liabilities, costs, damages, fines or charges sustained or incurred (including direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person) arising directly or indirectly from the Customer’s negligence or breach of these Conditions, its failure to perform or any delay in the performance of any of its obligations or for any damage or injury to the Company, its employees, agents, contractors, property or equipment caused by the actions or defaults of the Customer or its staff or agents whilst on, or at, the Customer’s premises or otherwise or as a result of providing the Services.

8.1

The Company shall only use the Customer’s personal information in accordance with the Company’s Privacy Policy which can be found at www.smithsnews.co.uk/privacy-policy. Please take the time to read the Privacy Policy, as it includes important terms which apply to these Conditions.

8.2

Save as may be varied by the Privacy Policy, the Company will in any case use the personal information the Customer provides to the Company in order to:

a) provide the services to the Customer;

b) conduct a credit reference search and record;

c) process payment for the Services; and

d) inform the Customer about similar products or services that the Company provides from time to time.

9.1

The Customer and the Company each have the right to terminate the provision of the Services at any time upon giving at least 2 weeks’ notice in writing to the other.

9.2

In addition to and without prejudice to the Company’s other rights, the Company may terminate or suspend the Services without liability upon written notice to the Customer with immediate effect in the following circumstances:

a) upon the Customer’s irremediable breach of any of these Conditions or, (where such a breach is capable of remedy) on failure to remedy any breach within seven (7) days of being given written notice of such breach by the Company of any of these Conditions;

b) where the Customer (being a company) becomes the subject of a voluntary arrangement under section 1 of the Insolvency Act 1986; suspends or threatens to suspend or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income; has passed a resolution for its winding up; has a petition presented to any Court for its winding-up or for an administration order or (being an individual, partnership or firm) enters into a composition or arrangement with his creditors; has a bankruptcy order made against him, has been made the subject of an application for an interim order under section 253 Insolvency Act 1986 or has an interim receiver appointed under section 286 Insolvency Act 1986, or anything analogous to any of the foregoing occurs to the Customer under the laws of any jurisdiction;

c) where the Customer fails to pay any amount falling due under these Conditions in full on the due date;

d) where the Company obtains judgment in a court or tribunal of competent jurisdiction against the Customer in respect of a debt or unpaid invoice;

e) where the Customer has in the Company’s reasonable opinion ceased or threatened to cease to trade or carry on business;

f) where an encumbrancer takes possession of, or if any distraint, execution or other process is levied or enforced on any of the property or assets of the Customer;

g) where the Customer (being an individual) dies, becomes of unsound mind or is otherwise unable to perform his obligations under these Conditions for a continuous period of three (3) months or for an aggregate period of six (6) months in any rolling 12 month period;

h) where the behaviour of the Customer (or any of its employees, agents or contractors) is not consistent with accepted business trading relations or where any act is committed which brings or may bring the reputation or goodwill of the Company into disrepute or otherwise adversely affects trading connections with or the business of the Company; or

i) where the Customer has either not purchased any Recycling Bags or utilised the Services in the preceding 12-month period.

9.3

In the event that a court makes an order for the Customer to be wound up or the Customer’s business goes into receivership or administration, the Company reserves the right to charge interest on the Customer’s outstanding balance from time to time of its debts with the Company from the date of liquidation, receivership or administration (as the case may be) at 8% above the Bank of England base lending rate from time to time.

10.1

Upon termination by the Company in accordance with clause 9.1, the Company will refund to the Customer the value of any unused deposit held or unused Recycling Bags which the Customer has paid for in full via Pre-Pay in the 6 months prior to such termination, by way of invoice credit and bank transfer for any excess.

10.2

Upon termination by the Company in accordance with clause 9.2:, the Customer must pay an administration charge (in the amount determined by the Company acting reasonably) in respect of processing the Customer’s closure of account/closure of Premises.

10.3

Upon termination by the Customer or the Company for any reason:

a) all rights and obligations under these Conditions will automatically terminate with the exception of:

i. such rights of action as shall have accrued prior to the date of termination (including, but not limited to, any and all claims for any breach of any term, condition or undertaking contained in these Conditions); and

ii. all obligations under these Conditions which are expressed to (or are by implication intended to) survive its termination and continue thereafter including (but not limited to) clauses 7 and 10; and

b) the Customer must:

i. promptly return or make available for collection any Company property in its possession, as specified in writing by the Company; and

ii. pay the final and all outstanding invoice(s) presented by the Company to the Customer.

11.1

The Company shall take all reasonable steps to ensure collection of Dry Mixed Recycling from the Customer is completed in accordance with these Conditions. However, if the Company is either prevented, delayed and/or hindered from conducting any collection from the Customer, or otherwise carrying out its obligations, by reason of any circumstances beyond the Company’s reasonable control including (but not limited to) acts of God, seizure under legal process, riots, civil commotion or unrest, demonstrations, strikes or lock-outs (general or partial stoppage), any consequence of war, terrorism and kindred risks, labour disputes of any kind, industrial action of any nature whatsoever (whether any of the foregoing relate to the Company’s employees, agents, contractors or others), fire, floods, storms, delays or cancellations on the rail network, traffic accidents, serious traffic congestion, any shortage of the supply of any essential materials or services or compliance with any law, governmental or regulatory order, rule, regulation, undertaking or direction (each being “an event of force majeure”), the Company’s ongoing obligations under these Conditions will remain in effect but will be temporarily suspended without liability to the Customer for so long as an event of force majeure shall continue. In addition, the Company reserves the right, without liability, to defer the date and time of or cancel Dry Mixed Recycling collection(s) from the Customer if it is prevented from or delayed in the carrying on of its business due to an event of force majeure.

12.1

The Company may at any time assign, or deal in any other manner with its rights and obligations under these Conditions or any part thereof, including sub-contracting of any of its obligations under the Conditions to any third party or agent.

12.2

The Customer shall not be entitled to assign, or deal in any other manner with its rights and obligations under these Conditions or any part of thereof, including sub-contracting any of its obligations under the Agreement, without the prior written consent of the Company.

13.1

Agency/Partnership

Nothing in these Conditions shall be taken as constituting the Customer as an agent or partner of the Company.

13.2

Remedies

Each right or remedy of the Company under these Conditions is without prejudice to any other right or remedy of the Company whether under these Conditions or not.

13.3

Invalidity

If any of the clauses, or part of a clause, of these Conditions shall be held by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability, unreasonableness or breach be deemed severable and the remaining provisions of the clauses or part of a clause of these Conditions (and the remainder of such provisions) shall continue in full force and effect.

13.4

Waiver

a) No failure by the Company to exercise nor any delay in the Company exercising any right or remedy under these Conditions in respect of a breach by the Customer of these Conditions shall operate or be construed as a waiver of such rights or remedy or of any other right or remedy.

b) Any waiver by the Company of any breach of, or any default under, any provision of these Conditions by the Customer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of these Conditions.

13.5

Variation

The Company reserves the right to vary, alter or add to the terms of these Conditions. The Company will give the Customer not less than 1 months’ notice of any change to these Conditions but any variation, alteration or addition shall be without prejudice to each party’s accrued rights and liabilities prior to that variation, alteration or addition.

13.6

Notices

Any notice given by either party to the other under these Conditions shall be in writing addressed to the other party. In the case of the Company, the notice must be addressed either (i) to the Company’s registered office, currently at Rowan House, Cherry Orchard North, Kembrey Park, Swindon, SN2 8UH; or (ii) by email to recycle@smithsnews.co.uk and, in the case of the Customer, either (i) at the Premises, or such other address previously notified in writing to the party giving the notice; or (ii) at the most current Customer contact email address supplied by the Customer to the Company. Notices must be delivered either by hand or by first class post or by email to the Customer. The notice will be deemed to have been received at the time of delivery if delivered by hand or email and on the second Business Day after posting in the case of a posted letter.

13.7

Free Trials/Discounts

The Company may offer free trials or discounts from time to time. All such free trials or discounts are not transferable or redeemable for cash. Unless otherwise stated, free trials or discounts: (1) are only available to new customers, (2) cannot be used retrospectively and (3) can only be redeemed once per customer. Free trials and/or discounts are subject to any additional specific terms and conditions which are specified at the point of issue. The Company reserves the right to discontinue or modify any free trial or discount at any time without prior notice.

13.8

Confidentiality

The Customer warrants that any information about the business of the Company, which may be provided to it or comes into its possession by any means, will not be passed to any other party either orally in writing or electronically, without the express permission of the Company.

13.9

Governing Law and Jurisdiction

This Agreement shall be governed by, and construed in accordance with, English law and the Customer and the Company agree that the courts of England shall have exclusive jurisdiction in relation to any dispute or matter arising in connection with these Conditions.