THIS AGREEMENT (“Agreement”) is made on the
BETWEEN:
(1) KUALITI
ALAM SDN BHD, (Company No. 230440-V), a company incorporated in and under
the laws of Malaysia with a registered address at 13-1, Mercu UEM, Jalan Stesen
Sentral 5, Kuala Lumpur Sentral, 50470 Kuala Lumpur, Malaysia (the “KASB”)
of the one part;
and
(2) The Party whose
name, address and particulars are set out in Section 1 of Annexure 1 (the
“Customer”);
KASB and the Customer shall collectively be
referred to as the “Parties” and each a “Party”.
WHEREAS:
(A) KASB is a company involved in inter alia the businesses of providing
waste collection, transportation, disposal, treatment, and waste management
related services.
(B) The Customer owns and operates a healthcare facility as set
out in Section 1A of Annexure 1.
(C) The Customer wishes to, on exclusive basis, engage KASB for
the Services, and KASB has agreed at the request of the Customer, to provide the
Services (as defined in Clause 1), upon the terms and subject to the conditions
contained herein.
NOW IT IS HEREBY AGREED as follows:
|
|
|
|
“Consignment
Note”
|
means the consignment
note which incorporates all the requirements as contained in the
Environmental Quality (Scheduled Wastes) Regulations of 2005, acknowledging
the collection of Waste signed by KASB and/or KASB’s nominated transporter, and
the Customer, in a form issued by KASB.
|
|
“Services”
|
means the services
of KASB referred to in this Agreement and specifically set out in Clause 6,
or as the context may require, a specific part thereof.
|
|
“Sharp
Instruments”
|
means small, sharp
or cutting instruments, which is likely to penetrate or perforate the skin on
contact and includes needles, small scissors, blades and scalpels, but shall
exclude metal bars, and/or such similar objects which will likely to cause
damage the waste treatment facility owned by KASB.
|
|
“Site”
|
means the site designated
for the collection of the Waste pursuant to this Agreement.
|
|
“Standard
Rates”
|
means the fees and
charges of KASB for the provision of the Services and as specified in Section
2 of Annexure 1 and/or any other rates revised by KASB in accordance to Clause
5.1 hereinafter mentioned.
|
|
“Term”
|
means the duration
of this Agreement as specified in Section 4 of Annexure 1 and continues for
as long as this Agreement is subsisting unless terminated in accordance with
Clause 12 hereof.
|
|
“Waste”
|
means the clinical
waste or disposal matter expressly specified in Section 6 of Annexure 1. For
the avoidance of doubt and for the purpose of this Agreement, waste which
is/are not specified under Section 6 of Annexure, shall not be considered as
waste.
|
|
“Waste
Information Form”
|
means the Waste
Information Form as herein appended under Annexure 2.
|
|
“Wheeled
Bins”
|
means items
specified in Section 7 of Annexure 1 provided to the Customer by KASB on loan
basis in accordance with Clause 8(i) hereof.
|
This Agreement shall
commence on the date specified in Section 4 of Annexure 1 and shall, unless
earlier terminated in accordance with Clause 12, continue for the full duration
of the Term.
The Parties may, if
they so desire, not later than 30 days prior to the expiry of the Term,
mutually renew this Agreement in writing for a further term (the "Extended
Term”) commencing on the date following the date of expiry of the Term.
The Customer hereby
appoints KASB, and KASB hereby accepts the Customer’s appointment, as an independent
contractor, on an exclusive basis, during the Term, to carry out the Services.
For the purpose of
the Services, the following details shall be provided by the Customer to KASB,
in writing, within 14 days, or such other period as determined by KASB, commencing
from the date of this Agreement:
(a) the specific
location of the Site;
(b)
the proposed frequency of collection; which will require to be
agreed by
KASB;
(c)
the
nature and confirmation of the Waste and to further complete the Waste
Information Form;
(d)
any
special information concerning the nature of the Waste without which KASB would
not be able to safely and properly collect and dispose of such Waste or which
would not reasonably be determined from the description of the Waste;
(e) the quantity of any consumables required by the Customer;
(f)
confirmation
to undertake to calibrate the Waste weighing scale once a year with approval
permit; and/or
(g)
any
such details as may be required by KASB from time to time for the Services.
For the avoidance of
doubt, KASB shall not be liable or obliged to provide the Services and/or be
responsible for any liabilities, if the Customer shall fail to provide
sufficient details required by KASB, from time to time.
In consideration of
the provision of the Services, the Customer shall, during the Term, pay to KASB
the fees and other payments in accordance with the Standard Rates, provided
that after the first 3 years of the Term, KASB shall be entitled to review the
Standard Rates.
(a) Subject
to KASB’s approval on the form of payment before any collection of Waste is
made, all payments to KASB shall be made against KASB's invoices in one of the
following forms:
(i) Cash payment upon
KASB’s collection of the Waste at Site;
(ii) Cheque payment
(payable to Kualiti Alam Sdn Bhd) upon KASB’s collection of the Waste at Site;
(iii) Credit Card payment
(if applicable) upon
KASB’s collection of the Waste at Site; or
(iv) Credit terms (only
to qualified customers).The Customer shall pay the amounts payable to KASB within
30 days of receipt of invoices submitted by KASB.
(b) If the Customer
fails to pay KASB in accordance with the approved form of payment, KASB shall
be entitled to a late payment interest of 1.5% per month imposed against the
total amount of the outstanding payment, to be calculated commencing from the
date where the Customer defaults in payment until the day KASB receives the
outstanding payment from the Customer.
KASB hereby undertakes
to provide the Services as follows:-
(a) to collect on the
agreed collection day all Waste from the Site and for the purpose of this Agreement, Waste
shall only be deemed to have been collected from the Site once KASB has signed
and returned the relevant Consignment Note to the Customer;
(b) to supply, and
maintain, for the Customer, sufficient unit of 240 litre wheeled bins, provided
such Customer requires KASB to collect at least 100kg of Waste per trip/per week,
and the Customer procure the collection of such Waste, which has been properly
stored or placed in the Wheeled Bins from the designated area at the Site. KASB
shall not be obliged to collect any Waste unless such Waste has been properly
stored or placed in the Wheeled Bins supplied by KASB and in accordance with
any instruction with respect to the storage of Waste supplied by KASB to the
Customer;
(c) to procure the proper
transportation and treatment of all Waste collected by KASB or KASB’s nominated
transporter to KASB’s waste treatment facility site.
(d) to provide
consumables in accordance with Schedule 1-B, provided such Customer requires
KASB to collect less than 100kg of Waste per trip/per week;
(e) to comply with all
applicable laws, statutory rules and regulations and any directions of the
relevant regulatory authority in effect relating to the collection,
transportation, disposal, treatment of Waste; and
(f) to advise the Customer
as soon as practicable of any changes in the collection schedule or any factor
which is likely to materially affect the Services.
KASB shall not be under
any liability to the Customer in respect of any loss or damage (including
indirect or consequential loss or damage) however caused, which may be suffered
or incurred or which may arise directly or indirectly due to the acts of the Customer,
its servant or agent or other third parties.
The Customer hereby
covenants and undertakes as follows:-
(a) to strictly ensure
that the Waste is properly segregated, secured, and kept in proper colour-coded
bags and that all Sharp Instruments are properly separated and placed in approved
Sharp Instruments containers. The Customer agrees that KASB is entitled refuse
to collect in whole or in part, Waste which have not been properly segregated
and stored;
(b) to strictly ensure
that only Waste as specified under Annexure 1 shall be loaded on the Site and
be provided to KASB for the purpose of the Services, and further agrees to
indemnify and keep indemnified KASB from and against any damage or losses
suffered by KASB arising from the Customer’s failure, or default or whatsoever,
to ensure that only Waste as specified under Annexure 1 shall or have been
provided to KASB;
(c) to designate a
suitable area at the Site for collection of all Waste. KASB shall not be
obliged to collect any such Waste in the event the designated Site has been
changed without prior sufficient notice being given to KASB;
(d) to ensure that the
Consignment Note provides an accurate description of the Waste and that the
Waste available at the Site for collection by KASB or KASB’s nominated
transporter, wholly conforms with the description and/or information as
provided in the Consignment Note furnished by the Customer, failing which KASB
shall be entitled to refuse or revoke its prior acceptance (where relevant), or
accept such Waste and charge the Customer the additional cost incurred
including but not limited to the charges for handling, transporting, storing
and treating the non-conforming Waste;
(e) to be solely
responsible for the safety and health of all its employees and servants;
(f) to nominate a
representative(s) with authority to sign any Consignment Note or confirm any
inspection of Waste and generally to agree any matter with KASB or its transporter;
(g) to take all
reasonable safety precautions and measures in respect of the handling,
segregation and storage of Waste prior to and up to the time of collection by
KASB;
(h) to comply with all
applicable laws, statutory rules and regulations in effect relating to the
storage, segregation, and handling of Waste and shall keep itself informed of
the laws, statutory rules and regulations which may affect such Waste in its
possession, at all times;
(i) to ensure the proper
use and storage of all Wheeled Bins supplied to the Customer pursuant to this
Agreement which remains the property of KASB and are to be returned to KASB
upon termination of this Agreement;
(j) to replace or
compensate KASB against all damage or loss of bins including to compensate KASB
against all damage or loss of such bins suffered by KASB arising from the
negligence, default, wilful act and/or omission of the Customer or its
employees or agents save that the Customer shall not be liable for any normal
wear and tear of such bins;
(k) to bear the costs
and expenses incurred in relation to the damage or loss of the Wheeled Bins arising
from the negligent, default, and/or wilful act or omission of the Customer or
its employees or agents save for any normal wear and tear of the Wheeled Bins;
(l) to, as and when
instructed, fill and complete the Waste Information Form;
(m) to pay to KASB,
cancellation fees, if the Customer fails to adhere to the Collection Schedule
under Schedule 1A, and/or any other collection time agreed between the
Parties;
(n) to hold clear title
and ensure that there are no legal restrain or order that would prohibit
transfer of possession or title to the Waste for the Services; and
(o) to communicate any
hazards and risks known to the Customer to be incidental in connection to the
Services.
9
TITLE
AND RISK
(a) The risk of
loss and spillage during transportation of the Waste (“Transportation Risk”)
passes to KASB or KASB’s nominated transporter, upon the loading of the
Waste onto the vehicles utilized for the collection of the Waste at the Site.
(b) Save except for the
Transportation Risks, all risks and liability including but not limited to the
ownership, title, and all other incidents of ownership related risks, shall be
borne by the Customer, and such risks and liability shall only be passed to KASB,
after KASB has treated the Waste.
(a) Waste shall be
collected at the time and Site, as the Parties may agree from time to time. At
the time of collection, the Waste shall be weighed by KASB and the weight of
such Waste shall be verified by the representatives of KASB. The weight of such
Waste shall be noted in the Consignment Note. A copy of the Consignment Note shall
be given by KASB to the Customer and shall be conclusive evidence of collection
of the Waste described therein including its weight. The Parties hereby agree
that the weight of Waste as stated by KASB’s weighing equipment shall be final
and conclusive.
(b) In the event that
KASB subsequently determines that:
(i) any of the waste
collected from the Site includes any wastes for which KASB is not licensed to
provide any treatment or disposal service under the laws of Malaysia including
but not limited to the Malaysian Environmental Quality Act 1974 and regulations
thereunder; and/or
(ii) the Waste are in
condition such that it will increase the extent of hazard, or risk undertaken
by KASB,
then KASB reserves
the right to revoke its acceptance of such waste as made at collection from the
Site and such revocation will operate to revest the Transportation Risk to the Customer
as if such Transportation Risk had never been passed to KASB. For the avoidance
of doubt, all risks and liability including but not limited to the ownership,
title, and all other incidents of ownership related risks whatsoever, shall
remain and be borne by the Customer. In such event, KASB shall arrange for the
lawful transportation and return of such waste to the Customer at the Site
within a reasonable time after notice of revocation of acceptance has been
communicated to the Customer unless the Parties agree to an alternative lawful
manner of disposal of such waste. The Customer shall pay KASB for all expenses
incurred by KASB in relation to the return of such waste including but not
limited to the handling, transporting, and storing of such waste, or agreed
alternative disposal, and charges for any work done by KASB prior to the
revocation of the acceptance by KASB. All risks, liabilities and costs arising
from the foregoing shall be borne by the Customer.
Unless
attributable to any negligence, wilful act or breach of this Agreement by KASB,
its directors, officers, employees, servants, and/or agents, the Customer shall
at all times save harmless and indemnify KASB, its directors, officers,
employees and/or servants of KASB and each of the respective successors and
permitted assigns of KASB and each of them (collectively, the “KASB
Indemnified Parties”), from and against all damages, interest, fines,
deficiencies, tax(es), penalties whether or not arising from breach of any laws
or statutory compliance, losses, costs, liabilities and expenses (including
legal fees and disbursements on solicitor-client basis) suffered or incurred by
KASB Indemnified Parties, which may arise out of or in connection with:
(a)
any
breach, negligence, omission, non-observance or non-performance by the Customer,
its directors, employees and/or servants, which relates to the terms of this
Agreement and/or the Customer’s responsibilities under this Agreement; and
(b)
any
act or omission of the Customer, its directors, employees, servants, and/or
agents, which causes KASB Indemnified Parties, directly or indirectly to have
any liability whatsoever under this Agreement.
12 TERMINATION
During the Term, KASB
may forthwith terminate this Agreement as a whole by providing written notice
to the Customer if the Customer is:
(a) in breach of this
Agreement which in case of a breach capable of being remedies, have not
remedied within thirty (30) days of the receipt by the Customer of a notice
from KASB identifying the breach and requiring remedy; or
(b) unable to pay its
debts or enters into compulsory or voluntary liquidation (other than for the
purposes of effecting a reconstruction or amalgamation in such manner that the
company resulting from such reconstruction or amalgamation if a different legal
entity shall agree to be bound by and assume the obligations of the relevant Party
under this Agreement) or compounds with or convenes a meeting of its creditor
or has a receiver or manager or an administrator appointed or ceases for any
reason to carry on business or tales or suffers any similar action which in the
opinion of KASB means that the Customer unable to pay its debts.
For the avoidance of
doubt, termination of this Agreement shall not affect the accrued rights of the
Parties arising in any way out of this Agreement as at the date of termination
including but not limited to the right to recover damages against the other
Party.
Notwithstanding the
terms herein contained in this Agreement, KASB shall be entitled to adjust the Standard
Rates and/or terms of this Agreement, in the event of any changes resulting
from general economic, global conditions, conditions in the Parties’ industry,
region, or changes in applicable law or regulation of Malaysia, which adversely
affects the Services.
Any dispute,
controversy or claim arising out of or in relation to this Agreement, or the
breach, termination or invalidity thereof shall be settled, insofar as it is
possible, by mutual consultation and consent, between the senior managers
and/or chief executive officers of the Parties. If the Parties are unable to
reach mutual consent within thirty (30) days after the notice by either Party
of the dispute, the question shall be settled by arbitration in accordance with
Clause 14.2 below.
In the event the
Parties fail to resolve the dispute amicably within the specified period, such
dispute shall be decided by arbitration in accordance with the Rules for
Arbitration of the Kuala Lumpur Regional Centre for Arbitration (“KLRCA”)
before an arbitrator to be agreed by the Parties or failing agreement within
fourteen (14) days after any Party has given to the other Party a written
request to concur on the appointment of an arbitrator, to be nominated, on the
application of any Party, by the Chairman/Director of the KLRCA. The decision
of the arbitrator shall be final and binding on the Parties. Any such
arbitration shall be heard at the KLRCA using the facilities and system
available at the centre or at such other venues as may be specified by the
arbitrator and agreed by the Parties and the arbitration shall be conducted
wholly in the English language. Notwithstanding the foregoing provision, the
Parties shall not be released from performing their obligations hereunder by
reason of any arbitration proceedings being instituted.
15.1 Any notice,
communications or invoices to be given under this Agreement shall be in writing
and deemed to have been sufficiently given when delivered in person or by
registered mail, postage prepaid, return receipt requested, overnight in mail
or confirmed facsimile transmission to the address of the respective party set
out in this Agreement.
15.2 If any provision of
this Agreement shall be adjudged as illegal, invalid or unenforceable, such
illegality, invalidity or unenforceability shall not affect the legality,
validity or unenforceability of the Agreement as a whole or of any of the
provision hereof not so adjudged.
15.3 Any failure of a
party to enforce any provision of this Agreement will not constitute a waiver
of such provision or prejudice the right of the party to enforce such provision
at a subsequent time.
15.4 This Agreement shall
be binding upon the successor on title, legal representatives and permitted
assign of the parties hereto and shall be deemed a master agreement which terms
and conditions shall be applicable to each and every consignment tendered by
the Customer to KASB.
15.5 No modification,
amendment or waiver of any of the provisions of this Agreement shall be
effective unless made by mutual consent and made in writing by way of supplementary
agreement specifically referring to this Agreement and duly signed by the
Parties. The provisions in respect of such amendment, variation or modification
thereof shall be supplemental to and be read as integral part of this Agreement
which shall remain in full force and effect as between both Parties.
15.6 This Agreement
contains the entire understanding between the Parties with respect to the
subject matter hereof and supersedes and cancel all prior agreements,
representations, acceptance, letter, negotiations, understandings, inducements
or conditions, express or implied, oral or written, between the Parties with
respect to or in connection with any of the matter or things to which this
Agreement applies or refers.
15.7 The Parties shall
hold in strict confidence all information furnished by the other Party under
this Agreement. Any such information shall not be disclosed to any third party
without the prior written consent of the Party which had originally disclosed
such information first being obtained, unless disclosure of such information is
necessary for the proper discharge of either Parties’ rights or obligations
under this Agreement and in law.
15.8 This Agreement shall
be governed by and construed according to the laws of Malaysia and the parties
irrevocably submit to the exclusive jurisdiction of the courts of Malaysia.