WASTE MATCH STANDARD SUBSCRIPTION TERMS
1. Interpretation
The definitions and rules of interpretation in this clause 1 apply in this agreement:
Administrator: an Authorised User who is designated as an Administrator when a Client User Account is established..
Authorised Users: those officers, employees, agents and contractors of the Customer who are authorised by the Customer to use the Services on its behalf.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Client User Account: an account which allows its Authorised Users to access the Services to acquire, dispose of, buy or sell goods.
Customer: a user of the Services with a Client User Account or General User Account.
Customer Data: any data uploaded by the Customer to the Website in order to access or use the Services.
Effective Date: the date on which Waste Match activates the Client User Account or provides a General User Account holder with access to the Services.
General User Account: an account to access the Services to buy publicly listed goods only.
Normal Business Hours: 8.00 am to 5.00 pm UK time, each Business Day.
Services: the subscription services provided by Waste Match to the Customer under this agreement via the portal accessed by the Customer at http://www.wastematch.co.uk (or any other website notified to the Customer by Waste Match from time to time) including the Website where the context admits.
Virus: any thing or device (including any software, firmware, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Waste Match: is a trading name of Mitie Waste and Environmental Services Limited (company registration number 08457483)
Website: means http://www.wastematch.co.uk.
1.1 In this agreement:
a. Clause headings shall not affect the interpretation of this agreement;
b. References to a person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns;
c. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established;
d. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular;
e. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders;
f. A reference to a statute or statutory provision is a reference to it as it is currently in force;
g. A reference to a statute or statutory provision shall include all subordinate legislation made under it and currently in force;
h. A reference to writing or written does not include fax or e-mail;
i. References to clauses are to the clauses of this agreement; and
j. Any words following the terms "including", "include", "in particular", "for example" or any other similar expression are illustrative only and do not limit the sense of the words, description, definition, phrase or terms preceding those terms.
2. INFORMATION ABOUT WASTE MATCH
2.1 Waste Match provides a marketplace that allows Authorised Users to access the Services for the purposes of re-using, acquiring, disposing of, buying or selling goods. Authorised Users of Client User Accounts will be able to list items:
a. for internal re-use by their own organisation;
b. for internal re-use by their own organisation, or disposal or sale to other organisations with Client User Accounts with which they are connected; or
c. for sale or disposal to all Customers.
A Customer with a General User Account will only be able to view goods listed for sale or disposal to all Customers by an Authorised User of a Client User Account.
2.2 Waste Match may not have possession of anything listed, disposed of or sold through the Services and, subject to clause 2.4, is not involved in the actual transaction or transfer of goods between Customers. Any contract for sale or disposal is directly between the Customers and the terms of such contract shall be agreed between the Customers. Waste Match provides a messaging service to facilitate agreement of terms and to allow a record to be kept of the terms agreed, however Waste Match is not responsible for the agreement of the contract terms or for the fulfilment of the contract by either party. Customers are both required to comply with clause 5 if buying and selling via the Services.
2.3 Waste Match may provide guidance on pricing, postage and listing via the Services, but such guidance is solely for information and the Customer may decide to follow it or not. Waste Match does not review Customers' listings or content. Waste Match has no control over and does not guarantee the existence, quality, safety or legality of goods advertised; the truth or accuracy of users' content, listings or feedback; the ability of Customers to sell or dispose of goods; the ability of Customers to pay for goods, or that Customers will actually complete a transaction, transfer or return goods.
2.4 The Administrator of a Client User Account is able to administer the Authorised Users associated with a Client User Account and their privileges, edit, remove, and administer all goods listed by Authorised Users of that Client User Account and request and accept connections with other Client User Accounts.
3. Use of the Services
3.1 Waste Match hereby grants to the Customer a non-exclusive, non-transferable licence for its Authorised Users to use the Services, solely for the Customer's internal business operations and subject to the terms of this agreement.
3.2 Waste Match shall use all reasonable endeavours to provide the Services to the Customer during Normal Business Hours, however the Customer acknowledges that due to the nature of the internet the Services shall not be uninterrupted or error-free. Waste Match shall use all reasonable endeavours to ensure that planned outages of the Services occur outside of Normal Business Hours.
3.3 The Services are provided “as is” and all warranties and representations not explicitly included in this agreement are excluded to the fullest extent permitted by law.
3.4 Notwithstanding clause 3.1 and without prejudice to its other rights and remedies, Waste Match may limit, suspend or terminate the Customer’s access to and use of the Services if Waste Match reasonably considers that:
a. The Customer or its Authorised Users are creating problems or possible legal liabilities for Waste Match;
b. Such restrictions will improve the security of the Services or reduce another user's or Waste Match’s exposure to financial liabilities;
c. The Customer or its Authorised Users are infringing the rights of third parties;
d. The Customer or its Authorised Users are acting inconsistently with this agreement; or
e. It is unable to verify or authenticate any information the Customer has provided to it, despite having exercised reasonable endeavours to do so.
3.5 The Customer acknowledges that it enters into transactions or transfers of goods with such other users at the Customer’s sole discretion and risk.
3.6 The Customer undertakes that:
a. each Authorised User shall keep their password for use of the Services secure and confidential, and shall change such password as frequently as Waste Match may specify from time;
b. it shall confirm the identities of the current Authorised Users to Waste Match within 10 Business Days of Waste Match's written request at any time; and
c. if any password for the use of the Services has been provided to any individual who is not an Authorised User, then without prejudice to Waste Match's other rights, the Customer shall promptly notify Waste Match;
d. it shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify Waste Match.
3.7 The Customer shall not use the Services to access, upload, store, distribute, transmit, display or download any Viruses or any material that Waste Match considers to be:
a. Unlawful;
b. Harmful;
c. Threatening;
d. Defamatory;
e. Obscene;
f. Infringing third party rights;
g. Offensive;
h. Facilitating illegal activity;
i. Pornographic
j. Promoting unlawful violence;
k. Discriminatory based on race, gender, colour, religious belief, sexual orientation, disability or any other characteristic;
l. Inciting damage or injury to any person or property; or
m. Damaging to Waste Match’s reputation;
3.8 The Customer shall not attempt to:
a. copy, modify, duplicate, create derivative works from, frame, scrape, mirror, republish, download, display, transmit, or distribute all or any portion of the Services in any form or media or by any means;
b. reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services;
c. access all or any part of the Services in order to build a product or service which competes with the Services;
d. use the Services to provide services to third parties or commercially exploit the Services;
e. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise make the Services available to any third party;
f. obtain, or assist third parties in obtaining, access to the Services other than in accordance with this agreement;
g. use any robot, spider, scraper or other automated means to access our Services for any purpose;
h. interfere with the working of our Services or circumvent any technical measures we use to provide the Services
i. harvest or otherwise collect information about users, such as email addresses, without their consent; or
j. use the contact information of other users for any purpose other than in relation to a specific transaction.
3.9 The Customer shall:
a. provide Waste Match with all reasonable co-operation in relation to this agreement and all reasonable access to such information as may be required by Waste Match in order to provide the Services, including but not limited to Customer Data;
b. comply with all applicable laws and regulations with respect to its activities under or in connection with this agreement and the Services;
c. carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner;
d. ensure that the Authorised Users use the Services in accordance with the terms and conditions of this agreement and be responsible for any Authorised User's breach of this agreement as a primary obligation;
e. ensure that its network and systems comply with any relevant specifications provided by Waste Match from time to time; and
f. be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Waste Match's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.
3.10 Notwithstanding clause 3.1 and without prejudice to its other rights, Waste Match may temporarily or permanently limit or disable the Customer's access to and use of the Services if the Customer breaches any of clauses 3.6, 3.7, 3.8 or 3.9.
3.11 Waste Match may update the Services and the Website from time to time and change any of the content or functionality. We are under no obligation to update the Website and we do not guarantee that the Website, or any content on it, will be free from errors or omissions. We do not guarantee that the Services will be secure or free from Viruses.
3.12 Subject to clause 8.3, Waste Match shall have no liability or obligation whatsoever (whether in contract, tort, negligence, statutory duty or otherwise and whether direct or indirect) in connection with content uploaded to the Services by the Customer (including Customer Data) or by any other user of the Services, or in relation to any transactions entered into by the Customer with other users.
3.13 Waste Match owns (or is licensed to use) all right, title and interest in the Services, including all intellectual property rights in the Services and all Website content. You must not copy, reproduce, alter, modify or create derivative works from the Services.
4. CLIENT USER ACCOUNTS AND AUTHORISED USERS
4.1 Waste Match will allow a Client User Account holder to have as many Authorised Users and Administrators as required to facilitate their use of the Services, which can be administered by any Administrator of the Client User Account.
4.2 Subject to clause 4.3, the Customer may from time to time apply to Waste Match for a General User Account to be upgraded to a Client User Account. Waste Match shall evaluate each application and respond to the Customer with approval or rejection of the request in Waste Match’s sole discretion.
5. Buying and Selling OR TRANSFERRING GOODS
5.1 If the Customer is looking to sell or dispose of goods it shall:
a. not post, list or upload content or goods in inappropriate categories;
b. not breach or circumvent any laws, third party rights or Waste Match’s systems or policies;
c. not sell or dispose of any counterfeit goods or otherwise infringe the copyright, trademark or other rights of third parties;
d. not fail to deliver goods sold or disposed of by the Customer;
e. not manipulate the price of any goods or interfere with any other user's listings;
f. not distribute or post spam, unsolicited or bulk electronic communications, chain letters, or pyramid schemes;
g. be responsible for the accuracy, content and legality of the goods listed.
5.2 If the Customer is looking to buy or acquire goods it shall:
5.3 Waste Match provides no guarantee that goods listed for sale will be purchased or that buyers searching for goods will be able to find suitable goods to purchase.
5.4 When Customers communicate through the messaging service provided by Waste Match, Waste Match accepts no liability for the content of any communications. Customers must respond promptly and accurately to any communications, be friendly and professional and comply with all provisions of this agreement.
6. Customer data
6.1 The Customer warrants that it holds such right, title and interest in and to all of the Customer Data as may be required for the Customer and Waste Match to use the Customer Data in accordance with the terms of this agreement.
6.2 The Customer hereby grants to Waste Match a perpetual, world-wide, non-exclusive, sub-licensable (to whatever tier), royalty-free, fully-paid-up licence to copy, reproduce, use, distribute, transmit, display and perform the Customer Data in order to provide the Services and in each case for the purposes for which the Customer Data was uploaded to the Services.
7. Personal Data and Data Protection
7.1 Waste Match uses personal data in accordance with its Privacy Policy available at http://wastematch.co.uk/account/privacy-policy. Waste Match uses cookies in accordance with its Cookies Policy which is available at http://wastematch.co.uk/account/cookies. For the avoidance of doubt, neither the Privacy Policy nor the Cookies Policy forms part of this agreement. Waste Match may notify the Customer from time to time of different website addresses at which the Privacy Policy and Cookies Policy may be found and may change the Privacy Policy and/or Cookies Policy at any time. If significant changes are made, Waste Match will use reasonable endeavours to notify Customers by email that a policy has been changed.
8.Limitation of liability
8.1 Subject to clauses 8.2 and 8.3:
a. Waste Match's total aggregate liability in contract or tort (including negligence or breach of statutory duty) misrepresentation, restitution or otherwise, arising in connection with the performance of the Services or this agreement (other than in relation to Waste Match's liability for the sale of goods where Waste Match is acting as the seller, in which case b shall apply) shall be limited to the sum of £1,000.
8.2 Subject to clause 8.3, Waste Match will have no liability to the Customer (in contract or tort (including negligence or breach of statutory duty) misrepresentation, restitution or otherwise, arising in connection for the performance of the Services or this agreement) for any:
a. loss of profit (whether direct, indirect or consequential);
b. loss of revenue, loss of production or loss of business (in each case whether direct, indirect or consequential);
c. loss of goodwill, loss of reputation or loss of opportunity (in each case whether direct, indirect or consequential);
d. loss of anticipated savings or loss of margin (in each case whether direct, indirect or consequential);
e. loss of bargain (whether direct, indirect or consequential);
f. liability of the Customer to third parties (whether direct, indirect or consequential);
g. loss of use or value of any data or software (whether direct, indirect or consequential);
h. wasted management, operational or other time (whether direct, indirect or consequential);
i. loss or damage arising out of any failure by the Customer to keep full and up to date security copies of any computer program and data held or used by or on behalf of the Customer (whether direct, indirect or consequential); or
j. indirect, consequential or special loss.
8.3 Nothing in this agreement will operate to exclude or restrict one party’s liability (if any) to the other:
a. for death or personal injury resulting from its negligence or the negligence of a person for whom it is vicariously liable (negligence being as defined in Section 1(1) Unfair Contract Terms Act 1977);
b. for its fraud or fraudulent misrepresentation or fraud or fraudulent misrepresentation by a person for whom it is vicariously liable;
c. for breach of its obligations arising under section 12 Sale of Goods Act 1979;
d. for breach of its obligations arising under Section 2 Supply of Goods and Services Act 1982;
e. for breach of its obligations arising under Section 8 Supply of Goods (Implied Terms) Act 1973;
f. arising under Section 2(3) Consumer Protection Act 1987; or
g. for any matter for which it is not permitted by law to exclude or limit, or to attempt to exclude or limit, its liability.
8.4 The exclusions from and limitations of liability contained in this agreement will apply after as well as before termination of this agreement. Any event which occurs after termination will be deemed to have occurred in the last twelve (12) months of this agreement.
8.5 Subject to clause 8.3, all warranties, conditions and other terms implied by law (whether by statute, common law or otherwise) are excluded from this Agreement.
9.Term and termination
9.1 This agreement shall, unless otherwise terminated as provided in this clause 9, commence on the Effective Date and shall continue for as long as any Customer uses the Services.
9.2 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
a. the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than twenty-eight (28) days after being notified in writing to make such payment;
b. the other party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of twenty-eight (28) days after being notified in writing to do so;
c. the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
d. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 ;
e. the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
f. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
g. an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
h. the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
i. a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
j. a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within fourteen (14) days;
k. any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 9.2d to clause 9.2j (inclusive);
l. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
9.3 Following the date on which this agreement is terminated:
any provisions which expressly or impliedly continue to have effect after expiry or termination of this agreement will continue in force; and
all other rights and obligations will immediately cease without prejudice to any rights, obligations, claims (including claims for damages for breach) and liabilities which have accrued prior to the date of termination.
10.General
10.1 Waste Match may alter the terms of this agreement by posting an amended version of such terms at http://wastematch.co.uk/account/terms-condition following which the Customer's continued usage of the Services shall be deemed to constitute acceptance of the amended terms. No other variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
10.2 No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
10.3 Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
10.4 If any provision (or part of a provision) of this agreement is or becomes invalid, unenforceable or illegal, the other provisions shall remain in force.
10.5 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
10.6 This agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous or collateral arrangement, understanding or agreement between them in whatever form and relating to the subject matter they cover.
10.7 Each of the parties acknowledges and agrees that in entering into this agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement, other than as expressly set out in this agreement.
10.8 The Customer shall not, without the prior written consent of Waste Match, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
10.9 Waste Match may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
10.10 Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
10.11 This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
10.12 Any notice required to be given under or in connection with this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party’s registered office.
10.13 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in between 9am and 5pm, at 9 am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.
11.Governing law and jurisdiction
This agreement and any dispute arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connect with this Agreement or its subject matter or formation (including non-contractual disputes of claims).