Express Waste Services –
TERMS AND CONDITIONS TO SERVICE AGREEMENT
1. Definition of Equipment. The term “equipment” as used herein, shall mean all equipment and containers furnished by Contractor (Express Waste Management) providing the services as specified on the face of this Agreement. All equipment furnished by Contractor, which Customer has not purchased, shall remain the property of Contractor and Customer shall have no right, title, or interest in the equipment and the equipment shall be returned to Contractor upon termination of this Agreement in the same condition as received, reasonable wear and tear accepted.
2. Duties and Liabilities. Customer shall be responsible for the safekeeping of Contractor’s equipment. Customer shall not remove or move the equipment and shall not permit the equipment to be removed or moved, or make any alterations or improvements without the prior written consent of Contractor. Customer shall not overload the equipment, nor use it for incineration purposes. Customer is liable for any loss, damages or costs in excess of reasonable wear and tear or as a result of overloaded equipment, including any overweight ticket that may be issued to Contractor for loads exceeding the current weight limit of ten tons. In the event this law changes, Customer shall adhere to the new law on weight limits. Customer understands that Contractor cannot weigh the container prior to removal of the loaded container due to the expense involved and thus the liability for overweight violations shall be fully borne by the Customer. Customer shall indemnify, defend and hold Contractor harmless from and against all claims, liabilities damages and penalties, including for injury or death to persons and loss or damage to property, arising out of or in connection with Customer’s use, operations or possession of the equipment. Customer shall keep all information, including but not limited to pricing and terms, in this Agreement confidential as sharing such trade information could cause irreparable harm to Contractor.
3. Changes. The parties may agree to changes in frequency of collection service, locations, or in the number, capacity and type of equipment, orally or in writing. Consent to oral changes shall be evidenced by the actions and practices of the parties and shall become a part of this Agreement. Customer’s change of its business location(s), or sale of its business, shall not terminate this Agreement when the Customer’s new location and/or new owner is within Contractor’s service area unless otherwise provided in writing by Customer. If Customer and/or new owner relocate outside of Contractor’s service area, then Customer shall be released from this Agreement. Contractor may substitute similar, yet equivalent services and/or containers at no extra cost if a specific container is out of stock in inventory.
4. Charges, Financial Responsibility and Payments. Customer shall pay the Contractor in accordance with the schedule of charges or any increases thereto as set forth in this Agreement. Invoices are due
within thirty days of the invoice date. Customer agrees that if payment is not made within thirty days of the date of the invoice, Customer shall pay interest on any past due invoices equal to the greater of 1 1/2% per month or the maximum lawful rate, until paid in full. Customer further agrees that in the event It makes its payments by electronic means, Contractor is entitled to add to those electronic transfers all charges for costs and expenses allowed by this Agreement, including, e.g., costs for overweight tickets, return of rejected waste materials, extra hauling costs if equipment is inaccessible, etc. Customer waives any right to revoke any payments made pursuant to this paragraph. Customer agrees to credit limits set forth by Contractor and agrees to pay sooner if necessary at Contractor’s sole discretion in the event credit limit is exceeded. Pre-payment may be requested at Contractor’s sole discretion. From time to time, at Contractor’s request, Customer shall furnish financial information to Contractor sufficient for Contractor to determine Customer’s creditworthiness under this Agreement. In some instances, Customer may require an additional insured certificate, which upon written request to Contractor shall be provided. Customer hereby agrees to waive any right to dictate insurance requirements to Contractor or withhold any payments due to such.
5. Waste Materials. Customer warrants and represents that the waste materials delivered to Contractor under this Agreement will not contain any hazardous, toxic or radioactive waste or other special wastes as those terms are defined under applicable federal, state and/or local laws or regulations and contain only waste materials that may be disposed of in a Class I landfill. Customer shall retain title to and liability for all waste materials. Contractor shall be entitled to return the equipment to Customer’s site for unloading of waste material that is rejected at the disposal site, or that otherwise violates this paragraph. Recyclable materials loads deemed as being “contaminated” by the driver shall be charged as waste material at fifty dollars per ton disposal plus a re-routing and additional hauling fee of not less than two hundred dollars. Customer shall indemnify, defend and hold Contractor harmless from and against all claims, liabilities, fines and costs of any nature whatsoever, arising out of the breach of the warranty stated above, including extra hauling and/or disposal fees incurred. Customer shall also not load equipment with tree stumps or telephone poles.
6. Services Rendered. This agreement takes effect when signed by the Customer. Customer agrees to retain Contractor (within the Contractor’s service area) as Customer’s exclusive solid waste collection, waste control and waste recycling company for all Customer’s locations within Contractor’s geographical service area. In some instances, due to rushed timing of delivery or other reasons of such nature, a written agreement cannot always be obtained for these new locations and thus in such instances the terms and conditions of this Agreement shall govern with understanding that the price may differ due to reason’s including, but not limited to, the new location’s distance, frequency and/or volume of trash. No additional terms and conditions stated by Customer in its acknowledgement of this Agreement shall be binding upon Contractor unless expressly accepted in writing by the Contractor’s owner/president. This agreement’s terms and conditions shall supersede customer-issued agreements and/or purchase orders.
7. Payment Dispute. In the event Customer fails to pay Contractor for disposal services or equipment or in the event Customer is in default of this Agreement, Contractor may enter Customer’s premises and remove Contractor’s equipment and any materials deposited therein, or may leave equipment on site, without providing service, until payment in full is made. Customer shall remain liable for all monthly fees incurred during suspension of service for non-payment. Customer shall indemnify, defend and hold Contractor harmless from any claims and costs for the removal of Contractor’s equipment and the removal of Customer’s materials from Contractor’s equipment.
8. Placement Areas, Weight Restrictions and Surfaces. Customer warrants and represents that any right of way provided by Customer from Customer’s vehicles/containers placement to the most convenient public way, is sufficient to bear the weight of all of the Contractor’s vehicles, containers and containers’ contents required to perform the service herein contracted. Customer also warrants sufficient overhead and side clearance to accommodate the placement and movement of vehicles/containers. Customer hereby requests and assumes the liability for Contractor to set aside any equipment blocking placement of Contractor’s equipment, including, but not limited to, old containers, so long as Contractor has equipment that is able to operationally do such. Contractor shall not be responsible for damage to any private pavement or accompanying subsurface of any route necessary to perform the services contained herein and shall not be responsible for overhead and/or side obstacles such as electrical wires, overhanging rooflines or eaves, trees, walls, corrals, gates etc, whether such obstacles are within Customer’s lot line or on a neighboring property, in addition to damage to old equipment that is relocated at Customer’s request herein. Customer agrees that Contractor shall have access to its containers at all times. If any containers cannot be accessed immediately by driver for any reason other than Contractor’s sole fault, such as overloading or blocked access, Customer shall pay a two hundred dollars per hour demurrage fee. The demurrage fee shall be charged in fifteen minute increments. Customer also authorizes Contractor to use its best judgment in placing the container(s) if Contractor finds that the Customer’s initial placement request (if given) is not feasible. Relocations and/or “dry runs” shall be charged a minimum of one hundred fifty dollars per occurrence. Unless otherwise set forth in writing by Contractor, a four ton minimum shall be charged by Contractor to Customer on all “haul and ton” pricing and Contractor may estimate tonnage if necessary. Unless otherwise set forth in writing by Contractor, Container(s) for roll off/trailer Customers deemed to be over the tonnage limit shall be charged by Contractor at a rate of fifty dollars per ton for each ton over three tons. Customer shall defend and hold Contractor harmless from all claims, damages suits, penalties, fines, liabilities and extra costs for any such damage or for extra hauling fees due to inaccessibility of equipment. Inactive equipment may be pulled after seven days at Contractor’s sole discretion or may be charged a rental fee of no less than fifteen dollars per day unless otherwise set forth in writing by Contractor.
9. Force Majeure. Contractor’s failure to perform its obligations under this Agreement, if caused by Force Majeure, shall not constitute a breach. “Force Majeure” means any circumstance beyond the reasonable control of Contractor, including, but not limited to, any act of God or a public enemy, accident, explosion, fire, storm, earthquake, other natural disaster, strikes, labor trouble, equipment shortage, riot or war, or mechanical or technological malfunction. If Customer believes that Contractor has not performed in accordance with the Agreement herein, Customer shall bring this to Contractor’s attention in writing, via certified mail, after which Contractor shall have a reasonable time within which to cure and/or respond to any alleged defect that in fact exists. Any operational/service clauses added to this agreement, including, but not limited to, “timed stops”, shall not be guaranteed by Contractor and/or may incur additional charges at Contractor’s discretion.
10. Cost Increases. Because sanitary landfill disposal charges, fuel costs and/or other vendor costs are a significant cost of the services provided by Contractor and/or its vendors under this Agreement, Contractor may increase the price from time to time due to the increased costs of this nature. Contractor makes no guarantees on any rate cap or term modification clauses set forth in this agreement. Such modifications, including, but not limited to rate caps, are merely estimates based on past waste industry data and Contractor shall do its best, in good faith, to adhere to such estimates for at least the first twelve months of this Agreement.
11. Term: The term of this Agreement is for thirty-six months, beginning the date this Agreement is signed. This Agreement shall automatically be extended and renewed for additional twelve-month periods (“Renewal Term”) unless Customer shall give written notice of termination by certified mail, return receipt requested, to the Contractor at least ninety days prior to, but not more than one-hundred-twenty days prior to, the expiration date of the Initial Term or any Renewal Term. Prior to Contractor’s acceptance of cancellation, Contractor shall have the right to match any offers given to Customer by a competitor. Contractor may terminate this agreement at anytime with notice to customer.
12. Early Termination: Customer acknowledges that Contractor and/or its vendors dedicated certain equipment, personnel and/or incurred other debts/commitments to service Customer and has a right to profit in good faith as a business during its relationship with the Customer. In the event that Customer breaches this Agreement, terminates the service prior to the expiration of the Initial Term or any Renewal Term, closes its business, or hauls its own waste, Customer shall be liable to Contractor for all damages suffered or incurred of whatever kind or nature including, without limitation, direct, incidental, and consequential damages (including lost revenue/profits and/or removal of equipment). Customer acknowledges that the actual damages to the Company in the event of termination are difficult to fix or prove, and the following liquidated damages amount is reasonable and commensurate with the anticipated loss to Company resulting from such termination, and is an agreed upon estimate of damages and is not imposed as a penalty. This liquidated damages shall be an amount equal to fifty percent of the product obtained by multiplying the remaining number of months in the term of this Agreement, by the average monthly revenue generated by Customer from the performance start date until the last date of performance. In the event there are less than six months remaining in the term of this Agreement, an additional one thousand nine hundred dollars shall be added to the aforementioned amount if the Customer averaged more than eight hundred dollars per month in revenue. This formula does not include costs for removing the equipment which is a separate charge by Contractor depending on geographical region, along with restocking the inventory and refurbishing said inventory, at a removal and restocking cost not to exceed five thousand dollars at Contractor’s sole discretion.
13. Dispute Resolution. Any disputes arising out of this Agreement shall be exclusively resolved by commencement of suit in the Macomb County Circuit Courts located in Mt. Clemens, Michigan (whichever has jurisdiction over the subject matter at Contractor’s sole discretion) or Contractor, at its sole discretion, may opt to resolve dispute via binding arbitration in Macomb County, Michigan, pursuant to the Rules of the American Arbitration Association. Customer hereby waives its right to trial by jury. If one or more terms/conditions of this Agreement are found to be unenforceable, the remaining terms/conditions shall still be fully applicable. If the Customer feels aggrieved, the Customer shall first advise the Contractor in writing, by certified mail, return receipt requested, not later than seven days after the event giving rise to the alleged dispute. Failure to give proper notice shall be deemed a waiver of any such claim.
14. Attorney’s & Collections Fees. Should Contractor incur any costs in conjunction with enforcing any of the terms of this Agreement, Contractor shall be entitled to reimbursement from Customer. Those costs shall include, but not be limited to, any and all attorney fees, court costs, collections costs, and other costs actually incurred of any kind.
15. Order of Precedence. If any conflict, ambiguities or differences exist in this Agreement, the typed original language shall govern over those which are handwritten/modified.
16. Relationship of the Parties. The parties are independent contracting parties and are not the agent or legal representative of the other for any purpose.
17. Entirety of Agreement. This Agreement as written embodies the entire understanding between Contractor and Customer with respect to the subject matter hereof, and all previous negotiations, discussions and written or oral agreements are hereby superseded by this Agreement. The terms of this Agreement also supersede and control any previous course of dealing or usage in the trade.
18. No Waiver; Cumulative Remedies. Contractor’s delay in enforcing or failure to enforce any of the provisions of this Agreement, or any rights under this Agreement, of the exercise of any election provided in this Agreement, shall not be considered to be a waiver of the right to thereafter enforce such provisions or rights or exercise subsequent elections. Any and all of the rights and remedies conferred upon the Contractor under this Agreement shall be cumulative and in addition to, and not in lieu of, any other rights or remedies at law or in equity.
19. Corporate Authority and Payment Guaranty. The Customer’s Individual signatory (initials) to the front of this Agreement hereby represents that he/she is an authorized agent of Customer, has been directed to enter into this Agreement on behalf of Customer and has full authority to bind Customer to all of the terms and conditions contained in this Agreement. Customer acknowledges that Contractor is relying on these express representations in entering into this Agreement and that such representations are a material inducement to Contractor entering into this Agreement and proceeding with the services outlined above. If the owner or an officer of the Customer is signing this Agreement, the owner or officer Individually signing personally guarantees that payment shall be made should the corporation for any reason fail to make necessary payment(s). Legal action filed against the Individual signing and/or the corporation is at the Contractor’s own discretion.
20. Security. To secure Customer’s payment of its obligations under this Agreement, Customer hereby grants to Contractor a security interest in all personal property assets of Customer and authorizes Contractor to file financing statements to perfect such security interest.
21. Assignment. Contractor reserves the right to assign this Agreement and/or delegate its obligations hereunder. If Customer sells all or part of its business, this Agreement shall be honored by and bind the new owner(s) of Customer’s business. Contractor may utilize a subcontractor at any time in performing the services hereunder.