LANTRAK PTY LTD (ABN )

Transcription

1 LANTRAK PTY LTD (ABN ) 1. Interpretation and construction of the Agreement: Definitions In the Agreement, except where the context otherwise requires: Accepted Waste Agreement Allowable Waste means waste which Lantrak is licenced to receive at the Waste and Storage Facility as allowable waste under licence, pursuant to The Sustainable Planning Act 2009 (and successive and complimentary legislation), the Waste Reduction and Recycling Regulation 2011, all relevant Environmental Legislative Requirements, Permits and Regulations and in accordance with Clause 3 of the Agreement as material exclusively defined as Construction and Demolition Waste. means the formal Instrument of Agreement to which these terms and conditions of agreement are attached means waste defined as Construction and Demolition Waste which Lantrak is licenced to receive at the Waste and Storage facility and is strictly limited to the following categories and subject to Lantrak s direction: a) Concrete b) Rock c) Brick d) Masonry e) Ceramics f) Timber (uncontaminated) g) Metals (ferrous and no ferrous) h) Plastics i) Glass j) Paper and Cardboard k) Plasterboard, and l) Earth, soil and dirt (uncontaminated only) Claim means any claim whatsoever including claims: a) under, arising out of, or in connection with the Agreement b) arising out of, or in connection with Lantrak s provision of services c) arising out of or in connection to with any relevant parties conduct before the Agreement d) at law or in equity e) by statute f) in tort for negligence or otherwise, including negligent misrepresentation; or for restitution, including restitution on unjust enrichment; CPI means the All Groups Consumer Price Index for the City of Brisbane as published by the Australian Bureau of Statistics or any other recognised means of indexing inflation.

2 Customer Customer s Waste Delivery Documents DERM Direction Environmental Law Excluded Waste means any person, their agents, employees, contractors, nominees or representatives who either engage Lantrak to perform Services in accordance with the Agreement or utilize Lantrak s services pursuant to the Agreement. means all waste deposited at the Waste and Storage Facility including that defined under license and nominated in the Agreement as Accepted Waste, Trackable Waste, Excluded and Prohibited Waste, Contaminated waste or any other waste material, product or thing; means that In accordance with that required by but not limited to all relevant Legislative Requirements, the Registration Certificate, any EPA permits or development approvals, documents and records whether in written or electronic form which Lantrak direct the Customer or the Transporter acting in the capacity as the Customer s agent to complete prior any disposal or storage of material. means the Department of Environment and Resource Management; includes agreement, approval, assessment, authorization, delivery document, decision, demand, determination, explanation, instruction, notice, order, permission, rejection, request or requirement; means the Environmental Protection Act 1994 and its successors, all complimentary and supportive regulations, rules, policies, orders, standards and guidelines; means prohibited waste which Lantrak is not licenced to receive at the Waste Storage Facility pursuant to the Registration Certificate and that material precluded from disposal by legislative requirement including any waste material that was generated in a fire ant zone or that which may be affected by fire ants or which is otherwise excluded by Lantrak including but not limited to: a) Asbestos b) Tyres c) Food d) Oil and Hydrocarbons e) Paint f) Chemicals g) Medical Waste h) Batteries; and i) That classified as Contaminated; Force Majeure means any event outside the reasonable control of the party affected by it, which could not have been avoided by that party exercising reasonable care. It includes, without limitation, an act of God, war declared or undeclared, civil disturbance, act or omission of government or other competent authority, fire, lightning, explosion or flood; Lantrak means LANTRAK WASTE (CABOOLTURE) PTY LTD (ABN )

3 Loss means Prescribed Information Legislative Requirement any loss, damage, cost, interest, expense, fee, penalty, fine, forfeiture, assessment, demand, action, suit, claim, proceeding, cause of action, liability or damages, and includes without limitation: means the information required to be supplied by the waste generator or their agents in accordance with the provisions of Schedule 2 of the Environmental Protection (Waste Management) Regulation 2000 allow Lantrak and necessary parties to Track Waste accordingly; includes; a) Acts, Ordinances, regulations, by laws, orders, awards and proclamations of the jurisdiction where services per this agreement have been secured b) Approvals c) applicable Standards issued by standards Australia d) requirements of any government or other statutory authority having jurisdiction over the Waste Storage facility PPSA Legislation Registration Certificate Services Site Procedures and Conditions Of Entry: Storage Facility Tax Trackable Waste Transporter means means the Personal Property Securities Act 2009 and subordinate legislation thereto; means any registration certificate including that which may be amended from time to time awarded to Lantrak pursuant to Legislative Requirements authorising Lantrak to undertake specific services and works at the Waste Storage Facility; means Lantrak accepting for disposal that deemed Accepted Waste in accordance with the scope of the Agreement; means the form that all those making deliveries to the waste Storage Facility must sign and complete to acknowledge that they understand Fundamental site requirements. means the premises nominated by Lantrak at which Lantrak is licenced to receive Accepted Waste for disposal or storage pursuant to this Agreement particular to Strathvale Court Queensland 4510; includes but is not limited to the GST, and any other necessary duties, levies and charges; means regulated waste of a type detailed in Schedule 1 of the Environmental Protection (Waste Management) Regulation 2000; and any person that the Customer or their agents, representatives or nominees engage to transport waste to the Storage Facility.

4 2. AGREEMENT FOR PROVISION OF SERVICES The Customer or the Transporter acting in the capacity as the Customer s agent will have access to the Waste Storage Facility pursuant t the terms of the Agreement and under Lantrak s direction and discretion. Services will be performed, on the days, and during the hours of operation as proclaimed by Lantrak at the Waste Storage Facility or as otherwise specified in Schedule 1 of the Agreement. Lantrak reserves the right to vary the hours of operation of the Storage Facility without notice, and vet access to the Waste Storage facility per se; 3. INSPECTION AND ACCEPTANCE 3.1 Lantrak may accept or reject waste material at its complete discretion. 3.2 Lantrak will not accept: Excluded Waste including but not limited to; a) Asbestos b) Tyres c) Food d) Oil and Hydrocarbons e) Paint f) Chemicals g) Medical Waste h) Batteries; and i) That classified as Contaminated; Trackable Waste for which the Prescribed Information is not or cannot be provide to Lantrak by the either the Generator of Waste, The Customer or Transporter. 3.3 Lantrak will not accept any waste materials not delivered in accordance with the Agreement and reserves the right prior to accepting any materials to test, inspect, sample and analyse such in order to ascertain compliance with the Agreement. 3.4 Lantrak at their discretion may revoke acceptance of any waste materials for reasons including but not limited to that which may: comprise or include Excluded Waste; comprise or include Trackable Waste for which the necessary Prescribed Information has not been provided to Lantrak; not conform with the requirements of the Agreement; or breach Legislative Requirements. 4. CUSTOMER OBLIGATIONS 4.1 The Customer must:

5 4.1.1 ensure that the Transporter as the Customer s agent completes the Delivery Documents and undertakes any necessary induction or registration process required by Lantrak particular to the Waste and Storage facility; provide Lantrak or the Transporter in its capacity as the Customer s Agent with the Prescribed Information and Documentation per Legislative requirements for all Trackable Waste. 4.2 The Customer must ensure and procure that its Servants, Agents, Nominees and Contractors along with the Transporter acting in the capacity as the Customer s agent strictly adhere to the direction of the authorised representatives of Lantrak when unloading Accepted Waste within the Waste Storage facility. 4.3 The Customer must ensure that it s Servants, Agents, Nominees and Contractors along with the Transporter acting in the Capacity as the Customer s Agent adopt safe systems of work when operating within the Waste Storage Facility and comply with all Legislative Requirements particular to Occupational Health and Safety. 4.4 The Customer must ensure and must procure that any vehicles, plant and other equipment that the Customer has facilitated or supplied for works within the Waste Storage Facility are suitably maintained, serviced and registered as per Legislative Requirements as well as ensure that every person who may drive or operate said vehicles, plant or other equipment is suitably qualified to undertake the works program intended and holds the required authority to do so accordingly. 4.5 Insofar as compliance with requirements of the agreement, the Customer and Transporter acting in the capacity the Customer s agent shall: a) take necessary measures to protect people and property; b) avoid unnecessary interference interference with the passage of People and vehicle; and c) prevent nuisance and unreasonable noise and disturbance. If The Customer or Transporter acting in the capacity as the Customer s Agent damage property particular to the Waste Storage Facility the Customer shall promptly rectify the damage and pay any compensation which The Law requires the Customer to pay. If urgent action is necessary to protect either the Waste Storage facility, other property or people and the Customer or the Transporter acting in the capacity as the Customer s Agent fails to take action in addition to any other remedies available Lantrak reserves the right to take the necessary action. If t the action was that which the Customer or Transporter acting in the capacity as the Customer s Agent should have taken at their cost Lantrak shall certify the cost incurred as monies due from the Customer to Lantak. If time permits Lantrak shall give the Customer or Transporter acting in the Capacity as the Customer s Agent written notice of the intention to take action pursuant to this clause. 4.6 The Customer acknowledges that signature and completion of the Site Procedures and Conditions of entry form may be a prerequisite for any on site disposal.

6 5. PPSA LEGISLATION Notwithstanding the requirements of the Agreement and particular to on site works only the following shall apply on and from the date that PPSA legislation comes into effect: a) The Customer, their servants, agents,nominees or contractors must not I. create any security interest or lien over any of Lantrak s Personal Property; Ii. sell dispose or otherwise deal with its Security Interest in Lantrak s Personal Property Iii. co mingle or allow to be co mingled personal property belonging to the Customer or third parties with any of Lantrak s Personal Property except where the asset created is incorporated into a works program; b) The Customer at its own expense do everything that Lantrak requires which is reasonably necessary to enable Lantrak to perfect, register or make enforceable any security interest Created under or in connection with the Agreement. 6. WARRANTIES AND TITLE 6.1 The Customer and the Transporter acting in the capacity as the Customer s Agent warrants the following in relation to the waste material delivered to Lantrak at the Waste Storage Facility: the waste materials consist entirely of Accepted Waste, unless otherwise specified and have the components and characteristics matching the description notified by the Customer or Transporter acting in the capacity as the Customers agent to Lantrak in the Delivery Documents, understanding that Accepted Waste is considered: a) Concrete b) Rock c) Brick d) Ceramics e) Timber (uncontaminated) f) Metals (ferrous and no ferrous) g) Plastics h) Glass i) Paper and Cardboard j) Plasterboard, and k) Earth, soil and dirt (uncontaminated only); the waste materials do not contain Excluded Waste; the Customer has unencumbered title to the waste material; and the Customer has made due and careful enquiry particular to the waste materials (including the source and components and characteristics of the same) and has provided the warranties and assumed the obligations set out in the Agreement on an informed basis. 6.2 The Customer warrants that it holds and maintains and will procure that the Transporter holds and maintains the Policies mentioned in clause 10: Insurances.

7 6.3 The Customer warrants that it will procure the Transporter to comply or otherwise act in accordance with the Agreement, Environmental Law and any other law applicable. 6.4 Subject to compliance with the Agreement by the Customer or the Transporter, title to all Accepted Waste vests in Lantrak upon acceptance by Lantrak at the Storage Facility and unloading in accordance with clause 3: Inspection and Acceptance. 6.5 Title to and liability for all Excluded Waste, Trackable Waste for which Lantrak has not received the Prescribed Information and waste material that does not comply with the description notified in the Delivery Documents, remains with the Customer unless Lantrak notifies to the Customer otherwise, in which case title vests in Lantrak however liability remains with the Customer. 6.6 The Customer is responsible for the costs of excavation, transport, permits and removal of Excluded Waste deposited at the Storage Facility and any rectification or remediation works at the Waste Storage Facility and the Customer will accept return (at the Customer s expense) of the Excluded Waste at any premises owned or occupied by the Customer or a suitably determined Waste facility. 6.7 If Lantrak has not received the Prescribed Information for Trackable Waste deposited at the Waste Storage Facility or waste material deposited at the Waste Storage Facility does not comply with the description detailed in the Delivery Documents, Lantrak may, at its complete discretion, require the Customer to pay Lantrak for its costs or other applicable fees in relation to the excavation, transport and removal of the waste material from the Waste Storage Facility or any rectification works at the Waste Storage Facility. The Customer will accept return (at the Customer s expense) of these waste materials at any premises owned or occupied by the Customer. 6.8 Lantrak warrants that; (a) It is empowered to enter into this Agreement and to do all things required by this Agreement; (b) All things have been done, or will be done, as are necessary to make this Agreement legally enforceable according to its terms and binding on the Customer, its servants, agents, nominees or contractors ; (c) There is no litigation, arbitration or administrative proceeding taking place, pending or, to its knowledge, threatened against it which could have an adverse effect on the ability of the Customer or Lantrak to perform under this Agreement; and. (d) The Customer will as soon as practicable notify Lantrak of the occurrence of, or pending or threatened occurrence of, any event that may cause the Customer to breach any acknowledgment, representation, warranty or covenant in this Agreement, or of any event that could have an adverse effect on its ability to perform in accordance with this Agreement.

8 7. INDEMNITY (a) The Customer releases, and agrees to indemnify and hold harmless Lantrak and its Representatives from all Loss which Lantrak or its Representatives may suffer or incur, and which arise out of or is in any way connected with the breach by The Customer, its Servants, Agents, Nominees or of any of its obligations under this Agreement or any law or the negligent or wilful act, nuisance trespass, breach of statutory duties or omission by The Customer or any of its Representatives or the Transporter acting in the capacity as The Customers agent; (b) The Customer s indemnity in this clause does not extend to Loss to the extent that the Loss was caused as a result of a negligent or wilful act or omission by Lantrak or any of its Representatives; and (c) Lantrak holds the benefit of the indemnity in clause 7 (a) for itself and on trust for its Representatives, jointly and severally, and may enforce the indemnity on its own behalf and on behalf of any one or more of its Representatives. 7.1 The Customer must indemnify and keep indemnified Lantrak and its servants, agents and contractors from and against all Claims arising out of: Violation of any law or regulation committed, caused or contributed to by the Customer or the Transporter including all penalties imposed on Lantrak by the DERM or any other responsible authority or the courts in relation to, or in connection with, any breach of the Legislative Requirements; and injury or death to persons, loss or damage to property or contamination of or adverse effect upon the environment or the Storage Facility caused by or in connection with delivery or unloading of the Customer s Waste at the Storage Facility by the Customer or the Transporter acting in the capacity as The Customers Agent. 8. EXCLUSIONS AND LIMITATION Conditions and Warranties required to be Binding (a) The only conditions and warranties which are implied by law and which are binding on Lantrak in respect of the state, quality or condition of the Services provided by it are those imposed by statute (including the Trade Practices Act 1974 (Cth) and which cannot lawfully be excluded; and (b) Except as provided in clause 8 (a), all conditions and warranties implied by law in respect of the state, quality or condition of the Services which may, but for this clause 8 (b), be binding on Lantrak are excluded. 9. LIMITATION ON LIABILTY 9.1 To the extent permitted by law, any term, condition or warranty in respect of the Services, whether implied by statute, trade usage, common law, custom or otherwise, is excluded.

9 9.2 Except to the extent set out in clause 9.3 nothing in the Agreement excludes, restricts or modifies application of the statutory conditions and warranties under the Competition and Consumer Act 2010 or other non excludable conditions or warranties. 9.3 The liability of Lantrak in relation to provision or performance of the Services is limited to supplying the Services again or paying of the cost of having the Services supplied again. 9.4 To the extent permitted in Law, the Customer may not make any Claim under this Agreement unless details of the Claim have been notified to Lantrak within the times specified in this Agreement, or if no time is specified, within 2 months from the date the Services have been completed. 9.5 To the extent permitted by law, the Customer releases Lantrak and its servants, Agents, nominees and contractors from all Claims (including with respect to injury or death to persons or loss or damage to property) arising out of the: presence of the Customer or the Transporter at the Waste Storage Facility; or use by the Customer or the Transporter of the Waste Storage Facility. 9.6 The Customer acknowledges and agrees that Lantrak will not be liable for any: direct or indirect or consequential losses or expenses suffered by the Customer or the Transporter including loss of profits or any liability to a third party; or loss or damage suffered by the Customer or the Transporter where Lantrak terminates or suspends the Services in accordance with the Agreement. 10. INSURANCE 10.1 The Customer undertake to effect and maintain with an insurer a; a public liability insurance policy for not less than $20 million (or any greater amount required reasonably required by Lantrak) in respect of any single claim arising out of the activities of the Customer, covering all third party claims arising out of: (a) loss, including financial loss, destruction or damage to real or personal property and ensuing loss of use of that property; and (b) death, injury to, or disease of persons; an employers liability and workers compensation policy which covers any damage, loss or liability suffered or incurred by any person engaged by the Customer arising: (a) by virtue of any statute relating to workers or accident compensation or employers liability; or (b) at common law; and a comprehensive vehicle and plant insurance policy for all vehicles, plant and other equipment that the Customer brings onto the Storage Facility.

10 10.3 Lantrak reserves the right to request certificate of currency for required insurances and withhold services if the insurances as detailed in Clause 10 are deemed insufficient and further to this right Lantrak reserves the right to request any necessary amendments to the insurance cover to the extent that the cover is not considered sufficient for an organisation engaging in activities of the kind referred to and permitted by the Agreement The Customer must promptly notify Lantrak if: an event occurs which may give rise to a claim under or prejudice the Policy; or the Policy is cancelled. 11. PRICE AND PRICE VARIATION 11.1 The Customer must pay: the fees specified in the Agreement per Schedule 1 or as notified by Lantrak from time to time, as varied in accordance with the Agreement, for the Services; and any necessary disposal levy, charge, tax or other impost with respect to the disposal of Accepted Waste All amounts payable by the Customer to Lantrak under the Agreement are exclusive of any GST. The Customer must pay any GST which Lantrak is liable to remit in addition to the fees and other amounts payable under the Agreement Lantrak reserves the right and may exercise this right to increase the prices specified in the Agreement immediately upon a change in its costs of providing or performing the Services (including as a result but not restricted to increased Taxes, fuel costs, contractor, labour or other operational costs), or in response to increases in the CPI, or for any other reason. 12. SERVICE VARIATION 12.1 If there is any change in the Services, or the manner in which they are required to be performed (including by reason of a change in Legislative Requirements then Lantrak may increase the prices specified in the Agreement immediately by giving written notice to the Customer If the Customer requires the Services to be performed during hours or on days other than those referred to in clause 2 or on public holidays, then Lantrak may increase the prices specified in the Agreement The customer acknowledges that access to the Waste Disposal Facility may be adversely affect by actions Force Majeure, particularly that of inclement weather. The customer indemnifies Lantrak for any loss particular to matters Force Majeure and closer due to inclement weather, or any other matter related to the actions of a third party which result in closer or limited access to the facility. 13. PAYMENT AND INVOICING

11 14. DEFAULT 13.1 If a credit account is extended by Lantrak to the Customer, then payment for the Services must be made by the Customer to Lantrak in accordance with the terms of Lantrak's invoice or otherwise, within 30 days of the date of Lantrak's invoice If credit is not extended by Lantrak to the Customer, then the Customer must prepay for the Services before entering the Storage Facility Payment terms may be revoked or amended immediately at Lantrak's sole discretion upon giving the Customer written notice All payments from the Customer to Lantrak must be made without any deduction or set off If the Customer is not satisfied with any aspect of Lantrak s invoice, it must notify Lantrak in writing within 7 days of the date of Lantrak s invoice. If the Customer does not provide notice in accordance with this clause 13.5, it is deemed to have accepted the invoice If the Customer fails to pay an amount to Lantrak prior to the due date or the Customer is otherwise in breach of the Agreement (including as a result of any acts or omissions of the Transporter), Lantrak may: immediately suspend the provision of the Services or terminate the Agreement on delivery of written notice to the Customer and recover any moneys owing to it by the Customer; charge the Customer for all legal costs incurred by Lantrak on a solicitor/own client basis; charge the Customer interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates Act 1983 (Vic) plus 4% for the period from the due date until the date of payment in full; and cease or suspend provision of any further Services prior (and without prejudice) to its rights of termination Clause may also be relied upon, at the option of Lantrak if the Customer becomes bankrupt or enters into any scheme of arrangement or any assignment or composition with or for the benefit of its creditors or any class of its creditors generally, or has a liquidator, provisional liquidator, administrator, receiver or receiver and manager appointed, or any action is taken for, or with the view to, the liquidation (including provisional liquidation), winding up or dissolution without winding up of the Customer If Lantrak terminates the Agreement or if the Customer does not pay Lantrak s Invoices when due: 15 MISCELLANEOUS

12 15.1 The Customer must not assign any of its rights or obligations under the Agreement without Lantrak s approval If Lantrak is unable to provide the Services due to circumstances beyond its reasonable control (including condition changes to the Registration Certificate, Environmental Law or any other laws) then Lantrak may suspend or terminate that portion of the Services by written notice to the Customer. Time is not of the essence in relation to performance or provision of the Services Subject to Lantrak s approval performance of all or part of the Services may be subcontracted. Any subcontractor is entitled to the benefit of the Agreement The Agreement and the fees notified under Clause 11 and specified in Schedule 1 constitute the whole agreement between the parties, and supersede all prior representations, warranties, arrangements, understandings and agreements between the parties, relating to the subject matter of the Agreement. SCHEWULE 1 Fees and Hours of Operation Refer to site office for current fees and hours of operation. Fees are subject to change without prior notice.