The Customer’s attention is particularly drawn to the Clauses hereof which exclude or limit the Company’s liability and those which require the Customer to notify and/or indemnify the Company in certain circumstances.
“Agreement” means the Application and the Conditions together with all schedules and appendices, including Appendix 1 (Data Processing Addendum) attached hereto, and all amendments made thereto by written agreement of the Customer and the Company.
“Application” means the Customer Application Form as completed by the Company and the Customer.
“Company” means Cyclone Shredding Limited having its registered office at Pleasant House, Pleasant Lane, Dublin 8 (or any other member of the Cyclone Couriers group of companies carrying an alternative business name, to include Recyclone)
“Confidential Information” means all information and data (in whatever medium) about or relating to the organization, business, affairs, plans, transactions, tenants, employees, customers, suppliers, directors, trustees, officers, shareholders, unitholders, proposals, projections, strategies, finances, financial condition, assets, know-how, trade secrets, methodologies, costs, operations, accounts, strategic direction, operational processes, systems, intellectual property rights, Personal Data or activities of the Customer, its Affiliates or their respective clients communicated to or acquired, developed or generated by the Company or its subcontractors as a result of or in anticipation of or in connection with this Agreement or any other information or data which any recipient ought reasonably to regard as confidential or which is marked or designated as confidential by the Customer and/or its Affiliates (and includes any information or data based upon, containing or derived from such information or data) and includes all Contracted Waste.
“Conditions” means these Terms and Conditions together with the Application
“Contracted Waste” means the waste to be disposed of and placed or deposited in the Equipment in accordance with the details in the Application
“Customer” means any person at whose request or on whose behalf the Company undertakes any business
“Data Protection Laws” has the meaning set forth in Appendix 1 (Data Processing Addendum).
“Deliverable” means a deliverable to be provided to Customer and/or its Affiliates by the Company as set out in a Contracting Document, including software, hardware, documentation, and other materials and items provided, designed, developed or delivered by the Consultant as part of, or as a result of the receipt of, the Services.
“Destruction Visit” means a visit by a representative of the Company to the Customer for the purposes of collecting a destroying Contracted Waste
“Equipment” means all classes of machinery, equipment, tools, and apparatus, including but not limited to the main consoles, 240 litre wheeled bins, personal document containers, cardboard consoles, paper sacks and polypropylene sacks which belong to the Company and are provided to the Customer for use under the terms of the Agreement together with all extras, additions, spare parts and accessories.
“Industrial Shredding Unit” means the mobile destruction unit operated by the Company for the purposes of destroying the Contracted Waste
“Person” means persons or any Body or Bodies Corporate
“Personal Data” has the meaning set out in Appendix 1 (Data Processing Addendum).
“Personal Data Breach” has the meaning set out in Appendix 1 (Data Processing Addendum).
“Personnel” means an employee, officer, subcontractor, agent or another person whatsoever acting for the Company or otherwise under the control and direction of the Company or an affiliate or subcontractor of the Company.
“Service Period” means the period of 12 months from the commencement date specified on the Application unless specified to the contrary in the Application.
“Services” means the uplifting/shredding/recycling/destruction services to be provided by the Company to the Customer as detailed in the Application.
“WMA” means the Waste Management Act, 1996 and all regulations thereunder and statutory modifications or re-enactments thereof
(a) Subject to sub-paragraphs (b) and (c) below all and any activities of the Company in the course of business whether gratuitous or not are undertaken subject to the Agreement.
(b) Any amendment to the Agreement which is agreed between the Company and the Customer shall be effective only if clearly indicated on the
Agreement in writing and initialled by an authorized representative of both the Company and the Customer.
(a) The Company covenants and agrees not to use any subcontractors, including sub-processors, or other third-party arrangements for the provision of all or any portion of the Services or for the fulfilment of any of its duties or obligations under this Agreement without the express prior written consent of the Customer.
(b) The Company reserves to itself reasonable liberty as to the means, route and procedure to be followed in the handling, transportation and storage of any Contracted Waste.
(c) The Company and its Personnel will carry out the Services in accordance with all applicable laws, regulations, by-laws, ordinances, orders, codes, standards, policies, rules and the requirements of the Customer and/or its affiliates (“Applicable Law”). The Company and its Personnel will perform the Services and all of its duties and obligations under this Agreement in a good, proper, professional and efficient manner, and with the same degree of skill, diligence, competency and knowledge which is ordinarily exhibited and possessed by professionals, licensed, as required, in good standing and carrying on similar business or activities and in any event not less than the standard of care undertaken by the Customer or its consultants.
Unless the contrary is communicated to the Company in advance of any collection of Contracted Waste on behalf of the Customer, the Customer warrants that it is the owner of the Contracted Waste and the Customer shall save harmless and keep the Company indemnified from and against all liability, loss, damage, costs and expenses whatsoever (including without prejudice to the generality of the foregoing all taxes, impositions, duties, levies, deposits, and outlays of whatever nature levied by any authority in relation to the Contracted Waste) arising out of the Company acting in accordance with the instructions of the Customer or arising from any breach by the Customer of any warranty contained in the Conditions or from the negligence of the Customer.
(a) For Customers holding accounts with the Company payment from the Customer to the Company for services provided pursuant to the Agreement shall be made by the Customer within 30 (thirty) days of the issue of an invoice for those services such payment to made in Euro failing which interest will become due at a rate of 1% per completed calendar month from the date of the invoice on the outstanding sum owed to the Company and a calendar month shall be completed on the date of the month or months following the invoice date that coincide with the day of the month on which the invoice was issued.
(b) For Customers who have ordered the destruction or disposal of Contracted Waste without holding an account with the Company, payment shall be made immediately upon completion of the Destruction Visit in cash (or such other form as the Company may agree)
(c) The Company reserves the right to delay or refuse performance of the Services for the Customer until all or any outstanding payments have been received from the Customer.
Unless the Company has agreed otherwise in writing with the Customer, the Company shall collect the Contracted Waste from the collection point at the Customer premises specified on the Application at the times specified on the Application. When collecting the Contracted Waste the Company will not be under any obligation to provide any plant, power or labour, other than that carried out by the vehicle or vehicles required for loading or unloading the Contracted Waste.
The Customer will be responsible for arranging all access requirements at the Customer premises to allow collection of the Contracted Waste from that premises at the times specified in the Application.
The Company shall not be required to provide service beyond the usual place of collection or delivery but if any such service is requested by the Customer it shall be at the sole risk of the Customer.
The Customer shall package the Contracted Waste in such a manner as to prevent any leakage or spillage of the Contracted Waste.
The Company warrants to the Customer that:
(a) The Company holds a waste collection permit under the WMA; and
(b) The Company is fully aware of its duties obligations and responsibilities under the WMA and shall comply therewith in the exercise of all services and functions pursuant to the Agreement; and
(c) The Company will transport, keep, treat and dispose of the Contracted Waste in accordance with the terms of its waste management licence.
The Company shall be relieved of its obligation to perform any disposal of Contracted Waste on behalf of the Customer to the extent that such delivery is prevented by failure of the Customer, fire, weather conditions, industrial dispute, labour disturbance, civil unrest or other cause beyond the reasonable control of the Company.
The Agreement and any act or contract to which it shall apply shall be governed by the laws of the Republic of Ireland and any dispute arising out of any act or contract to which the Agreement applies shall be subject to the exclusive jurisdiction of the Courts of the Republic of Ireland.
The Company shall perform its duties with a reasonable degree of care, diligence, skill and judgement. The Equipment will be supplied in good condition and shall be deemed to have been accepted by the Customer in such condition unless the Customer notifies the Company to the contrary within 24 hours of delivery of the Equipment.
All common law or statutory warranties with respect to the Equipment are expressly excluded.
The Company shall not in any circumstances whatsoever be liable to the Customer or any other person for indirect or consequential loss such as (but not limited to) loss of profits, loss of market, economic loss of any kind or any other consequences of delay or deviation howsoever caused.
This Agreement is for the Service Period unless terminated earlier in accordance with the terms of this Agreement. Customer may renew this Agreement on the same terms for additional terms of 1 year upon 10 days’ prior written notice to the Company.
In the event that either:
(a) The Customer fails to honour the credit terms contained in the Agreement as detailed in clause hereof, or
(b) The Customer does not transact business with the Company for a period of 90 consecutive days
The Company shall have the option at its absolute discretion to close any account held by the Customer and if considered necessary, to refuse to transact further business with the Customer without the need for any written advance notification to the Customer.
The Customer may terminate this Agreement at any time:
(a) with immediate effect upon written notice to the Company in the event of an insolvency event occurring with respect to the Company. For the purposes of this Agreement, “insolvency event” means if the Consultant: (i) makes an assignment for the benefit of creditors or becomes subject to any bankruptcy or insolvency proceeding or takes the benefit of any statute for bankruptcy or insolvency or makes any proposal or arrangement with creditors or admits its inability to pay its debts as they become due; (ii) has a trustee, receiver, receiver-manager, or similar person appointed in respect of its material assets or business; or (iii) takes any steps to wind-up or liquidate or ceases to carry on business;
(b) with immediate effect in the event of a material breach by the Company of any term or provision of this Agreement which is not remedied within five (5) days of delivery of a notice of such breach by the Customer to the Company;
(c) upon not less than 30 days prior written a notice to the Company for any other reason or for no reason; and
(d) as otherwise provided herein.
Upon termination of the contract, the Customer will pay a removal charge for demountable Equipment from their premises of 35.00 Euro plus VAT per unit of Equipment to be removed (unless otherwise agreed between the Company and the Customer).
The Customer shall assume all risk and liability for any damage to Equipment left at the Customer premises, fair wear and tear excepted, and shall notify the Company immediately of any loss of or damage to the Equipment or any part thereof.
The Customer shall assume all responsibility for the items which are placed in the Equipment as part of the Contracted Waste until the Contracted Waste is collected by the Company. In the event that any item is placed in the Equipment which is reasonably likely to damage the Industrial Shredding Unit (to include, by way of example only any form of metal, company seals, iron bars) and fails to notify the Company in advance of that item being placed in the Industrial Shredding Unit the Customer shall be liable for the cost of any damage caused to the Industrial Shredding Unit excluding any consequential or economic loss incurred by the Company.
The Customer will only use the Equipment for the purpose of containing the Contracted Waste and no other purpose and shall ensure at all times that the Equipment is readily accessible to the Company for the purposes of removal of Contracted Waste or replacement of Equipment.
The Equipment shall remain at all times the property of the Company.
The Company undertakes and agrees to keep secret and strictly confidential and to not disclose the Customer’s Confidential Information to any third party without the Customer’s prior written consent.
Notwithstanding Section 13.1 and subject to Section 2 (a) (Subcontractors), Section 14 (Privacy and Security) and Appendix 1 (Data Processing Addendum), the Company may disclose the Customer’s Confidential Information to its subcontractors who are directly involved in, and need to know such Confidential Information solely to the extent necessary to perform the Company’s obligations under this Agreement. The Company will ensure that such subcontractors are aware of the confidential nature of the Confidential Information and will impose upon them confidentiality obligations which are at least as protective of the Confidential Information as those which are set out in this Agreement (except that any further disclosure by a subcontractor to any other person will be prohibited). The Company agrees that it will be liable for any breach of the confidentiality obligations in this Agreement by the Company or any person or entity to whom the Company discloses any Confidential Information.
The Company will use the Customer’s Confidential Information solely for the purposes of performing its obligations under this Agreement and will treat such Confidential Information in accordance with best industry practice. This includes organizational and physical restrictions relating to storage, processing, use and dissemination of Confidential Information. The Company will, at the Customer’s request, notify it of all such measures and supply to it all information it may reasonably require in relation to such measures.
If the Company suspects that the confidentiality or security of the Customer’s Confidential Information has been breached or placed at risk of being breached it will immediately notify the Customer with a written notice to follow where the initial notification is not written.
The Company, to the extent that the Customer’s Confidential Information is no longer required by it to perform its obligations under this Agreement, will (and will procure that its subcontractors will) either, at the Customer’s option, securely return or destroy all the
Customer’s Confidential Information and delete such Confidential Information entirely from the Company’s and its subcontractor’s system and files. The Company will promptly certify in writing to the Customer that this has been done.
If the Parties have a dispute as to whether particular information or data is Confidential Information, the Company will treat such information as the Customer’s Confidential Information. The Company may not withhold or retain any Confidential Information of the Customer as a means of resolving any dispute with the Customer or any other person.
The Company acknowledges and agrees that damages would not be an adequate remedy for any breach by it of this Section 13 (Confidentiality) and that the Customer and its Affiliates are each entitled to injunctive relief for any threatened or actual breach of this Section 13 (Confidentiality) and that no proof of damages is necessary for the enforcement of the provisions of this Section 13 (Confidentiality). The Company agrees that the Customer may enforce this Section 13 (Confidentiality) on its and on its Affiliates behalf.
Nothing in this Section 13 (Confidentiality) prevents Company from disclosing Confidential Information to the extent that it is legally compelled to do so by a governmental authority under Irish law, provided that it gives the Customer advance notice of such proposed disclosure as soon as possible and provides it with reasonable assistance in seeking to lawfully prevent or limit any such disclosure. If the Company receives any access or disclosure request from a governmental authority, it will use all reasonable endeavours to get it to deal directly with the Customer instead of making a request of the Company before making any disclosure.
This Section 13 (Confidentiality) does not limit or affect the Company’s data protection obligations, including in Appendix 1 (Data Processing Addendum) under this Agreement.
The obligations set out in this Section 13 (Confidentiality) survive the termination or expiration of this Agreement.
The Company acknowledges and agrees that in the course of providing Services under this Agreement it may receive, use, access or have access to Personal Data. The Company agrees that such Personal Data is Confidential Information of Customer to which the provisions of Section 13 (Confidentiality) apply, except to the extent such provisions are inconsistent with this Section 14 (Privacy and Security) and/or Appendix 1 (Data Processing Addendum), which prevail with respect to Personal Data. In addition to the obligations in Section 13 (Confidentiality), and despite the disclosure provisions of Section 13.2, the Company will only access, share, transmit, disclose, collect, hold or store (even if only transitorily) such Personal Data in accordance with Appendix 1 (Data Processing Addendum) (including, in particular, in accordance with applicable Data Protection Laws).
The Company will maintain and enforce internal physical, administrative and technological security measures and back-up processes and procedures sufficient to ensure that the Company is protecting the Customer’s systems and information from any actual or suspected action attributable to the Company and/or its Personnel which adversely effects (or will give rise to an adverse effect) on Customer’s systems or the information residing on those systems, including the failure to follow appropriate security protocols (such as protection of passwords).
The Company agrees to indemnify, defend and hold harmless the Customer, its affiliates, its agents and their respective directors, trustees, officers, employees, agents, shareholders and those for whom at law each of them is responsible (collectively, the “Customer Indemnitees”) and keep them indemnified from and against any and all losses, claims, actions, suits, proceedings, damages, liabilities, fines, penalties or expenses of whatsoever nature or kind, including the aggregate amount paid in reasonable settlement of any claims, actions, suits, proceedings or investigations and the reasonable fees, disbursements and taxes of their counsel in connection with any claim, action, suit, proceeding or investigation that may be made or threatened against any Customer Indemnity or in enforcing this indemnity (each a “Claim” and, collectively, the “Claims”) to which a Customer Indemnity may become subject or otherwise involved in any capacity insofar as the Claims relate to, are caused by, result from, arise out of or are in connection with:
(a) negligent acts or omission of, or willful misconduct by, or breach of this Agreement by, the Company or any of its Personnel;
(b) damage to property, death or personal injury arising out of or in connection with any act or omission of, or breach of this Agreement by, the Company or any of its Personnel;
(c) a Personal Data Breach (including the cost of its investigation, mitigation and mitigation measures, curtailment, correspondence and engagement with impacted individuals and regulators and supervisory authorities);
(d) the loss, theft or corruption of data of the Customer and/or an affiliate arising out of or in connection with any breach of this Agreement or any defect or fault in the Services;
(e) the misappropriation or infringement of the intellectual property rights of the Customer and/or any of its affiliates by the Company, its affiliates or any of its Personnel; and/or
(f) the breach or failure to comply with its data protection and/or confidentiality obligations under this Agreement by the Company or any of its Personnel.
Subject to Section 15,
the Company shall not in any circumstances be liable to the Customer or any other person for any indirect or consequential loss such as (but not limited to) loss of profits, loss of market, loss of reputation, economic loss of any kind or any other kind of loss caused as a result of the Company performing its obligations to the Customer in accordance with this Agreement.
The Customer shall not in any circumstances be liable to the Company or any other person for any indirect or consequential loss such as (but not limited to) loss of profits, loss of market, loss of reputation, economic loss of any kind or any other kind of loss caused as a result of the Customer performing its obligations to the Company in accordance with this Agreement.
The Customer shall not
(a) Remove, damage, conceal or obliterate any Company branding or markings on the Equipment
(b) Overload or fill the Equipment beyond the capacity specified by the Company
(c) Set fire to the Contracted Waste or any waste material deposited in the Equipment
(d) Remove or relocate the Equipment from the premises and locations specified in the Application without the prior approval of the Company
(e) Lose possession of or sub-let the Equipment to any other Person.
The Customer shall be responsible for insurance of the premises in which the Equipment will be stored and will ensure that such policies of insurance are extended to cover the Equipment during the duration of the contract.
The Customer shall be responsible for maintaining the appropriate public liability insurance to cover the visits of the staff of the Company to deliver, inspect, remove, service or otherwise deal with the Equipment for the duration of the contract.
The Company will carry and maintain, at its expense, the following insurance coverages:
(a) Employer’s liability insurance in an amount not less than €13,000,000.00 for any one event including costs and expenses.
(b) Public/products liability insurance in an amount not less than €6,500,000.00 for each and every loss, subject to Products limited to an aggregate amount of €6,500,000.00..
(c) .Professional indemnity cover in an amount not less than €2,500,000.00 for each claim and €2,500,000.00 in the aggregate.
(d) Cyber liability insurance in an amount not less than €1,000,000.00 each claim and €1,000,000.00 in aggregate.
The liability policies affording the coverage described above and the property insurance described above will be subject to the reasonable approval of the Customer and will be endorsed to cover the Customer, its affiliates or any mortgagee/lender and their respective employees, agents, directors, trustees and officers as additional insureds. All liability policies will be written on an occurrence basis and will include sever-ability and cross liability clauses, and a contractual liability endorsement. Any deductibles under the policies referred to above are subject to the approval of the Customer acting reasonably.
The Company will deliver copies of its certificates of insurance to the Customer before commencing the Services and will deliver copies of insurance certificates in respect of the renewal of its insurance policies to the Customer, on the earlier of fifteen (15) days prior to expiration, or the date when the copies and certificates are available. The certificates of insurance will state that the issuing company will endeavor to mail thirty (30) days’ prior written notice to the certificate holder(s) should any of the policies be cancelled prior to the expiration date or in the event of a material change to any of the policies, but will not be responsible for any failure to do so.
The Company will be responsible for the measurement and recording of the amount of the Contracted Waste which is collected from the Customer together with the recording of the duration of all Destruction Visits and the dockets maintained by the Company shall be conclusive evidence of such collection and measurement and the duration thereof save in the case of manifest error.
This Agreement binds the heirs, executors, successors and assigns of the respective parties and cannot be changed orally. This Agreement may not be assigned by Customer (other than to an affiliate which shall assume the obligations of its assignor by written instrument) without the written consent of the Company, which shall not be unreasonably withheld or delayed.
DATA PROCESSING ADDENDUM (“the DPA”)
THIS AGREEMENT forms part of and is incorporated into the agreement between the Company and the Customer attached hereto (the Agreement”).
“Data Protection Laws”: means all applicable data protection and privacy laws and regulations that apply to the Personal Data or the processing of the Personal Data including European data protection laws.
“Personal Data”: Means all Personal Data (as defined in the General Data Protection Regulation) processed by the Company or its sub-processors pursuant to or in connection with this DPA and/or the Agreement.
“Personal Data Breach”: Means a breach leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of or access to Personal Data transmitted, stored or otherwise processed pursuant to this DPA and/or the Agreement