1.COLLECTION AND DISPOSAL SERVICES.
(a) Subject to the following conditions, NICHE ENVIRONMENTAL PTY LTD trading as Nitschke Liquid Waste (“the Contractor”) shall supply to the person, persons, company or corporation shown on the front of this agreement (“the Customer”) the goods, equipment or services (“the Services”) specified on the front of this agreement as consideration for the due and punctual payment by the Customer for the Services, rental and any additional charges set forth in this agreement (“the Fees”).
(b) The Customer shall ensure clear and easy access to the address specified on the front of this agreement (“the Service Address”) as required for the Contractor to perform the Services. If the Contractor is unable to access the Service Address, the Contractor shall be entitled to charge a fee in accordance with clause 2(f).
2. FEES
(a) The Customer must pay Fees within fourteen (14) days of the date upon which they are invoiced.
(b) The Customer must pay for any variations to the Fees that may result from circumstances including, but not limited to, any variation from the plan of scheduled works or specifications for the Services, any variation as a result of additional works required due to hidden or unforeseeable circumstances, additional costs (including fees and penalties) to the Contractor of disposing of any waste that has not been disposed of correctly by the Customer in accordance with the Contractors direction. The Customer will be charged for any such additional costs on the basis of the Contractor’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
(c) The Customer acknowledges that the Contractor may adjust the Fees twice per year (at maximum) to account for increases in CPI, market rate adjustments and third-party on costs such as disposal costs, fuel, water rates, EPA and other government charges associated with the provision of the Services, provided that the Contractor provides the Customer with a minimum of thirty (30) days prior written notice, except if the adjustment is in respect of EPA or other government charges in which case the Contractor must provide the Customer with a minimum of fourteen (14) days written notice.
(d) If the Customer requires the Contractor to provide services on a Saturday, Sunday or public holiday, or outside of the Customer’s scheduled collection day or time, the Customer must pay to the Contractor such additional charges as set out in the fee schedule (“the Fee Schedule”) posted on the Contractor’s website from time to time.
(e) The late payment fee (as a flat fee) set out in the Fee Schedule may be applied each month that the Customer’s account remains unpaid.
(f) The Customer must pay to the Contractor the full service charge or the futile charge set out in the Fee Schedule (whichever is the greater) for the Contractor attending the Customer’s site to collect waste, whether or not waste is collected, except where waste is not collected as a result of the Contractor’s negligent acts or omissions.
(g) Should the Contractor consider it necessary for it to incur debt collection fees, legal fees and/or other fees, costs or expenses to obtain, or attempt to obtain, payment of any amounts due by Customer, the Customer shall be liable for all such fees, costs and expenses on a fully indemnity basis.
3. GST.
If goods and services tax (within the meaning of A New Tax System (Goods and Services Tax) Act 1999 (Cth) (“GST”) is payable on any supply under this agreement, the Customer must pay the Contractor the amount of GST payable simultaneously with the payment of the Fees. The Fees are expressed exclusive of GST, unless expressly stated otherwise.
4. WASTE TITLE.
The Customer retains risk in and title over waste collected by the Contractor. The Customer must accept the return, at its own expense, of any waste for which the Customer has not paid for the Contractor’s services in respect of the removal of any such waste. The Customer agrees to indemnify and keep indemnified the Contractor in respect of all claims, damage, loss and liability arising from waste that does not comply with this Agreement.
5. RELOCATION OF BUSINESS.
(a) This agreement will continue in full force in the event of any relocation of the Customer’s site. In the event that the Customer’s site relocation results in increased cost or hardship to the Contractor, the Contractor may, at its election, terminate this agreement or charge additional fees in accordance with the Fee Schedule to reflect the change in the Contractor’s costs of performing the Services.
(b) In the event of any such changes to the Fees, if the Customer continues to accept the Services, it is deemed to have accepted the variation to the Fees.
6. TERM.
(a) This agreement is for an initial term of thirty six (36) months from the date it is accepted by the Contractor or the term specified and agreed by the parties in special instructions, as specified on the front of this agreement (“Initial Term”).
(b) At the end of the Initial Term, this agreement will automatically renew for a further term (and additional further terms thereafter) of thirty six (36) months (each a “Further Term”) provided the notice requirements under this clause 6 have been met. Either party may choose not to renew this agreement by giving the other written notice of cancellation at least thirty (30) days (but not more than sixty (60) days) prior to the end date of the current term.
(c) The Contractor will notify the Customer of upcoming automatic renewals at least sixty (60) days before the end of the Initial Term and each Further Term. The notice shall set out the Customer’s ability to elect not to renew for a Further Term and the steps to notify the Contractor of their choice not to renew as required under this clause 6.
7. TERMINATION.
(a) The Contractor may end this agreement by giving seven (7) days prior written notice to the Customer if at any time the Customer:
(i) fails to make paymentasrequired by thisagreement;
(ii) commits any other breach of this agreement that is incapable of being remedied; or
(iii) commits a breach of this agreement that is capable of being remedied, but the Customer fails to remedy the breach within seven (7) days of the Contractor notifying the Customer of any such breach.
(b) Either party may terminate this agreement for convenience by giving sixty (60) days prior written notice to the other party.
(c) Where:
(i) a notice of termination for convenience is given by the Customer in accordance with this clause, the Customer acknowledges that the Contractor may charge a termination fee in accordance with clause 7(e).
(ii) the Contractor terminates this agreement for convenience, the termination shall take effect sixty (60) days from the date the termination notice has been delivered and clause 7(e) will not apply.
(d) If this agreement is terminated under this clause 7, the Customer will be liable to pay for the Services rendered up to and including the date of termination.
(e) In the event of termination:
(i) by the Customer under clause 6(b); or
(ii) termination by the Contractor under clause 6(a) as a result of the Customer’s breach of this agreement; or
(iii) wrongful termination or repudiation of this agreement by the Customer,
The Contractor reserves the right to charge the Customer a termination fee to cover its genuine pre-estimate of loss, which will be equal to the greater of the termination fee set out in the Fee Schedule, or an amount calculated as follows:
A = B x C x 50% where:
A = The amount to be paid.
B = The number of months remaining of the current term of the agreement at the time of termination.
C = The average of the last three (3) months charges payable by the Customer at the time of termination or the monthly charge calculated by reference to the service frequency and capacity and all rates and charges as specified on the front of this agreement.
(f) The Customer acknowledges and agrees that the payment charged to the Customer under clause 7(e) (“the Termination Fee”) as a result of early termination is not a penalty, but is calculated as the Contractor’s genuine loss and is necessary to protect the legitimate commercial interests of the Contractor.
(g) Where Services are provided to the Customer on an ‘on call’ basis, then the Customer shall be liable for an amount equal to 50% of the average monthly Fees invoiced to the Customer over the previous 12 months, or an average of such shorter period as the agreement has been in place, multiplied by the months remaining on the agreement, from the date of default or termination until the end of the term of the Agreement.
(h) Nothing in this clause 7 prevents the Contractor from claiming damages against the Customer as a result of the Customer’s breach or repudiation of this agreement.
(i) For clarity, the Termination Fee will not apply where the Customer chooses not to renew the agreement for a Further Term in accordance with clause 6(b).
8. CHANGE IN CONTROL.
The Customer shall give the Contractor not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customers details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number, or business practice). The Customer shall be liable for any loss incurred by the Contractor as a result of the Customer’s failure to comply with this clause.
9. CONTRACTOR NOT LIABLE TO THE CUSTOMER.
Despite anything elsewhere in these conditions to the contrary whether expressed or implied, except to the extent any loss or damage is the result of the Contractor’s gross negligence, the Contractor shall not be liable to the Customer in any way whatsoever, should the Customer suffer any loss or damage of any kind (including death) arising out of the provision of the Services. Without limiting the generality of the foregoing, the Contractor shall not be liable in respect of any loss of business sustained by the Customer during the period that the Contractor is unable to perform collection and disposal services.
10. INDEMNITY.
The Customer is solely responsible for and fully indemnifies the contractor against any loss or damage arising under or in connection with: (a) breach by the Customer of: (i) any warranty or other term of this agreement; or (ii) any duty of care owed to the Contractor whilst at the Service Address shown on the front of this agreement; or (iii) any law or regulation committed, caused or contributed to by the Customer; (b) injury or death to persons, loss or damage to property or the environment caused by or in connection with use, storage or operation of the equipment by Customer; (c) damage to or loss of goods or equipment supplied under this agreement; or (d) the provision of the Services or the use or location of equipment supplied under this agreement. The Customer’s liability under this clause 10 is reduced to the extent that any loss or damage is caused or contributed to by the Contractor.
11. FORCE MAJEURE.
In the event of any acts of God, strike, lockout, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government imposed border lockdowns or industrial dispute, shortage of materials and climate conditions beyond the control of the Contractor and the Contractor is unable to properly use the equipment or perform its obligations under this agreement then this agreement may be suspended by the Contractor at its option for the duration of such event or events. In such circumstances, the Customer is precluded from making claims against the Contractor.
12. DEFAULT.
A party may terminate this agreement at any time with immediate effect by giving notice in writing to the other party (“the Defaulting Party”) if:
(a) the Defaulting Party commits a breach of this agreement that is capable of being remedied and fails to remedy the breach with fourteen (14) days of receiving written notice requiring it do so;
(b) the Defaulting Party commits a breach of this agreement that is incapable of being remedied; or
(c) the Defaulting Party dies, becomes insolvent or steps have been taken to make that party bankrupt.
13. DISPUTE RESOLUTION.
(a) Definitions
In this clause (c)3:
i) complainant means the person who starts the procedure under the next clause;
ii) parties means the complainant and the respondent in a dispute arising under this agreement; and
iii) respondent means the person with whom the complainant has a dispute.
(b) Procedure
i) The parties must follow the following procedure to try to resolve disputes under this agreement.
ii) The complainant must tell the respondent in writing:
A) the nature of the dispute; and
B) what outcome the complainant wants; and
C) what action the complainant thinks will settle the dispute.
iii) The parties must then try to agree about how to resolve the dispute.
iv) If the parties cannot agree under clause iii) within twenty-one (21) days, either party may refer the matter to a mediator.
v) If the parties cannot agree on a mediator, either party may ask the President of the Law Society of South Australia to appoint a mediator.
vi) The mediator may decide the time and place for mediation.
vii) The parties must attend the mediation and try to resolve the dispute.
viii) The role of a mediator is to assist in negotiating a resolution of the dispute.
ix) A mediator may not make a decision that is binding on the parties unless the parties agree in writing.
x) The parties are equally liable for the costs of mediation, unless they agree otherwise.
xi) The parties must pay for their own costs of attending the mediation.
(c) Without prejudice
i) All discussions for the purpose of mediation are without prejudice.
ii) No document brought into existence specifically for the purpose of mediation can be evidence in any subsequent litigation by a party.
(d) Litigation
This clause (c) does not affect the right of a party to seek injunctive relief where failure to obtain that relief would cause irreparable damage to that party.
14. NOTICE.
(a) Notice may be given to a person:
i) personally; or
ii) by leaving it at the person’s address; or
iii) by sending it by mail to the person’s address; or
iv) by email to the person’s email address last notified.
(b) Notice is deemed to have been received by the addressee:
i) when left at the addressee’s address;
ii) if sent by normal post, on the 7th Business Day after posting;
iii) if sent by registered post, on the 5th Business Day after posting;
iv) if sent by express post, on the 3rd Business Day after posting; and
v) if sent by email, at 9am on the next Business Day after it was sent, if the sender’s transmission report shows that the notice was sent to the person’s email address.
(c) For the purposes of this clause “Business Day” is defined as a day that is not a Saturday, Sunday or public holiday in the state of South Australia.
15. EXCLUSIVITY.
The Customer grants to the Contractor an exclusive right to collect and dispose of all of the Customer’s liquid waste materials in accordance with this agreement.
16. STATUTES.
In this agreement, a reference to any statute extends to any amendments, consolidation or replacement of it or any part of it.
17. ENTIRE AGREEMENT.
This agreement records the entire agreement between the parties in respect of the subject matter of this agreement. This agreement supersedes any prior agreements or undertakings between the parties in related to the subject matter of this agreement.
18. AMENDMENT.
This Agreement may be varied or updated in the following matter:
(a) In writing and signed evidencing the agreement of both parties; or
(b) Upon written notification by the Contractor to the Customer of the proposed variation or amendment, upon receipt of which the Customer has thirty (30) days to accept or reject the variation (“Consultation Period”), except where the amendment relates to a fee adjustment in accordance with clause 2(c) as a result of changes to EPA costs or other government charges, in which case the Consultation Period will be fou8rteen (14) days.
(c) Where the Customer rejects the variation, this Agreement will be terminated thirty (30) days from the date of rejection.
(d) Where the Customer accepts the variation, the variation will come into effect at the end of the Consultation Period.
(e) Where the Customer fails to respond or contact the Contractor during the Consultation Period, the Customer is deemed to have accepted the variation and the variation will take effect from the end of the Consultation Period.
19. COUNTERPARTS.
This agreement may be signed in any number of counterparts, including electronically. Each counterpart is deemed an original and all of which together constitute one agreement.
20. GOVERNING LAW.
This agreement is governed by the laws of South Australia. Each party submits to the non-exclusive jurisdiction of the courts of South Australia and any competent appellate courts. No party may object to the jurisdiction of any of those courts on the basis that it is an inconvenient forum or that it does not have jurisdiction.
21. SEVERANCE.
If part or all of any provision of this agreement is invalid, illegal or unenforceable, it shall be read down to the extent of any such invalidity, illegality or unenforceability. If it is incapable of being read down, it shall be severed and shall not affect the enforceability or validity of the remaining clauses of this agreement.
22. PRIVACY POLICY.
The Contractor agrees to comply with its Privacy Policy in respect of all personal information of the Customer, as defined by the Privacy Act 1988 (Cth). The Contractor’s privacy policy is available on the Contractor’s website, available here, or on request by the Customer.
