Terms and Conditions[/section]
THE FOLLOWING DOCUMENT RELATES TO (INCLUDING PERMANENT, TEMPORARY, COMMERCIAL AND RESIDENTIAL WASTE SERVICES)
AS PROVIDED BY WASTE TECH DISPOSAL SERVICES INC (“COMPANY”)
THIS IS A LEGALLY BINDING AGREEMENT.
PLEASE REVIEW THE TERMS AND CONDITIONS CAREFULLY. USE OF THE SERVICES CONSTITUTES ACCEPTANCE OF THESE TERMS.
1.TERMS AND CONDITIONS. The Services (as may be further defined herein) are provided by Company to You the Customer. These Terms and Conditions (“Agreement” or “Terms”) are effective as of the date You agree to these Terms or use the Services (“Effective Date”) and these Terms govern (a) Your use of the Services, including Your use of any equipment or container provided by Company (“Waste Tech Disposal Service INC”) in connection with the Services and (b) the relationship between Company and the user of the Services (“You” or “Customer”).
2.SERVICES RENDERED; WASTE MATERIALS. Customer grants to Company the exclusive right, and Company shall furnish equipment and services, to collect and dispose of and/or recycle all of Customer’s Acceptable Waste or Waste Materials (the “Services”). Customer represents and warrants that the materials to be collected and / or received under this Agreement shall be only “Acceptable Waste” or “Waste Materials” as defined herein. For purposes of this Agreement, “Waste Materials” means all non-hazardous solid waste and Recyclable Materials (subject to Company’s Specifications set forth below for Recyclable Materials (“Specifications”)) generated by Customer or at Customer’s Service Address. Waste Materials may include Special Waste, such as industrial process wastes, asbestos-containing material, petroleum contaminated soils, treated/de-characterized wastes, and demolition debris, provided Customer shall complete a Waste Profile for such Special Waste which has been approved by Company in writing. Recyclable Materials shall include any type of material that can be recycled or recovered whether separated or not separated from other Waste Materials prior to collection. Except as may be specifically allowed as Acceptable Waste as indicated below, Acceptable Waste and Waste Materials specifically exclude, and Customer agrees not to deposit or permit the deposit for collection of, any waste tires, radioactive, volatile, corrosive, flammable, explosive, biomedical, infectious, bio-hazardous, regulated medical or hazardous waste, toxic substance or material, as defined by, characterized or listed under applicable federal, state, or local laws or regulations, or Special Waste not approved in writing by Company (collectively, “Excluded Materials”). Title to and liability for Excluded Materials shall remain with Customer at all times. Title to Acceptable Waste or Waste Materials provided by Customer to Company is transferred to Company upon Company’s receipt or collection unless otherwise provided in this Agreement or applicable law.
3.TERM. The term (“Term”) of this Agreement is set forth on the service summary sheet on the first page of this Agreement (“Summary Sheet”). The initial period after the Effective Date set forth on the Summary Sheet shall be the “Initial Term”. Unless otherwise specified on the Summary Sheet, the Term shall automatically renew for the period set forth on the Summary Sheet (“Renewal Term”) unless either party gives to the other party written notice (per Section 12(e)) of termination at least ninety (90) days, but not more than one hundred eighty (180) days, prior to the termination of the then-existing term.
4.SERVICES GUARANTY; CUSTOMER TERMINATION. If the Company fails to perform the Services described within five (5) business days of Company’s receipt of a written demand from Customer (per Section 12(e)), Customer may terminate this Agreement with the payment of all monies due through the termination date. If Company increases the Charges payable by Customer hereunder for reasons other than as set forth below, Customer shall have the right to terminate this Agreement by written notice to the Company no later than thirty (30) days after Company notifies Customer of such increase in Charges in writing. If Customer so notifies Company of its termination of this Agreement, such termination shall be of no force and effect if Company withdraws or removes such increase within fifteen (15) days after Customer provides timely notification of termination. Absent such termination, the increased Charges shall be binding and enforceable against Customer under this Agreement for the remaining Term.
5.CHARGES; PAYMENTS; ADJUSTMENTS. Upon receipt of an invoice, Customer shall pay for the Services (including repair and maintenance of equipment) furnished by Company in accordance with the Charges on the first page, as such Charges may be adjusted over the term of this Agreement as noted herein (the “Charges”). Company reserves the right to increase the Charges payable by Customer during the Term: (a) for any changes or modifications to, or differences between, the actual equipment and services provided by Company to Customer and the agreed upon specifications for Services on the first page, (b) any change in the composition of the Waste Materials or if the average weight per yard of Customer’s Waste Materials exceeds the amount specified on the first page; (d) to cover any increases in disposal and/or third party transportation costs; (e) to cover increased costs due to uncontrollable circumstances, including, without limitation, changes in local, state or federal laws or regulations, imposition of taxes, fees or surcharges, or acts of God such as floods, fires, hurricanes and natural disasters; and (f) no more often than annually from the Effective Date (or if specified on the first page, Customer’s Last API Date) for increases in the Consumer Price Index plus four percent of the then current Charges. Any increase in Charges enumerated in clauses (a) through (e) above may include an amount for Company’s operating or gross profit margin. Company also reserves the right to charge Customer additional fees if the following additional services are provided to Customer: Enclosure Charge, Services on High Demand Days, Pull-/Push-Out Services, Container Relocation Fee, or Seasonal Restart Fee. In the event Company adjusts the Charges as provided herein, Customer and Company agree that this Agreement as so adjusted will continue in full force and effect for the remaining Term. Any Customer invoice balance not paid within thirty (60) days of the date of invoice is subject to a late fee, and any Customer check returned for insufficient funds is subject to a Non-Sufficient Funds Fee, both to the maximum extent allowed by applicable law. Customer acknowledges that any late fee charged by the Company is not to be considered as interest on debt, is not a penalty, and is a reasonable charge for late payment. In the event that payment is not made when due, Company retains the right to suspend Services until the past due balance is paid in full. In the event that Services are suspended in excess of fifteen (15) days, Company may terminate this Agreement for such default and recover any equipment. For all Charges not paid in advance, Customer’s credit card account on file from the prepayment (or other acceptable credit card) will be charged for such Charges. Any orders cancelled 24 or more hours after the initial order was placed shall incur a $35.00 cancellation fee.
6.CHANGES. Changes in the frequency of collection service, schedule, number, capacity and/or type of equipment, may be agreed to orally, in writing, by payment of the invoice or by the actions and practices of the parties. If Customer changes its Service Address during the Term, this Agreement shall remain valid and enforceable with respect to Services rendered at Customer’s new service location if such location is within Company’s service area.
7.EQUIPMENT, ACCESS. All equipment furnished by Company shall remain the property of Company; however, Customer shall have care, custody and control of the equipment and shall bear responsibility and liability for all loss or damage to the equipment and for its contents while at Customer’s location. Customer shall not overload, move or alter the equipment and shall use the equipment only for its intended purpose. At the termination of this Agreement, Customer shall return the equipment to Company in the condition in which it was provided, normal wear and tear excepted. Customer shall provide unobstructed access to the equipment on the scheduled collection day. Customer shall pay, if charged by Company, an additional fee for any modification of Services caused by or resulting from Customer’s failure to provide access. Customer warrants that Customer’s property is sufficient to bear the weight of Company’s equipment and vehicles and that Company shall not be responsible for any damage to the Customer’s property resulting from the provision of Services. You the Customer agree to let the Company access to your property to return the container.
8.LIQUIDATED DAMAGES. In the event Customer terminates this Agreement prior to the expiration of the Term for any reason other than as set forth herein, or in the event Company terminates this Agreement for Customer’s default, Customer shall pay the following liquidated damages in addition to the Company’s legal fees: (a) if the remaining Initial Term under this Agreement is six (6) or more months, Customer shall pay its most recent monthly Charges multiplied by six (6); (b) if the remaining Initial Term under this Agreement is less than six (6) months, Customer shall pay its most recent monthly Charges multiplied by the number of months remaining in the Term; (c) if the remaining Renewal Term under this Agreement is three (3) or more months, Customer shall pay its most recent monthly Charges multiplied by three (3); or (d) if the remaining Renewal Term under this Agreement is less than three (3) months, Customer shall pay its most recent monthly Charges multiplied by the number of months remaining in the Renewal Term. Customer acknowledges that the actual damage to Company in the event of termination is difficult to fix or prove, and the foregoing liquidated damages amount is reasonable and commensurate with the anticipated loss to Company resulting from such termination and is an agreed upon fee and is not imposed as a penalty. Customer shall pay liquidated damages of $100 for every Customer waste tire discovered at the disposal facility within Customer’s Waste Materials.
9.INDEMNITY. The Company agrees to indemnify, defend and save Customer harmless from and against any and all liability which Customer may be responsible for or pay out as a result of bodily injuries (including death), property damage, or any violation or alleged violation of law, to the extent caused by any negligent act, negligent omission or willful misconduct of the Company or its employees, which occurs (a) during the collection or transportation of Customer’s Acceptable Waste or Waste Materials, or (b) as a result of the disposal of Customer’s Acceptable Waste or Waste Materials in a facility owned by Company, provided that the Company’s indemnification obligations will not apply to occurrences involving Excluded Materials. Customer agrees to indemnify, defend and save the Company harmless from and against any and all liability which the Company may be responsible for or pay out as a result of bodily injuries (including death), property damage, or any violation or alleged violation of law to the extent caused by Customer’s breach of this Agreement or by any negligent act, negligent omission or willful misconduct of the Customer or its employees, agents or contractors in the performance of this Agreement or Customer’s use, operation or possession of any containers or equipment furnished by the Company. Neither party shall be liable to the other for consequential, incidental or punitive damages arising out of the performance of this Agreement, regardless of whether arising under any theory of contract, negligence, strict liability, or otherwise, and regardless of whether or not Customer was advised of the possibility of such damages. This Section will survive any termination of the parties’ relationship.
10.RIGHT OF FIRST REFUSAL. Customer grants to Company a right of first refusal to match any offer of services similar or relating to those Services provided hereunder which Customer receives (or intends to make) upon termination of this Agreement for any reason and Customer shall give Company prompt written notice of any such offer and a reasonable opportunity to respond to it.
11.MISCELLANEOUS. (a) Except for the obligation to make payments hereunder, neither party shall be in default for its failure of, modification of, or delay in performance caused by events or significant threats of events beyond its reasonable control, whether or not foreseeable, including, but not limited to, strikes, labor trouble, riots, imposition of laws or governmental orders (or taxes, fees, or surcharges thereunder or resulting therefrom), fires, acts of war or terrorism, acts of God, the inability to obtain equipment, or acts or omissions of shippers or carriers, and the affected party shall be excused from performance during the occurrence of such events. (b) This Agreement shall be binding on and shall inure to the benefit of the parties hereto and their respective successors and assigns. (c) This Agreement represents the entire agreement between the parties and supersedes any and all other agreements, whether written or oral, that may exist between the parties. (d) This Agreement shall be construed in accordance with the law of the state in which the Services are provided. (e) All written notification to Company required by this Agreement shall be by Certified Mail, Return Receipt Requested. (f) Any blanks or unfilled or unmarked boxes or spaces on the Summary Sheet shall be deemed to be inapplicable and not affect the validity of this Agreement. (g) If any provision of this Agreement is declared invalid or unenforceable, then such provision shall be severed from and shall not affect the remainder of this Agreement; however, the parties shall amend this Agreement to give effect, to the maximum extent allowed, to the intent and meaning of the severed provision. (h) In the event the Company successfully enforces its rights against Customer hereunder, the Customer shall be required to pay the Company’s attorneys’ fees and court costs. (i) No provision of this Agreement will be deemed waived, amended, or modified by You or Company unless such waiver, amendment, or modification is in writing signed by that entity against whom enforcement is sought. (j) Any additional or different term or condition contained in any document furnished by Customer is hereby objected to and rejected by Company. (k) No representation or statement made by any employee, agent, or representative of Company shall be binding on Company to the extent such representation or statement differs from these Terms.
12.RETURNS. If You do not accept these Terms, You may not use the Container or the Services. However, You may return a Container within ten (10) days (the “Return Period”) from the day You received the Container by doing one of the following during the Return Period: (a) return the Container to the place of purchase; or (b) contact Company at the phone number noted above and complete all return instructions.
13.TITLE TO, AND RISK OF LOSS FOR, CONTAINER AND CONTENTS. Unless and until Company, or its designee, receives and accepts the Container: (a) title to and risk of loss of the Container and its contents shall remain with Customer; and (b) Customer is solely responsible for the contents of the Container.
14.Waste Preperation. Customer shall pack and seal the Container in accordance with the instructions included with the Container and any additional instructions that Company may send to the Customer or post on the Company Web Site prior to shipment of the Container by Customer (the “Instructions”). Customer shall pack in the Container only Acceptable Waste, and shall exclude any and all Non-Conforming Waste, as defined below.
15.ACCEPTABLE WASTE/NON-CONFORMING WASTE/ADDITIONAL CHARGES. Customers should check www.wastetechdiposal.com for updates to this list prior to initiating a shipment of a Container in order to ensure that only Acceptable Waste is shipped in the Container. Materials other than the Acceptable Waste indicated as eligible for shipping in each Container, and material having constituents, characteristics, components or properties not included within the list(s) of Acceptable Waste for each Container shall be “Non-Conforming Waste transfer of the Regulated Medical Waste under all applicable federal, state or local laws. ” and any listed or characteristic hazardous waste; (4) containers that are damaged, leaking or could cause harm or exposure to employees, the general public or others.
16.CHARGES FOR FAILURE TO COMPLY WITH TERMS AND INSTRUCTIONS; CHANGED CONDITIONS; AND ADDITIONAL SERVICES. Company reserves the right to charge or bill Customer additional amounts for any of the following: (a) any Container exceeding its specified maximum weight; (b) shipping materials in the wrong Container, or mixing materials in a Container; (c) additional shipping Charges beyond the amounts prepaid for any Prepaid Label; (d) any costs or expenses incurred by Company as a result of Customer’s failure to comply with these Terms or the Instructions, other than the usual and customary costs of Company in the performance of the Tracker Services; or (e) any costs related to changes in applicable law occurring after the date of purchase of the Container.
17.WARRANTY. Company warrants, except where Tracker Services are used in Prohibited States, as follows: (a) the Container has passed, and meets or exceeds the applicable performance standards of federal, state and local regulations; and (b) if the Container is packed, sealed and shipped strictly in accordance with the Instructions, it is adequate to transport Acceptable Waste to the processing facility from authorized points under ordinary commercial shipping conditions. Company disclaims any and all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose. Customer warrants that it will not ship any Non-Conforming Waste in the Container and that Customer will otherwise comply with these Terms and all Instructions.
18.INDEMNITY. Provided Customer complies with these Terms and the Instructions, Company will indemnify, defend and save Customer harmless in accordance with the foregoing Terms, except with respect to any matter related to either a carrier collecting or shipping the Container or any Non Conforming Waste. This Section will survive any termination of the parties’ relationship.
Waste Tech Disposal Services INC