Terms and Conditions
 Printable Version
This is the User Agreement for Clarity.
This Agreement describes the terms and conditions applicable to your use
of the Site and Services. If you do not agree to be bound by this Agreement,
you may not use or access our services. You must read, agree with and accept
all of the terms and conditions contained in this Agreement, which include those
terms and conditions expressly set out below and those incorporated by reference,
before you may become a Registered User. We strongly recommend that, as you
read this Agreement, you also access and read the information contained in the
other pages and Sites referred to in this document, as they may contain further
terms and conditions which apply to you as a Registered User.
We may amend this Agreement at any time by giving you notice by e-mail or by
posting the amended Agreement on our Site. Any amended Agreement will govern
new user registrations from the date that it is posted on the Site. Existing
users will be bound by the amended Agreement from the time they access the Site
or use the Services after the amended agreement has been posted onto the Site.
No other amendment to this Agreement will be effective unless made in writing,
signed by you and by Clarity.
Definitions
In this Agreement the following words and expressions shall have the following
meanings:
"Accredited Reprocessor" means an organisation involved in
the reprocessing of packaging waste materials in which for the purpose of this
Agreement is accredited by an Agency;
"Agency" means the Environmental Agency, Scottish Environment
Protection Agency or the Environment and Heritage Service or any successor to
the same;
"Clarity" means Clarity Environmental Limited registered in
England under Company 4559478;
"Clarity Commission" means the fees to be paid by the Buyer
and the Seller for the provision by Clarity of the Services as are more particularly
set out in the pricing section on the Site.;
"Business Day" means a day other than a Saturday or Sunday
on which Banks generally are open for business in London;
"Buyer" means a Registered User wishing to buy PRN's;
"Contract Information" means the total sale price, Clarity
Commission, Delivery Charges (if any) and any other information Clarity deem
necessary to provide to either the Buyer or the Seller which shall in respect
of Forward Contracts include relevant identification information of both parties
to the Forward Contract;
"Consumer" means any party not using the Site or Services for
the purpose of that party's business, trade or profession;
"Delivery Charges" means the cost to Clarity of complying with
the provisions of clause 8.3.1 or 8.3.2 as the case may be;
"End Time" means the time stated in the Sale Criteria as the
time when the sale shall conclude;
"Exporter" means an organisation which is accredited by an
Agency as an exporter of packaging for recycling or reprocessing outside the
United Kingdom;
"Express Service" means the sale of PRN's hereunder by way
of the fast track procedure set out in clause 5;
"Forward Contracts" means a contract for the sale by a Seller
and purchase by a Buyer of Forward PRN's;
"Forward PRN's" means a packaging recovery note (or packaging
export recovery note) not yet issued by an Accredited Reprocessor or Exporter
for the purpose of the Regulations, but which shall be issued at a future date
as specified by such Accredited Reprocessor or Exporter.
"Member ID" means the code allocated to a Registered User granting
access to the Services and identifying such Registered User
"Member Profile" means the profile of information provided
by Registered Users on registration to the Site;
"Net Settlement Proceeds" means a sum equal to the Settlement
Amount less (i) the Clarity Commission payable by the Buyer and the Seller (and
any VAT or other sales tax payable on the same) and (ii) any sums incurred by
Clarity in satisfying its obligation in clause 8.3.2, payable by the Seller pursuant
to clause 7.3;
"Payment Methods" means BACS transfer, CHAPS transfer or Cheque;
"PRN's" means a packaging recovery note (or a packing export
recovery note) issued by an Accredited Reprocessor or Exporter as the case may
be for the purpose of the Regulations;
"Registered User" means the party who has registered with Clarity
for the purpose of using the Services on the Site;
"Regulations" means the Producer Responsibility Obligations
(Packaging Waste) Regulations 1997 (as amended) and any statutory modification,
re-enactment or replacement thereof;
"Reserve Requirement" means (a) in a Traditional Format Sale,
the minimum bid price that the Seller is willing to accept for the sale of that
Seller's PRN's to a Buyer as notified to Clarity by the Seller prior to the commencement
of the sale; or
(b) in a Reverse Format Sale, the maximum bid price that a Buyer is willing
to accept from a Seller for the Purchase by the Buyer of PRN's from a Seller,
as is notified to Clarity by the Buyer prior to the commencement of the sale, as
the case may be;
"Reverse Format Sale" means a purchase by a Buyer of PRN's
from a Seller, where the Buyer invites Sellers to bid for the sale of that Seller's
PRN's;
"Sale" means either a Traditional Format Sale or a Reverse
Format Sale, as the case may be;
"Sale Criteria" means such information as may be posted on
to the Site, relating to a sale and regulating the procedure or conduct of that
Sale, prior to that sale's commencement including whether or not the Sale is
being carried out y way of the Express Service or whether or not the Sale is
in respect of Forward Contracts;
"Seller" means a Registered User wishing to sell PRN's;
"Services" means the provision of a facility for the online
sale and purchase of PRN's between Registered Users;
"Settlement Amount" means a sum equal to (i) the price payable
for the PRN's the subject of any sale agreed between a Buyer and a Seller plus
(ii) a sum equal to the Clarity Commission payable by the Buyer;
"Site" means the internet site www.prnauctions.com;
"Standard Sale" any sale of PRN's hereunder that is not (i)
a sale by way of the Express Service or (ii) a Sale pursuant to a Forward Contract;
"Start Time" means the time stated in the Sale Criteria as
the time when the sale shall commence;
"Traditional Format Sale" means a sale by a Seller of PRN's
to a Buyer where the Seller invites Buyers to bid for the purchase of that Seller's
PRN's by the Buyer;
| 1. |
Use of Service |
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The Services are not available to Consumers or persons under
the age of 18 years, persons or parties who are unable to form legally binding
contracts or to temporarily or indefinitely suspended Registered Users.
If you are registering as a business entity, you represent that you have
the authority to bind the entity to this Agreement. By registering you are
representing that you are capable of forming a legally binding contract.
If you do not qualify, do not use this Site or the Services. |
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| 2. |
Registration and User ID |
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| 2.1 |
Parties using the Services are required to register with us
by completing the registration form on our home page and submitting it to
us. You hereby warrant and represent that all information provided by you
on registration was at that time, true and not misleading. |
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| 2.2 |
You will be asked to provide a Member ID and password on completion
of registration. If this Member ID and password is available it will be
assigned to you and activated following the receipt by us of a printed copy
of this User Agreement signed by you or (in the case of a company) a duly
authorised officer of the Company. If the Member ID and password are not
available you will be asked to provide alternatives. You are solely responsible
for all actions undertaken under that Member ID. It is your responsibility
to keep your Member ID and password safe. You have no right to disclose
or transfer your Member ID to any other person. Your Member ID will act
as your identity to other Registered Users of the Site. You must immediately
inform us of any unauthorised use of your Member ID and password or any
other breach of security regarding the Services or the Site. |
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| 2.3 |
Registered Users shall within 5 Business Days of any change,
inform Clarity in writing of any change to its name, principal place of business,
directors or officers or any other information required to be submitted
by Registered Users upon registration. Registered Users may amend or otherwise
modify the information they have provided on the Site as and when required
to do so by accessing and changing their Member Profile. |
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| 3. |
Venue |
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| 3.1 |
The Services provided via the Site may commonly be referred
to, as online auction services. Clarity acts as a venue allowing Registered
Users to sell and buy PRN's but have no control over the ability of Sellers
to sell the PRN's or the ability of buyers to buy PRN's. Do not assume that
the offer, sale, purchase, export or import of any item is valid and legal
simply because it is listed on the Site. Registered Users (whether as Buyer
or Sellers of PRN's) accept sole responsibility for the legality of their
actions under laws applying to them. All PRN's bought and sold by Registered
Users via the Site are not, unless specifically stated in the relevant Sale
Criteria the property of or owned by Clarity. Clarity shall not be personally liable
on any contract for the sale of PRN's between Registered Users. |
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| 3.2 |
Clarity cannot and does not confirm the purported identity of
Registered Users or the validity of the information which Registered Users
provide on registration or otherwise post to the Site. In the event of any
dispute Clarity may disclose any information it holds regarding the identity
of a Registered User to any other Registered User involved in such dispute
or any Accredited Agency or other third party or regulatory body investigating
any such dispute or otherwise as may be required by law. |
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| 3.3 |
In the event that you have any right, claim or action against
any other Registered User arising from your use of our Site and the Services,
you agree to pursue such right, claim or action independently of and without
recourse to us, and you hereby release Clarity (and its parent, subsidiaries,
affiliates, officers, directors, agents and employees) from all and any
claims, liability, damages, losses, costs and expenses, including legal
fees, known and unknown, arising from or in any way connected with such
right, claim or action. |
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| 4. |
Bidding and Buying |
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| 4.1 |
As a Buyer in a Traditional Formal Sale, you will be obligated
to complete a transaction with a Seller if you are the highest bidder at
the end of the sale and have met the Reserve Requirement (if any). A contract
for the sale and purchase of the PRN's is formed between the Buyer and Seller
at this time. |
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| 4.2 |
As a Seller in a Traditional Format Sale, you will be obligated
to complete a transaction with the Buyer who, at the end of the sale submits
the highest bid where such Buyer meets or betters the Reserve Requirement.
A contract of sale and purchase for the PRN's is formed between the Seller
and the Buyer at this time. |
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| 4.3 |
As a Seller in a Reverse Format Sale, you will be obliged
to complete a transaction with a Buyer if you are the lowest bidder at the
end of the Sale and have met the Reserve Requirement (if any). A contract
for the sale and purchase of the PRN's is formed between the Buyer and Seller
at this time. |
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| 4.4 |
As a Buyer in a Reverse Format Sale you will be obliged to
complete a transaction with the Seller who at the end of such sale has submitted
the lowest bid where such bid meets or betters the Reserve Requirement (if
any). A contract for the sale and purchase of the PRN's is formed between
the Buyer and Seller at this time. |
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| 4.5 |
Your placing of a bid entitles Clarity and Buyers or Sellers (as
the case may be) to rely on your bid and as a result you warrant and undertake
that you have the legal right to make such bid and enter into any such transaction. |
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| 4.6 |
By bidding on any PRN's you agree to be bound by and comply
with the conditions of sale (if any) included in the Sale Criteria on the
Site in addition to the conditions set out in this Agreement. Bids are only
retractable when the Seller or Buyer (as the case may be) changes the item's
description after a bid is placed or a clear typographical error is made.
Failure by a Registered User to place a bid in accordance with the conditions
set out in the Sale Criteria will result in any such individual bid being
null and void and any such bid shall be disregarded. Notwithstanding the
above, failure to place a bid in accordance with the Sale Criteria by a
Registered User shall not prevent such user from placing further bids in
accordance with the Sale Criteria, in the same sale. |
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| 4.7 |
Following formation of any contract for sale under clauses
4.1 to 4.4 4 and clauses 5 and 6, Clarity shall issue a notice to the relevant Seller and Buyer who
have contracted for the sale and purchase of PRN's pursuant to the sale
providing them with the Contract Information. In the event that following
any Sale, the Reserve Requirement is not achieved, then notice of the same
shall be posted onto the Site by Clarity. In such circumstances no Clarity Commission
becomes payable. |
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| 4.8 |
In relation to all PRN's sold or offered for sale through
the Services, the Seller warrants and represents to Clarity and Buyers that
he/it is the absolute unencumbered legal owner with the right to sell those
PRN's. All PRN's sold between Buyers and Sellers via the Site are sold by
the Seller with full title guarantee. |
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| 4.9 |
In a Traditional Format Sale a Seller is not entitled to and
must not, directly or indirectly, place any bids on PRN's listed for sale
by that Seller. |
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| 4.10 |
In a Reverse Format Sale, the Buyer is not entitled to and
must not, directly or indirectly, place any bids. |
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| 4.11 |
Sales will commence at the Start time and will, subject to
clause 4.12, finish at the End Time. |
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| 4.12 |
If in any sale, a bid is received within 5 minutes of the
End Time then such sale shall continue for such additional time past the
End Time until a period of 5 minutes has elapsed since the time of placing
of the last bid to be received. |
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| 5. |
Express Service Sales |
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| 5.1 |
The terms and Conditions set out in this agreement shall apply
equally to Express Services Sales save insofar as they are inconsistent
with the provisions of this clause 5. |
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| 5.2 |
Registered Users shall be required to notify Clarity of their
requirement for any Sale hereunder to be by way of Express Service at the
time of notification to Clarity of their requirement for a Sale. |
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| 5.3 |
Any Sales by way of the Express Service shall be established
and commenced within 2 Business Days of the notification referred to in
clause 5.1 above. |
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| 5.4 |
Following formation of a Contract of Sale between a Buyer
and a Seller under an Express Service sale: |
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| 5.4.1 |
The Buyer shall transfer the Settlement Amount plus
any Delivery Charges to be paid by the Buyer pursuant to clause 7.2
to Clarity by way of CHAPS transfer by 5 p.m. on the day after the day
on which the Sale ends; |
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| 5.4.2 |
The Seller shall, by special delivery, forward the PRN's
to Clarity by 5 p.m. on the day after the day on which the Sale ends. |
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| 5.4.3 |
The Seller shall fax to Clarity a copy of the relevant PRN's
acquired by the Buyer within 12 hours of formation of the Contract
of Sale. |
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| 5.5 |
Clarity shall by close of business on the next Business Day after
receipt of both the Settlement Amount referred to in clause 5.4.1 above
and the PRN's referred to in clause 5.4.2 above, remit the Net Settlement
Proceeds (by way of CHAPS transfer) to the Seller and the PRN's (by way
of special delivery) to the Buyer to such bank account or address (as the
case may be) as are notified in advance to Clarity by the Buyer and the Seller. |
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| 6. |
Forward Contracts |
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| 6.1 |
The terms and conditions set out in this Agreement shall apply equally to Forward Contracts save insofar as they are inconsistent with the provisions of this clause 6. |
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| 6.2 |
Forward Contracts may be entered into between Buyers and Sellers by way of both Traditional Format Sales and Reverse Format Sales. |
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| 6.3 |
Clarity Commission shall be payable by the Buyer and Seller to a Forward Contract as follows: |
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| 6.3.1 |
as to 50% within 7 days of the Formation of the Contract between the Buyer and the Seller; and |
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as to the remaining 50% in 5 equal and consecutive monthly instalments, the first such instalment to be paid on the date 30 days after the due date for payment referred to in clause 6.3.1 above;
But if any Clarity Commission to be paid by the Buyer or Seller hereunder is due and payable but remains unpaid then all outstanding commission under any contract of sale formed hereunder (whether due for payment or not) of such Buyer and/or Seller shall become immediately due and payable.
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| 6.4 |
Clarity shall not be responsible for the handling (and accordingly forwarding) of any PRN's the subject of Forward Contracts, nor the purchase price to be paid by the Buyer of PRN's under such Contracts. It shall be the responsibility of the Seller to deliver such PRN's to the Buyer in accordance with the Sale Criteria. The Buyer shall pay the price payable for the PRN's directly to the Seller in accordance with the terms of payment set out in the Sale Criteria. |
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| 7. |
Cancellation |
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Registered Users acknowledge that Traditional Format Sales and Reverse
Format Sale cannot be cancelled or otherwise terminated at any time following
the Commencement of the relevant sale.
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| 8. |
Fees |
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See Pricing Structure. |
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| 8.1 |
In consideration of the use by the Buyer and Seller of the
Site and the provision by Clarity of the Services the Buyer and Seller to any
contract for the sale of PRN's hereunder shall each pay to Clarity the Clarity Commission
in the manner set out in Clause 9 below. The Clarity Commission is exclusive
of any VAT or other sales tax which shall be payable in addition. |
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| 8.2 |
In addition to the sums payable pursuant to clause 8.1 above,
the Buyer shall be responsible for all and any Delivery Charges (including
but not limited to any bank and postal charges). |
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| 8.3 |
In addition to the sums payable pursuant to clause 8.1 above,
the Seller shall be responsible for all and any Delivery Charges (including
but not limited to any bank and postal charges). |
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| 9. |
Settlement Procedure (Standard Sales) |
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In any Standard Sale, following formation of a Contract of
Sale between a Buyer and a Seller and receipt of the notice in 4.7 above: |
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| 9.1 |
The Buyer shall within 5 Business Days, pay the Settlement
Amount, plus any Delivery Charges to be paid by the Buyer pursuant to clause
8.2, to Clarity in cleared funds by one of the Payment Methods. Property and
risk in PRN's shall not pass to the Buyer until the Settlement Amount has
been paid in full and in cleared funds. |
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| 9.2 |
The Seller shall: |
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| 9.2.1 |
within 12 hours of formation of the relevant Contract
of Sale, fax to Clarity a copy of the relevant PRN's acquired by the Buyer |
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| 9.2.2 |
within 5 Business Days, forward the relevant PRN's to
Clarity in accordance with clause 9.6. |
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| 9.3 |
Within 3 Business Days of the receipt by Clarity of the PRN's
in 9.2 above and the Settlement Amount, Clarity shall: |
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| 9.3.1 |
Remit the PRN's to the Buyer; and |
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| 9.3.2 |
Remit the Net Settlement Proceeds to the Seller. |
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| 9.4 |
If the Buyer or the Seller fails to comply with the provisions
of clause 9.1 or 9.2.2 above then Clarity shall notify the other party to the
Sale of such failure and following a request to do so, return to such other
party the relevant PRN's or Settlement Proceeds (plus any interest earned
but less any commission due to Clarity from the Buyer pursuant to clause 8.1)
as the case may be. |
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| 9.5 |
All PRN's to be delivered by Clarity hereunder shall be delivered
by special delivery post. The maximum value of PRN's that shall be included
in any particular delivery shall not be more than £10,000. In the
event that Clarity are required to deliver PRN's in value in excess of £10,000
to any Buyer then Clarity shall deliver the same by way of multiple packages
to ensure that the value of PRN's in any particular package so delivered
is not more than £10,000. Clarity shall not be liable for any failure
to comply with the provisions of clause 9.3 in circumstances where such
failure arises as a result of any failure by the Seller to comply with the
provisions of clauses 9.6. |
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| 9.6 |
Sellers must deliver PRN's to Clarity by way of special delivery
post. Where Sellers are required to deliver PRN's to Clarity where the value
of such PRN's exceeds £10,000 then the Seller must ensure that no
single package of PRN's delivered contains PRN's in excess of £10,000
in value. Where PRN's in excess of £10,000 in value are to be delivered
they must be delivered in multiple packages. Sellers undertake to indemnify
Clarity in respect of any losses, costs, claims, demands, proceedings incurred
or suffered by Clarity arising from any failure by Sellers to comply with this
clause, including any loss resulting from any subsequent failure by Clarity
to comply with its obligations to remit PRN's to Buyers pursuant to clause
9.3. |
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| 10. |
Access and Interference. |
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You agree that you will not use or induce the use of any device, software
or routine to interfere or attempt to interfere with the proper working
of the Site or any sale being conducted on the Site.
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| 11. |
Breach |
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Without limiting our other remedies, Clarity may immediately issue
a warning, suspend or terminate your registration and access to the Site
and Services, impose any restrictions or conditions on your use of the Site
and Services as Clarity may decide and refuse to provide our Services to you
without notice to you: (a) if you breach this Agreement; (b) if we are unable
to verify or authenticate any information you provide to us; or (c) if we
believe that your actions may cause legal liability for Clarity. |
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| 12. |
Privacy |
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Please note that all Information relating to Registered Users and held
by Clarity will be stored and processed on our computers in the United Kingdom.
Clarity will hold and transmit such Information in a safe, confidential and
secure environment. If you object to your Information being transferred,
used or disclosed in accordance with this Agreement please do not register.
Please refer to our Privacy Policy for further information.
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| 13. |
No Warranty |
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We do not guarantee continuous, uninterrupted or secure access
to the Site or the Services, and operation of the Site may be interfered
with by numerous factors outside of Clarity's control. The Site and Services
are provided "as is" and as and when available, and to the extent
permissible by law. Clarity exclude all implied warranties, conditions or other
terms, whether implied by statute or otherwise, including without limitation
any terms as to skill and care or timeliness of performance. Some jurisdictions
do not allow the disclaimer of implied warranties, so the foregoing disclaimer
may not apply to you. |
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| 14. |
Limitation of Liability |
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| 14.1 |
Nothing in this Agreement shall limit or exclude Clarity's liability
for fraudulent misrepresentation, or for death or personal injury resulting
from Clarity's negligence or the negligence of its servants, agents or employees.
Subject to the foregoing, Clarity will not be liable for any economic losses
(including, without limitation, loss of revenues, profits, contracts, business
or anticipated savings), any loss of data, goodwill or reputation, or any
special, indirect or consequential damages (however arising, including negligence)
arising out of or in connection with this Agreement. Some jurisdictions
do not allow the exclusion of incidental or consequential damages, so the
above exclusion may not apply to you. |
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| 14.2 |
Clarity have no liability of any sort (including liability for
negligence) for the acts or omissions of other providers of telecommunications
services or for faults in or failures of their networks and equipment. |
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| 14.3 |
Clarity shall not be liable to any Registered User for the failure
by Registered Users to comply with this Agreement which shall include any
failure by such Registered Users to conclude any Sale agreed hereunder.
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| 14.4 |
Clarity's total liability to Registered Users in respect of their
use of the Site and the Services in any circumstance is limited to an amount
equal to the Clarity commission charged to that Registered User for the Contract
in respect of which such liability arises. |
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| 14.5 |
Clarity will not be in breach of this Agreement or otherwise liable
to Registered Users for any delay in performance to the extent that any
delay or failure is due to circumstances beyond Clarity's reasonable control
including, without limitation strikes, lock outs and other industrial disputes,
breakdown of systems or network access, flood, fire, explosion or accident. |
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| 15 |
Indemnity |
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You agree to indemnify Clarity and hold Clarity and (as applicable)
its parent, subsidiaries, affiliates, officers, directors, agents, and employees,
harmless from any costs, claims or liabilities or demand, including reasonable
legal fees, made by any third party due to or arising out of your breach
of this Agreement, or your violation of any law or the rights of a third
party. |
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| 16. |
Notices |
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Unless otherwise stated notices to Clarity must be sent by email
to [info@clarity.eu.com]. Notices to you will be sent to the email address that you provide
to Clarity during the registration process (receipt is deemed 24 hours after
an email is sent, unless we receive notice that the email address is invalid. |
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| 17. |
Governing Law and Legal Compliance |
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This Agreement shall be governed by and construed in accordance with
English law and subject to the non-exclusive jurisdiction of the English
courts.
The laws of your country may be different from English law, including
laws governing what can be legally offered, sold, exported, bought or
imported. There may be additional legal requirements, relating to (for
example) the requirement to hold a licence to buy or sell certain items,
or to register a transfer in a central registry. You shall comply with
all applicable domestic and international laws, statutes, ordinances and
regulations regarding your use of the Site and Services and your bidding
on, listing, purchase, solicitation of offers to purchase and sale of
PRN's. Registered Users should not assume that they are allowed to do
what other users do, or that we are approving or validating any transaction,
notwithstanding that Registered Users may have successfully made similar
sales or purchases in the past.
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| 18. |
Dispute Resolution |
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Disputes between Registered Users or between Registered Users and Clarity
shall be reported to Clarity. Any claim or dispute arising out of or in connection
with this Agreement may at Clarity's discretion be settled by binding arbitration
by reference to an arbitration tribunal designated by Clarity. You agree to
be bound by the ruling arbitrator. The costs of the dispute are borne
by the parties to such dispute in such proportions as the arbitrator shall
decide. Any such controversy or claim shall be arbitrated on an individual
basis, and shall not be consolidated in any arbitration with any claim
or controversy of any other party. The arbitration shall be conducted
in the U.K., and judgment on the arbitration award may be entered into
any court having jurisdiction thereof.
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| 19. |
General |
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| 19.1 |
If any provision of this Agreement is held to be invalid or unenforceable,
such provision shall be struck out and the remaining provisions shall
be enforced. Registered Users agree that this Agreement may be automatically
assigned by Clarity, in its sole discretion, to a third party in the event
of a merger or acquisition. Registered Users and Clarity are independent contractors,
and no agency, partnership, joint venture or employee-employer relationship
is intended or created by this Agreement. Any failure by Clarity to act with
respect to a breach by Registered Users or others does not waive Clarity's
right to act with respect to subsequent or similar breaches. This Agreement
together with any document or information expressly referred to within
its provisions sets forth the entire understanding and agreement between
Registered Users and Clarity with respect to its subject matter.
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| 19.2 |
Interest shall accrue on all sums due to Clarity hereunder from the Buyer or the Seller but unpaid from the due date until payment (as well before as after judgment) at the rate specified by or referred to in the Late Payment of Commercial Debts (Interest) Act 1998 or, if greater, the rate 5% over the base rate of Barclays Bank plc from time to time. |
Terms & Conditions for the Broker Board
SALE IS SUBJECT TO OUR TERMS & CONDITIONS
TERMS OF SALE
1 INTERPRETATION
1.1 In these Terms:
“ACCREDITED REPROCESSOR means an organisation involved in the reprocessing
of packaging waste materials and which for the purpose of these Terms is accredited
by an Agency in accordance with [details of legislation];
“AGENCY” means the Environmental Agency, Scottish Environmental
Protection Agency or The Environment and Heritage Service or any successor to
the same;
“BUYER” means the person who accepts the Company’s Written
quotation for the sale of the PRN’s or whose Written order for the purchase
of PRN’s is accepted by the Company;
“COMPANY” means Clarity Environmental Limited (registered in England
under number 04559478);
“CONTRACT” means the contract for the sale and purchase of the PRN’s;
“EXPORTER” means an organisation which has been accredited by an
Agency as an Exporter of packaging for recycling or reprocessing outside the
United Kingdom
“PRN’s” means packaging recovery notes (or packaging export
recovery notes) being the documents issued by an Accredited Reprocessor or Exporter
(as the case may be) for the purpose of the Regulations;
“REGULATIONS” means The Producer Responsibility Obligations (Packaging
Waste) Regulations 1997 (as amended) and any such equivalent regulations as
shall be in force and which have the effect of amending or replacing the provisions
of the Regulations (in whole or in part);
“TERMS” means the standard terms of sale set out in this document
and (unless the context otherwise requires) includes any special terms agreed
in Writing between the Buyer and the Company;
“WRITING”, and any similar expression, includes facsimile transmission
and comparable means of communication, including electronic mail.
1.2 A reference in these Terms to a provision of a statute
shall be construed as a reference to that provision as amended, re enacted or
extended at the relevant time.
1.3 The headings in these Terms are for convenience only and
shall not affect their interpretation.
2 BASIS OF THE SALE
2.1 The Company shall sell and the Buyer shall purchase the
PRN’s in accordance with the Company’s Written quotation (if accepted
by the Buyer), or the Buyer’s Written order (if accepted by the Company),
subject in either case to these Terms, which shall govern the Contract to the
exclusion of any other terms subject to which any such quotation is accepted
or purported to be accepted, or any such order is made or purported to be made,
by the Buyer.
2.2 No variation to these Terms shall be binding unless agreed
in Writing between the authorised representatives of the Buyer and the Company.
2.3 The Company’s employees or agents are not authorised
to make any representations concerning the PRN’s unless confirmed by the
Company in Writing. In entering into the Contract the Buyer acknowledges that
it does not rely on any such representations which are not so confirmed, but
nothing in these Terms affects the liability of either party for fraudulent
misrepresentation.
2.4 Any advice or recommendation given by the Company or its
employees or agents to the Buyer or its employees or agents as to the use of
the PRN’s which is not confirmed in Writing by the Company is followed
or acted upon entirely at the Buyer’s own risk, and accordingly the Company
shall not be liable for any such advice or recommendation which is not so confirmed.
2.5 Any typographical, clerical or other error or omission
in any sales literature, quotation, price list, acceptance of offer, invoice
or other document or information issued by the Company shall be subject to correction
without any liability on the part of the Company.
3 ORDERS
3.1 No order submitted by the Buyer shall be deemed to be
accepted by the Company unless and until confirmed in Writing by the Company’s
authorised representative.
3.2 The Buyer shall be responsible to the Company for ensuring
the accuracy of the terms of any order submitted by the Buyer, and for giving
the Company any necessary information relating to the PRN’s within a sufficient
time to enable the Company to perform the Contract in accordance with its terms.
3.3 The quantity and description of the PRN’s shall
be as set out in the Company’s quotation (if accepted by the Buyer) or
the Buyer’s order (if accepted by the Company).
3.4 No order which has been accepted by the Company, or the
Buyer (as the case may be) may be cancelled by the Buyer except with the agreement
in Writing of the Company and on terms that the Buyer shall indemnify the Company
in full against all loss (including loss of profit), costs (including any administrative
costs), damages, charges and expenses incurred by the Company as a result of
cancellation.
4 PRICE OF THE PRN’S
4.1 The price of the PRN’s shall be the Company’s
quoted price.
4.2 Unless otherwise agreed in Writing between the Buyer and
the Company, all prices given by the Company exclude the cost of delivery and
insurance.
4.3 The price is exclusive of any applicable value added tax,
which the Buyer shall be additionally liable to pay to the Company.
5 TERMS OF PAYMENT
5.1 Subject to any special terms agreed in Writing between
the Buyer and the Company, the Company shall provide the Buyer with a receipted
invoice in respect of the price of the PRN’s on or at any time after (i)
the date of acceptance of the Company’s quotation by the Buyer or (ii)
the date of the acceptance by the Company of the Buyer’s order, as the
case may be.
5.2 The Buyer shall pay the price of the PRN’s (in cleared
funds), by bank transfer or other guaranteed method of payment, without any
other deduction, set off or counterclaim on the date that the Buyer submits
its order for the PRN’s, and the Company shall be entitled to recover
the price, notwithstanding that delivery may not have taken place and the property
in the PRN’s has not passed to the Buyer. The time of payment of the price
shall be of the essence of the Contract.
5.3 If the Buyer fails to make any payment on the due date
then, without limiting any other right or remedy available to the Company, the
Company may:
5.3.1 cancel the contract or suspend any further deliveries
to the Buyer;
5.3.2 appropriate any payment made by the Buyer to such of
the PRN’s (or the PRN’s supplied under any other contract between
the Buyer and the Company) as the Company may think fit (notwithstanding any
purported appropriation by the Buyer); and
5.3.3 charge interest on the outstanding amount (both before
and after any judgements) at the greater rate of either (i) 4% above the base
rate from time to time of Barclays Bank plc; or (ii) such rate as is set out
or referred to in the Late Payment of Commercial Debts (Interest) Act 1998 or
any statutory modification or re-enactment thereof; in either case from the
due date until the outstanding amount is paid in full;
6 DELIVERY
6.1 Delivery of the PRN’s shall be made by the Company
placing the PRN’s in the post to the Buyer.
6.2 Any dates quoted for delivery of the PRN’s are approximate
only and the Company shall not be liable for any delay in delivery of the PRN’s
however caused. Time for delivery shall not be of the essence of the Contract
unless previously agreed by the Company in Writing. The PRN’s may be delivered
by the Company in advance of the quoted delivery date.
6.3 If the Company fails to deliver the PRN’s (or any
instalment) for any reason other than any cause beyond the Company’s reasonable
control or the Buyer’s fault, and the Company is accordingly liable to
the Buyer, the Company’s liability shall be limited to the excess (if
any) of the cost to the Buyer (in the cheapest available market) of similar
PRN’s to replace those not delivered over the price of the PRN’s.
6.4 If the Buyer fails to take delivery of the PRN’s
or fails to give the Company adequate delivery instructions at the time stated
for delivery (otherwise than by reason of any cause beyond the Buyer’s
reasonable control or by reason of the Company’s fault) then, without
limiting any other right or remedy available to the Company, the Company may:
6.4.1 store the PRN’s until actual delivery and charge
the Buyer for the reasonable costs (including any insurance) of storage; or
6.4.2 sell the PRN’s at the best price readily obtainable
and (after deducting all reasonable storage and selling expenses) account to
the Buyer for the excess over the price under the Contract or charge the Buyer
for any shortfall below the price under the Contract.
7 RISK AND PROPERTY
7.1 Risk of damage to or loss of the PRN’s shall pass
to the Buyer at the time of delivery or the time when the Company has tendered
delivery of the PRN’s, if earlier.
7.2 Notwithstanding delivery and the passing of risk in the
PRN’s, or any other provision of these Terms, the property in the PRN’s
shall not pass to the Buyer until the Company has received in cash or cleared
funds payment in full of the price of the PRN’s and all other PRN’s
agreed to be sold by the Company to the Buyer for which payment is then due.
7.3 Until such time as the property in the PRN’s passes
to the Buyer, the Buyer shall hold the PRN’s as the Company’s fiduciary
agent and bailee, and shall keep the PRN’s separate from those of the
Buyer and third parties and properly stored, protected and insured and identified
as the Company’s property, but the Buyer may resell or use the PRN’s
in the ordinary course of its business.
7.4 Until such time as the property in the PRN’s passes
to the Buyer (and provided the PRN’s have not been resold), the Company
may at any time require the Buyer to deliver up the PRN’s to the Company
and, if the Buyer fails to do so forthwith, enter on any premises of the Buyer
or any third party where the PRN’s are stored and repossess them.
7.5 The Buyer shall not be entitled to pledge or in any way
charge by way of security for any indebtedness any of the PRN’s which
remain the property of the Company, but if the Buyer does so all moneys owing
by the Buyer to the Company shall (without limiting any other right or remedy
of the Company) forthwith become due and payable.
8 LIABILITY
8.1 Subject as expressly provided in these Terms, and except
where the PRN’s are sold to a person dealing as a consumer (within the
meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or
other terms implied by statute or common law are excluded to the fullest extent
permitted by law.
8.2 Except in respect of death or personal injury caused by
the Company’s negligence, the Company shall not be liable to the Buyer
by reason of any representation (unless fraudulent), or any implied warranty,
condition or other term, or any duty at common law, or under the express terms
of the Contract, for loss of profit or for any indirect, special or consequential
loss or damage, costs, expenses or other claims for compensation whatsoever
(whether caused by the negligence of the Company, its employees or agents or
otherwise) which arise out of or in connection with the supply of the PRN’s
(including any delay in supplying or any failure to supply the PRN’s in
accordance with the Contract or at all) or their use or resale by the Buyer,
and the entire liability of the Company under or in connection with the Contract
shall not exceed the price of the PRN’s, except as expressly provided
in these Terms.
8.3 The Company shall not be liable to the Buyer or be deemed
to be in breach of the Contract by reason of any delay in performing, or any
failure to perform, any of the Company’s obligations in relation to the
PRN’s, if the delay or failure was due to any cause beyond the Company’s
reasonable control. Without limiting the foregoing, the following shall be regarded
as causes beyond the Company’s reasonable control:
8.3.1 Act of God, explosion, flood, tempest, fire or accident;
8.3.2 war or threat of war, sabotage, insurrection, civil disturbance
or requisition;
8.3.3 acts, restrictions, regulations, bye laws, prohibitions
or measures of any kind on the part of any governmental, parliamentary or local
authority;
8.3.4 import or export regulations or embargoes;
8.3.5 strikes, lock outs or other industrial actions or trade
disputes (including postal strikes and whether involving employees of the Company
or of a third party);
8.3.6 power failure.
9 INSOLVENCY OF BUYER
9.1 This clause 9 applies if:
9.1.1 the Buyer makes a voluntary arrangement with its creditors
or (being an individual or firm) becomes bankrupt or (being a company) becomes
subject to an administration order or goes into liquidation (otherwise than
for the purposes of amalgamation or reconstruction); or
9.1.2 an encumbrancer takes possession, or a receiver is appointed,
of any of the property or assets of the Buyer; or
9.1.3 the Buyer ceases, or threatens to cease, to carry on
business; or
9.1.4 the Company reasonably apprehends that any of the events
mentioned above is about to occur in relation to the Buyer and notifies the
Buyer accordingly.
9.2 If this clause applies then, without limiting any other
right or remedy available to the Company, the Company may cancel the Contract
or suspend any further deliveries under the Contract without any liability to
the Buyer, and if the PRN’s have been delivered but not paid for the price
shall become immediately due and payable notwithstanding any previous agreement
or arrangement to the contrary.
10 GENERAL
10.1 A notice required or permitted to be given by either
party to the other under these Terms shall be in Writing addressed to that other
party at its registered office or principal place of business or such other
address as may at the relevant time have been notified pursuant to this provision
to the party giving the notice.
10.2 No waiver by the Company of any breach of the Contract
by the Buyer shall be considered as a waiver of any subsequent breach of the
same or any other provision.
10.3 If any provision of the Contract is held by a court or
other competent authority to be invalid or unenforceable in whole or in part
the validity of the other provisions of the Contract and the remainder of the
provision in question shall not be affected.
10.4 Any dispute arising under or in connection with the Contract
or the sale of the PRN’s shall be referred to arbitration by a single
arbitrator appointed by agreement or (in default) nominated on the application
of either party by the President for the time being of The Law Society of England
and Wales, in accordance with the rules of the Arbitration Act 1996 or any statutory
modification or re enactment thereof.
10.5 The Contract shall be governed by the laws of England,
and the Buyer agrees to submit to the non exclusive jurisdiction of the English
courts.
To accept please print, sign and fax to 0845 129 7178
| Signed: |
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| Date: |
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| Name: |
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| Position: |
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| Company: |
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| Address: |
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| Telephone: |
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| Fax: |
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| Email: |
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Bank details for BACS/CHAPS payment
Account Name: Clarity Environmental Limited
Bank: Lloyds TSB. Kemptown, Brighton
Sort Code: 30-94-63
Account Number: 1094014
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