SERVICES RENDERED. Customer grants to Contractor the exclusive right to collect and dispose of all of Customer’s solid waste materials, including any recyclable materials if permitted, and agrees to make the payments as provided for herein and as stated on Customer’s invoice, and Contractor agrees to furnish such services and equipment as specified above, all in accordance with the terms and conditions of this Agreement. This Agreement also includes all non-scheduled or on call service with exclusive rights to Contractor. In the event Contractor is rendered unable to perform its obligations hereunder due to an act, event or condition that is beyond Contractor’s control, it shall notify Customer of such event and the obligations of Contractor may be suspended during the continuation of any inability so caused by such event, act or condition. In the event that Customer claims that Contractor is in breach or default of any provisions of this Agreement, Customer must notify Contractor in writing (via certified mail) of the alleged breach or default and allow Contractor at least ten (10) days to cure same prior to Customer terminating, or attempting to terminate, the Agreement.
TERM. This Agreement is a legally binding contract and shall extend for an initial term of three (3) years from the date hereof (the “Initial Term”), and, except where prohibited by law, shall be automatically renewed for successive 3 year terms (each a “Renewal Term”) thereafter, unless either party shall give written notice of non-renewal (via certified mail, which in the case of any notice to Contractor pursuant to this Agreement shall be sent to the address stated on the invoice) to the other at least sixty (60) days but not more than one hundred twenty (120) days prior to the expiration of the Initial Term, or any Renewal Term (together, the “Term”). In the event the Customer should attempt to discontinue or terminate this Agreement other than as provided above, Customer agrees to pay to Contractor as liquidated damages a sum equal to the average of the latest six months invoices sent to the Customer by Contractor multiplied by six (6), or if Customer has not been serviced for six months, an amount equal to Customer's most recent monthly charge multiplied by six. Contractor agrees that if Customer no longer requires any collection services due solely to the discontinuance of its business or the relocation of its business outside the area in which Contractor provides collection service, Customer may terminate this Agreement upon written notice to Contractor (via certified mail) at least sixty (60) days prior to the date of relocation or termination of Customer’s business; provided however, that Customer shall remit all amounts due and owing to Contractor prior to such termination. Notwithstanding the forgoing, Customer agrees that this Agreement applies to any change of location of Customer, and all additional locations of Customer within the area Contractor provides the services contemplated hereunder. This section shall survive any termination or expiration of the Agreement.
EQUIPMENT. The word "equipment" as used herein shall mean all containers, compactors and other equipment used for storage of waste or recyclable material utilized in the performance of this Agreement. Customer acknowledges that it has the care, custody and control of any equipment furnished to Customer while it is at Customer’s premises and accepts sole responsibility, and shall be liable, for all loss and damage, normal wear and tear excepted, to such equipment and for the cleanliness and safekeeping of such equipment. Customer shall not overload any equipment (by weight or volume) and shall use it only for its intended purposes. Customer shall not remove or alter, nor authorize the removal or alteration of, any such equipment without the prior written consent of Contractor, nor shall Customer use the equipment for incineration purposes. Customer shall maintain the equipment and surrounding area in a clean and safe condition and shall secure the equipment at all times to prevent unauthorized access to the equipment, or dumping or looting. All solid waste enclosures must meet the enclosure standards (including, but not limited to, width, height, depth, concrete strength, gate mechanisms, and maintenance and upkeep) of Contractor, which shall be provided to Customer upon request. Contractor will not be responsible in any manner for any damage to an enclosure or for any costs and expenses arising from such damage to an enclosure. Customer shall have no authority to subject the equipment to any lien or encumbrance. Customer shall pay an extra yardage/ pickup fee for any of the following: (i) waste material not properly contained; (ii) waste material exceeding height or internal capacity of the equipment; and (iii) contaminated waste or recyclables. If Contractor is assessed an overweight fine, Customer agrees to pay such fine, in addition to any expenses, charges, fines or fees relating thereto, as set forth on any invoice sent to Customer.
NON-HAZARDOUS WASTE ONLY. Customer represents and warrants to Contractor that all solid waste and material deposited in any equipment, and any such material delivered to Contractor, will not contain (i) any hazardous, biohazardous, infectious, radioactive, volatile, corrosive, highly flammable, explosive, biomedical, or toxic waste as defined by any applicable federal, state, or local laws or regulations, (ii) any waste or material that Contractor is not permitted to accept, transport, handle or deposit, (iii) any waste or material that is deposited in equipment and placed for collection in violation of applicable law or regulation, or (iv) any other toxins, chemicals, wastes, substances, or materials which pose an unreasonable risk to human health or the environment as determined by Contractor (collectively, “unacceptable waste”). Contractor shall not be required to accept such unacceptable waste, and reserves the right to suspend the services to be provided by Contractor as contemplated hereunder, in the event Customer deposits such unacceptable waste in or about the equipment, or places such unacceptable waste for collection by Contractor or its designee. Upon receipt by Customer of notice from Contractor (whether, written or verbal), Customer shall immediately remove all unacceptable waste that Customer has deposited in or about Contractor’s equipment that is determined or suspected by Contractor to be unacceptable waste pursuant to this Agreement or applicable law or regulation. If Customer fails to immediately remove such unacceptable waste, Contractor shall have the right to arrange for lawful disposal of such unacceptable waste at the sole cost and expense of Customer which Customer agrees to pay pursuant to any invoice sent by Contractor. Customer shall indemnify, defend and hold Contractor, and its affiliates, parents, and subsidiaries, and their respective officers, directors, members, managers, employees, agents and representatives (“Contractor Parties”) harmless for any liability, costs, fees, fines, suits, damages and expenses resulting from or arising in connection with placing or depositing such unacceptable waste in or around Contractor’s equipment and shall pay Contractor its reasonable expenses and charges for handling, loading, preparing, transporting, storing and caring for any such unacceptable waste. All title and liability to such unacceptable waste shall at all times remain with Customer, regardless of whether any unacceptable waste is loaded or unloaded. Customer shall, at its sole expense, provide any requested chemical characterization of all waste and other materials and shall give Contractor prior notice of any changes in the waste characteristics, consistency or the waste generation process. Customer shall be solely responsible for complying with applicable laws mandating pretreatment, source separation or the recycling of any waste stream or any approval from governmental agencies.
TITLE. Contractor is vested with title to all acceptable solid waste and materials accepted by Contractor. Any revenue or other value received by Contractor as a result of reclamation, recycling or resource recovery shall be solely for the account of Contractor. All equipment furnished by Contractor for use by the Customer shall remain the property of Contractor and the Customer shall have no right, title or interest in such equipment.
INDEMNITY. Customer agrees to defend, hold harmless and indemnify the Contractor Parties from and against any and all losses, costs, damages, suits, liability, fees, fines, and expenses (including, but not limited to, reasonable investigation and legal expenses) arising out of, or in connection with, (i) death or bodily injuries to any person, destruction or damage to any property, or contamination of or adverse effects on the environment, (ii) any violation of governmental laws, regulations, or orders by Customer, (iii) breach of any representation, warranty, obligation, term or provision of the Agreement by Customer, (iv) use, handling, or operation of any equipment provided to Customer by Contractor, (v) damage to pavement, enclosures or equipment as discussed herein, or (vi) by the negligent or willful acts or omissions of Customer its employees or invitees, agents, designees or its subcontractors. The provisions of this paragraph shall survive the termination, cancellation or expiration of this Agreement.
SERVICE RATE, FEE, AND ASSESSMENT ADJUSTMENTS. Because disposal, transportation, environmental compliance, and fuel costs, and all other costs of doing business, constitute a portion of the service costs provided by Contractor and its affiliates, Customer understands and agrees that Contractor may increase service rates, without prior notice or consent, to account for any increase in such costs, or to account for any increase in transportation costs due to changes in the location of the disposal facility, by showing the amount on the Customer's invoice which Customer agrees to pay. Customer also understands and agrees Contractor may impose, and Customer must pay, any environmental and fuel fees and any other fees, charges and assessments, such as, but not limited to, maintenance or administrative fees, as set forth on Customer's invoice, and that Contractor may increase or decrease these fees, charges or assessments at any time and for any reason by showing the amount on Customer's invoice. Customer further understands and agrees that Contractor may increase the service rates, and all environmental and fuel fees, and any other fees, charges and assessments, such as, but not limited to, maintenance or administrative fees, at any time and for any reason, including to help recover a portion of overall costs incurred by Contractor or its affiliated entities as may be necessary to achieve an operating margin acceptable to Contractor and its affiliates. Customer agrees to pay all such increased amounts as shown on Customer’s invoice. Customer agrees that Contractor may pass through to Customer cost increases caused by weights being higher than those estimated. Customer shall also pay all federal, state, and local taxes, assessments, fees, host fees or charges, or similar charges directly or indirectly related to the transportation, collection, or disposal of solid waste that are imposed on Contractor by law, ordinance, or regulation and/or agreement with a governmental body, whether imposed retroactively or prospectively. In the event or occurrence of an act, event, or condition that is beyond the control of Contractor and that materially or adversely affects the cost of operation by Contractor or maintenance of Contractor's equipment and facilities, Contractor may increase Customer’s service rates, fees, charges, and assessments to the extent necessary to help offset, directly or indirectly, the increase in such costs, which Customer agrees to pay in accordance with any invoice. Contractor may increase service rates, fees, charges, and assessments for reasons other than those set forth above with the consent of the Customer. Such consent may be evidenced verbally, in or by the actions and practices of the parties, or by payment of the invoice service rates, fees, and assessments. Notwithstanding anything to the contrary, if the Customer does not object to an invoice, in writing (via certified mail), within 30 days of the invoice date, the Customer shall have conclusively agreed that such invoice is correct in all respects, whether paid or not.
ACCESS. On collection day, Contractor’s vehicle shall have clear access to the equipment and Customer’s premises. If the equipment is blocked in any way so as to prohibit collection, or Contractor is not granted access to Customer’s premises, Customer will be notified and one additional attempt for collection shall be made by Contractor. Any additional collection attempt will be classified as an "extra pick-up." Contractor shall have the right to charge Customer for the extra pick-up, and Customer agrees to pay such charge as stated on Customer’s invoice. Contractor shall not be liable in any way, and shall not be deemed to be in breach of this Agreement, for the failure to collect any solid waste or materials in the event Contractor did not have or was denied access to the equipment or Customer’s premises.
DRIVEWAYS AND PARKING AREAS. Customer represents and warrants to Contractor that any right-of-way provided by Customer from the equipment location to the most convenient public right-of-way is sufficient to bear the weight of all Contractor’s equipment and vehicles required for the performance of this Agreement. Contractor shall not be responsible for damage, or any costs or expenses arising from such damage, to any pavement curbing, driving surface or accompanying sub-surface resulting from Contractor’s performance of this Agreement.
ATTORNEY'S FEES. If any legal action or any other proceeding is brought by Contractor for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with this Agreement, Contractor shall be entitled to recover reasonable attorneys’ fees, collection fees and other costs (including litigation related costs, costs associated with the engagement of any collection agency, and expert witness fees) leading up to or incurred in that action or proceeding in addition to any other relief to which it may be entitled.
LIMITATION ON LIABILITY. Contractor shall not be liable for any indirect, incidental or consequential damages and its aggregate liability, if any, arising out of this Agreement shall not exceed the aggregate base rate service fees paid to Contractor by Customer, regardless of whether recovery is sought in contract, tort, statute, strict liability or otherwise. EXCEPT AS EXPRESSLY SET FORTH HEREIN, CONTRACTOR MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE EXPRESSLY DISCLAIMED.
ASSIGNMENT AND BENEFIT. Customer may not assign or transfer its rights or obligations under this Agreement without the prior written consent of Contractor. Contractor may assign this Agreement without the consent of Customer, and Customer acknowledges and agrees that any such assignment by Contractor shall release Contractor from any liability under this Agreement from and after the date of the assignment. Subject, to the forgoing, this Agreement shall be binding on the parties and their successors and assigns.
RIGHT TO COMPETE. Customer grants Contractor the right to compete with any offer Customer receives or intends to make or accept relating to any waste services to be rendered after termination of this Agreement and shall give Contractor written notice of any such offer and a reasonable opportunity to respond.
ARBITRATION AGREEMENT, JURY TRIAL WAIVER, AND CLASS ACTION WAIVER CLAUSE. Except for claims by Contractor for collection of payments due and owing by Customer pursuant to any invoice, or individual claims by the Customer against Contractor for property damage, the parties knowingly, voluntarily and irrevocably agree that at the election of either party any controversy or claim arising between them (INCLUDING THOSE CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY PRIOR AGREEMENT) shall be resolved by BINDING ARBITRATION under the rules of the American Arbitration Association, which arbitration shall be governed by and enforceable under the Federal Arbitration Act, and judgement on the award may be entered by any court having jurisdiction thereof. WHETHER IN ARBITRATION OR AS OTHERWISE EXCEPTED ABOVE, NO CLAIMS MAY BE BROUGHT AS A CLASS ACTION, ON A CONSOLIDATED BASIS OR ANY OTHER COLLECTIVE OR REPRESENTATIVE PROCEEDING. The parties acknowledge the service Contractor provides Customer impacts and effects interstate commerce and agree that any dispute about the enforceability or scope of the agreement to arbitrate shall be decided by the arbitrator. The parties’ mutual promises contained herein, including to arbitrate certain disagreements, rather than litigate them before courts or other bodies, provide consideration for each other for this entire clause. EACH PARTY HERETO HEREBY WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING, COUNTERCLAIM OR CROSS-CLAIM BROUGHT BY ANY OF THEM AGAINST THE OTHER AND WAIVES THE RIGHT TO PARTICIPATE AND/OR BE REPRESENTED IN ANY CLASS ACTION. Further, any action (including any arbitration) by Customer against Contractor in connection with this Agreement or any prior Agreement, or arising out of the Agreement or any prior Agreement, must be brought within one (1) year of any alleged breach of contract, tort, violation of statute or other alleged wrongful act. Any proceedings shall be conducted in the location where the services provided by Contractor to the Customer are performed.
SEVERABILITY. The provisions of this Agreement are independent and severable, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that another provision has been determined to be invalid or unenforceable in whole or in part. If any provision of this Agreement is held to be unenforceable, then this Agreement will be deemed amended to the extent necessary to render the otherwise unenforceable provision, and the rest of the Agreement, valid and enforceable. If a court declines to amend this Agreement as provided herein, the invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of the remaining provisions, which shall be enforced as if the offending provision had not been included in this Agreement.
CHANGE OF TERMS. Except as otherwise agreed herein or as may be prohibited by applicable law, Contractor and Customer agree that Contractor may change the pre-printed terms and conditions of this Agreement in the future.
MISCELLANEOUS. Subject to the arbitration provisions set forth above, this Agreement shall be governed by the laws of the state of Missouri without regard to conflicts-of-laws principles that would require the application of any other law and is executed as of the Effective Date specified above. This Agreement constitutes the entire understanding between Contractor and Customer regarding the subject matter hereof and, except as otherwise provided for herein, supersedes all prior negotiations, representations, understandings and agreements, either written or oral, with respect to such subject matter. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy and all of which, when taken together, will be deemed to constitute one and the same agreement. The exchange of copies of this Agreement and of signature pages by facsimile transmission or electronic mail in PDF format will constitute effective execution and delivery of this Agreement as to the parties and may be used in lieu of the original Agreement for all purposes. This is an Agreement for the performance of specific services described herein. Customer’s representations, warranties, indemnifications and the arbitration provisions of this Agreement shall survive termination of this Agreement.
EQUAL EMPLOYMENT OPPORTUNITY. Executive Order 11246, as amended, Sec. 402 of the Vietnam Era Veterans Readjustment Act of 1974, as amended, Sec. 503 of the Rehabilitation Act of 1973, as amended, and Sec. 61-250.10 and 61-300 (Vets-100A Reporting), Executive Order 13496, and Public Law 95-507 contain required contract clauses relative to equal employment opportunity and are incorporated herein by specific reference. The Contractor further agrees to comply with the provisions of 29 CFR part 471. Additionally, this Contractor and subcontractor shall abide by the requirements of 41 CFR 60-741.5(a). This regulation prohibits discrimination against qualified individuals on the basis of disability, and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment of qualified individuals with disabilities.
TERMS. NET 30 DAYS